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Dousa v. U.S. Department of Homeland Security ("DHS")

United States District Court, S.D. California

November 22, 2019

KAJI DOUSA, Plaintiff,

          ORDER RE IN CAMERA REVIEW [DOC. NOS. 33, 42.]

          Hon. Karen S. Crawford, United States Magistrate Judge.

         In an Order filed on October 4, 2019, plaintiffs request for expedited discovery was granted to allow limited disclosure of documents to support her Motion for Preliminary Injunction, which is currently pending before the District Court. [Doc. No. 42.] Defendants then produced to plaintiff a privilege log, a supporting declaration, and responsive documents that include redactions based on claims of privilege and privacy. In addition, as required by the Court's Order of October 4, 2019, defendants submitted their privilege log, supporting declaration, and an unredacted copy of the responsive documents for an in camera review. [Doc. No. 42, at p. 17.]

         Plaintiff filed a Response Re: Documents Submitted for In Camera Review arguing that the Court should reject defendants' privilege claims, because some of the redacted documents are central to plaintiffs case, defendants' privilege claims are unfounded and unsupported, and defendants' confidentiality and privacy concerns can be addressed by an appropriate protective order. [Doc. No. 48, at pp. 1-7.]


         Plaintiffs Complaint includes causes of action against the U.S. Department of Homeland Security ("DHS"), U.S. Immigration and Customs Enforcement ("ICE"), the U.S. Customs and Border Protection ("CBP"), and others for: (1) retaliation in violation of the First Amendment; (2) violation of the First Amendment's Free Exercise Clause; and (3) violation of the Religious Freedom Restoration Act (RFRA). [Doc. No. 1, at pp. 35-41.] Plaintiff generally alleges that she is a U.S. citizen and a senior pastor in a Christian church located in New York City. [Doc. No. 1, at pp. 8.] She ministers to, and advocates for, immigrant communities, provides pastoral care to migrants in the United States and Mexico, and leads events to oppose U.S. immigration policy. [Doc. No. 33, at p. 3; Doc. No. 1, at pp. 5-6, 10.] ¶ 2018, plaintiff helped to organize a mobile clinic known as the "Sanctuary Caravan." The Sanctuary Caravan is composed of faith leaders, congregants, and humanitarian workers who provide pastoral care south of the U.S. border to several hundred migrants seeking asylum in the United States. [Doc. No. 1, at p. 11.] The Sanctuary Caravan provides a wide variety of pastoral services to migrants and asylum seekers, who often seek sanctuary in a church, because it is "a recognized place of safety, comfort, counseling, and religious guidance." [Doc. No. 1, a p. 14.] As an example of a pastoral service she provided to migrants, plaintiff represents that she "officiated over Christian marriage ceremonies for migrants who had never before been able to have a church-blessed wedding." [Doc. No. 1, at p. 6.] The Sanctuary Caravan partners with an organization known as Al Otro Lado, which provides legal services to migrants on both sides of the U.S. border. [Doc. No. 1, at p. 15.]

         Based on her own experience, news stories that surfaced following her January 2, 2019 detention, and information she has obtained from other sources about similar targeting of journalists, immigration attorneys, and other advocates, plaintiff contends her rights under the First Amendment and RFRA have been violated. Plaintiff believes she has been targeted for "heightened surveillance" and screening at the border in retaliation for taking part in protected speech and religious activities that are protected by the First Amendment. In addition, plaintiff believes that defendants' policies and practices have severely burdened and impeded the exercise of her religion in violation of RCRA. In her Motion for Preliminary Injunction, she seeks an order requiring defendants to restore her SENTRI status. She also seeks an order prohibiting defendants from targeting her for any adverse treatment in the future because of her protected speech and religious activities in support of immigrant communities, [Doc. No. 25-1, at pp. 34-35.]


         A. Application of the Official Information or Law Enforcement Privilege.

         "Federal common law recognizes a qualified privilege for official information." Sanchez v. City of Santa Ana, 926 F.2d 1027, 1033 (9th Cir. 1990). This qualified privilege is sometimes referred to by other names, such as the "law enforcement privilege" (In re U.S. Dept. of Homeland Security, 459 F.3d 565, 568 (5th Cir. 2006)) or the "ongoing investigation privilege" (Youngblood v. Gates, 112 F.R.D. 342, 345 (CD. Cal. 1985)). "To determine whether the information sought is privileged, courts must weigh the potential benefits of disclosure against the potential disadvantages. If the latter is greater, the privilege bars discovery." Sanchez, 936 F.2d at pp. 1033-1034.

         In civil rights cases, the balancing test "is moderately pre-weighted in favor of disclosure," but "the interests of law enforcement. .. and how much weight to ascribe to them can vary with both the kind of information in question and the situation in which it is being sought." Kelly v. City of San Jose, 114 F.R.D. 653, 661-662 (N.D. Cal. 1987). "For example, law enforcement usually will have a much greater interest in preserving the confidentiality of names of citizen informants in on-going criminal investigations than in keeping secret the factual information provided by percipient witnesses to events that are long since past and about which there will be no prosecution or internal affairs follow-up." Id. at 662.

         Here, defendants' Privilege Log indicates documents or portions of documents have been redacted and withheld from plaintiff because they are "Law Enforcement Sensitive." The Court construes defendants' "Law Enforcement Sensitive" redactions to be assertions of the official information privilege or the law enforcement privilege. As the party asserting the privilege and seeking its benefits, defendants have the burden of establishing that the privilege applies. Kelly, 114 F.R.D. at 662, 664, 669. To satisfy this burden, the government must "offer competent evidence about how the specific requested disclosure would harm governmental interests. If the government makes the equivalent of a prima facie showing of harm, courts must conduct a situation specific analysis of the factors made relevant by the request in issue and the objection to it." Id. at 663, 669. Competent evidence should include a declaration "from a responsible official within the agency who has personal knowledge" explaining "what interests would be harmed, how disclosure under a protective order would cause the harm, and how much harm there would be...." Id. at 669 (emphasis in original).

         The documents submitted for in camera review also include a Declaration by CBP's Acting Deputy Patrol Agent. The Declaration represents that all documents submitted for in camera review "have been maintained by CBP as part of its efforts to investigate, and gather information on, potential unlawful activities involving, or related to, caravans of individuals seeking to enter the United States at or near the San Ysidro Port of Entry ("SYPOE") in late 2018 and early 2019." [Defs.' Exh. 7, Lopez Deck, at p. 2, ] According to the Declaration, release of these documents, "especially the information redacted from the documents," would make it more difficult for CBP to "pursue leads" and continue its investigative efforts "about potentially unlawful activities with respect to the groups and individuals identified." Id. The Court finds that these generalized claims of harm are insufficient to satisfy defendants' burden to establish that all the redacted information should be shielded from disclosure. Based on the Declaration, it is unclear how revealing the unredacted portions of the investigative documents would make it more difficult for CBP to pursue leads. The Declaration also does not address whether "a carefully tailored protective order" could be entered to protect defendants' interest in maintaining the confidentiality of these investigative materials. Kelly, 114 F.R.D. at 666, 672.

         B. In Camera Review of Documents.

         1. Internal File Identification Codes, E-Mail Addresses, ...

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