Opinion
Case No. 1:13-cv-01942-DAD-EPG (PC)
11-21-2016
RICHARD M. SANSONE, Plaintiff, v. J.C. THOMAS, ET AL., Defendants.
ORDER RE: PRODUCTION OF DOCUMENTS SUBMITTED FOR IN CAMERA REVIEW
Plaintiff Richard M. Sansone is a state prisoner proceeding pro se in this civil rights action under 42 U.S.C. § 1983. Plaintiff alleges a violation of his Eighth Amendment rights based on Defendants' excessive use of force against him while he was incarcerated at California State Prison - Corcoran.
Pursuant to the Court's order requiring initial disclosures (ECF No. 54), Defendant J.C. Thomas provided a privilege log indicating he was withholding certain documents pursuant to the Official Information Privilege. During a telephonic initial scheduling conference, as clarified in a subsequent order, the Court ordered Defendant to submit the documents that were withheld for in camera review. (ECF No. 67.) Defendant timely submitted such documents for in camera review. Defendant submitted a privilege log that had been produced to Plaintiff, a declaration by M. Kimbrell, the Litigation Coordinator at CSP - Corcoran, the original response to Plaintiff's requests for production, and documents bates stamped AGO - 0037 to AGO - 0055. The Court has reviewed the documents and orders certain disclosures.
I. LEGAL STANDARDS
In Kerr v. United States Dist. Ct. for the N. Dist. of Cat., 511 F.2d 192 (9th Cir. 1975), aff'd 426 U.S. 394 (1976), the Ninth Circuit Court of Appeals examined the government's claim of the official information privilege as a basis to withhold documents sought under the Freedom of Information Act. It explained that the "common law governmental privilege (encompassing and referred to sometimes as the official or state secret privilege) . . . is only a qualified privilege, contingent upon the competing interests of the requesting litigant and subject to disclosure . . . ." Id.at 198 (internal citations and quotations omitted).
The Ninth Circuit has since followed Kerr in requiring a balancing of interests and in camera review in ruling on the government's claim of the official information privilege. See, e.g., Seminara v. City of Long Beach, 68 F.3d 481 (9th Cir. 1995) (affirming Magistrate Judge order compelling disclosure and stating "Federal common law recognizes a qualified privilege for official information."); Breed v. U.S. Dist. Ct. for N. Dist. of Cat., 542 F.2d 1114, 1116 (9th Cir. 1976) ("Also, as required by Kerr, we recognize 'that in camera review is a highly appropriate and useful means of dealing with claims of governmental privilege.'"); Kerr, 511 F.2d at 198. "Government personnel files are considered official information. 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 v. City of Santa Ana, 936 F.2d 1027, 1033-34 (9th Cir. 1990), as amended on denial of rehg (Feb. 27, 1991), as amended on denial of rehg (May 24, 1991) (internal citations and quotations omitted).
II. ANALYSIS
Defendant has withheld reports, memoranda, and other documents related to a personnel investigation associated with the underlying event in this case. Specifically, the withheld documents include:
• An Incident Commander's Review Report, dated October 28, 2013;
• Manager Review reports for two levels of review, dated October 30, 2013 and December 10, 2013;
• Four reports from the Institutional Executive Review Committee, one dated May 13, 2014 and three dated May 7, 2014; and,
• A report detailing an interview with Plaintiff, dated December 10, 2013.
Notably, some of the documents reference a video tape interview of Plaintiff. It is unclear, however, whether that interview has been produced to Plaintiff or is included within the documents for which Defendant is claiming a privilege.
The Declaration of M. Kimbrell details a number of reasons why the documents should not be disclosed. Among other reasons, Kimbrell states that the process and findings of investigations conducted by CDCR are confidential and that such confidentiality promotes truthfulness in the investigation. Moreover, Kimbrell argues, the investigatory process that CDCR uses must be protected from inmates to preserve it from potential manipulation. Moreover, the documents include sensitive personal information of CDCR employees, which is protected by state law.
Defendants may withhold personal information that is required to protect the privacy and security of correctional officers. This decision is without prejudice to a later request by Plaintiff for sufficient information about the witnesses to compel their attendance at deposition or trial, if necessary. To the extent the documents discuss the investigation policies or procedures that CDCR follows or used in its internal investigation, they are also privileged. Where, however, the documents discuss the underlying facts of the case, no privilege attaches and the documents are discoverable. In some cases, the reviewed documents contain both categories of information and it is appropriate to redact the documents before production.
Specifically, the Court will allow Defendants to withhold Privilege Log Item Nos. 1, 2, and 3 in their entireties. Those documents discuss the applicable CDCR policies and contain little or no unique factual information describing the underlying incident. Rather, they concern administrative actions taken as a result of the investigation. Such internal CDCR proceedings are not relevant to the factual questions in this case and any relevant information is outweighed by concerns regarding revealing internal CDCR procedures.
Privilege Log Item No. 4 is a Memorandum by the Institutional Executive Review Committee, dated May 13, 2014. This document contains a variety of information, including factual information about the incident in question. It also discusses, however, investigative actions taken after the incident, as well as information about other, unrelated incidents. It also contains information about CDCR employees unrelated to the incident in this case. The Court thus determines that this document may be produced in redacted form. In particular, the portions of AGO - 0044 and AGO - 0045 that describe only the sequence of events that occurred on October 22, 2013 should be produced to Plaintiff. The remainder of the Memorandum can be redacted, including, for example, the lower half of AGO - 0045 and the remainder of the document. Substantial portions of the cover page to the memorandum (AG - 0043) have little or no relevance and may be redacted, as well.
Privilege Log Nos. 5, 6, and 7 are, similar to Nos. 1 - 3, focused largely on the administrative actions after the incident occurred and contain little information of relevance to the claims in this case. Thus, the privilege is properly asserted with respect to these documents and disclosure is not required.
Finally, Privilege Log No. 8 is a report dated December 10, 2013 that summarizes an interview of Plaintiff that was conducted after the incident. This document consists of factual information that Plaintiff provided in his interview with correctional officers and does not appear to include information related to actions or investigations that occurred after the incident. This document should thus be produced.
III. CONCLUSION
Accordingly, IT IS HEREBY ORDERED that:
1. Within 14 days from this order, Defendant shall produce to Plaintiff the documents withheld under the official information privilege and provided in camera to the Court as described in this order.
2. Within 30 days from this order, Defendants shall either provide Plaintiff with the
video of Plaintiff's November 22, 2013 interview or provide it to the Court for further in camera review.IT IS SO ORDERED.
Dated: November 21 , 2016
/s/_________
UNITED STATES MAGISTRATE JUDGE