1 2 3 4 5 6 7 10 11 KING SOLOMON, Case No. 1:22-cv-01604-KES-HBK (PC) 12 Plaintiff, ORDER RE: PRODUCTION OF DOCUMENTS SUBMITTED FOR IN 13 v. CAMERA REVIEW
14 PRADA and TAPIA, (Doc. No. 40) 15 Defendants. 16 17 On December 4, 2024, the Court granted in part Plaintiff’s Motion to Compel Discovery 18 and ordered Defendants to submit for in camera review certain documents for which Defendants 19 asserted official information privilege. (Doc. No. 40). Pursuant to that Order, Defendants 20 submitted to the Court both redacted and unredacted documents related to the investigation, seven 21 audio recordings, and one video recording. Upon review of the materials submitted, the Court 22 finds that the redacted “AIMS Report” and the redacted documentary and audio-video exhibits to 23 the investigation are sufficiently relevant to Plaintiff’s claims to outweigh the government’s 24 interest in the confidentiality of those records. Thus, the Court will order Defendants to permit 25 Plaintiff to review these materials in a secure setting but not retain the materials. 27 A. Legal Standard 28 The Ninth Circuit recognizes a qualified privilege for official information. Kerr v. U.S. 1 Dist. Ct. for the N. Dist. of Cal., 511 F.2d 192, 198 (9th Cir.1975), aff’d, 426 U.S. 394 (1976). 2 However, “common law governmental privilege (encompassing and referred to sometimes as the 3 official or state secret privilege) . . . is only a qualified privilege, contingent upon the competing 4 interests of the requesting litigant and subject to disclosure . . .” Id. at 198 (internal citations 5 omitted). Thus, a “court must balance the government’s interest in protecting official information 6 from disclosure against the plaintiff’s need for the information.” Edwards v. Cnty. of L.A., 2009 7 WL 4707996, at *2–3 (C.D. Cal. Dec. 9, 2009). This balancing test is “moderately pre-weighted 8 in favor of disclosure” in civil rights cases. Kelly v. San Jose, 114 F.R.D. 653, 661 (N.D. Cal. 9 1987). 10 When the official information privilege is invoked to prevent disclosure of government 11 records, courts should conduct an in camera review to determine whether the privileged 12 documents relevancy compels their disclosure. See, e.g., Seminara v. City of Long Beach, 68 13 F.3d 481 (9th Cir. 1995); Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033–34 (9th Cir. 1990), 14 as amended on denial of reh'g (Feb. 27, 1991), as amended on denial of reh'g (May 24, 1991) 15 (internal citations omitted) (“Government personnel files are considered official information. To 16 determine whether the information sought is privileged, courts must weigh the potential benefits 17 of disclosure against the potential disadvantages. If the latter is greater, the privilege bars 18 discovery.”). In the past, this Court has compelled the disclosure of documents after either an in 19 camera review and redaction or subject to a protective order despite the invocation of official 20 information privilege. See, e.g., Caruso v. Solorio, 2018 WL 2254365, at *2 (E.D. Cal. May 17, 21 2018); Noble v. City of Fresno, 2017 WL 5665850, at *8 (E.D. Cal. Nov. 27, 2017). 22 B. Analysis 23 Here, Defendants assert official information privilege as to the AIMS Report1 and related 24 records. The AIMS Report summarizes the investigating lieutenant’s interviews with five 25 inmates (including Plaintiff) and with the two correctional officer Defendants. The interviews of 26 the four inmate-witnesses were conducted in December 2021, roughly five months after the 27
28 1 The official title of the document provided is “Grievance Allegation Inquiry Report.” 1 alleged incident giving rise to Plaintiff’s claim. The Report notes that the inmates were selected 2 because they were housed in Plaintiff’s unit at the time of the incident. Each inmate-witness 3 denied ever having seen an altercation between Plaintiff and the two Defendants, and three of 4 them deny even recognizing Plaintiff. The two Defendants likewise deny the allegations 5 altogether. 6 The Court finds the AIMS Report to have significant relevance to Plaintiff’s claims, given 7 that if true, the statements contained therein have a “tendency to make a fact [of consequence in 8 determining the action] more or less probable than it would be without the evidence.” See Fed. 9 R. Evid. 401 (emphasis added). The fact that four presumably neutral witnesses, who were 10 housed in Plaintiff’s unit at the relevant time, deny any knowledge of the incident makes the facts 11 alleged in Plaintiff’s claim less probable and thus highly relevant to the action. 12 As to the government’s countervailing interest in the confidentiality of official 13 information, Defendants have redacted the Report to remove any identifying information for the 14 inmate witnesses or other sensitive information that could threaten the security of the institution. 15 The Court finds the redactions reasonable and that on balance the relevance of the documents 16 outweighs Defendants’ limited interest in maintaining the confidentiality of the government 17 information. See Sanchez, 936 F.2d at 1033-34. Moreover, any concern about disclosure of 18 potentially sensitive information is further mitigated by Defendants’ proposal that Plaintiff only 19 be permitted to review the documents in a secure setting, and not be permitted to retain copies of 20 the documents. The Court finds these protective measure appropriate. 21 The Exhibits to the AIMS Report include seven audio interviews (of the four inmate 22 witnesses, the two Defendants, and Plaintiff), one video interview of Plaintiff, and documentary 23 exhibits including advisements sent to Defendants regarding the investigation and other CDCR 24 records. The Court has reviewed the audio of the interviews conducted by the investigating 25 lieutenant, compared them to the summaries provided in the AIMS Report, and certifies that the 26 summaries are accurate. Nevertheless, the recordings may contain some additional information 27 not included in the summaries. Given the obvious security concerns involved in disclosing the 28 identity of the inmate witnesses, the Court finds the government’s redactions of the entire audio 1 recordings appropriate, and that its interest in security and protection of inmates outweighs the 2 limited benefit of disclosing the audio recordings of those interviews to Plaintiff. See Sanchez, 3 936 F.2d at 1033-34. 4 Those same security concerns are significantly less with respect to the interviews 5 conducted with Plaintiff, Tapia, and Parra. No information posing an obvious threat to the 6 security or privacy of the two Defendants is disclosed in their interviews. Meanwhile, the 7 recordings may provide some additional relevant information not contained in the interview 8 summaries. Thus, the Court finds disclosure of these recordings outweighs the government’s 9 limited interest in the confidentiality of the recordings. To the extent Plaintiff wishes to review 10 the audio recordings of the interviews with him, Defendants Tapia or Parra, CDCR shall make the 11 recordings, redacted if appropriate,2 available for Plaintiff to review in a secure setting. 12 As to the documentary exhibits, these have been heavily redacted but nevertheless may 13 contain some information relevant to Plaintiff’s claims. Given the very limited government 14 interest in maintaining confidentiality of the remaining unredacted information, the Court will 15 order these redacted documentary exhibits disclosed as well, subject to the same protective 16 measures described above. 17 Accordingly, it is ORDERED: 18 1.
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1 2 3 4 5 6 7 10 11 KING SOLOMON, Case No. 1:22-cv-01604-KES-HBK (PC) 12 Plaintiff, ORDER RE: PRODUCTION OF DOCUMENTS SUBMITTED FOR IN 13 v. CAMERA REVIEW
14 PRADA and TAPIA, (Doc. No. 40) 15 Defendants. 16 17 On December 4, 2024, the Court granted in part Plaintiff’s Motion to Compel Discovery 18 and ordered Defendants to submit for in camera review certain documents for which Defendants 19 asserted official information privilege. (Doc. No. 40). Pursuant to that Order, Defendants 20 submitted to the Court both redacted and unredacted documents related to the investigation, seven 21 audio recordings, and one video recording. Upon review of the materials submitted, the Court 22 finds that the redacted “AIMS Report” and the redacted documentary and audio-video exhibits to 23 the investigation are sufficiently relevant to Plaintiff’s claims to outweigh the government’s 24 interest in the confidentiality of those records. Thus, the Court will order Defendants to permit 25 Plaintiff to review these materials in a secure setting but not retain the materials. 27 A. Legal Standard 28 The Ninth Circuit recognizes a qualified privilege for official information. Kerr v. U.S. 1 Dist. Ct. for the N. Dist. of Cal., 511 F.2d 192, 198 (9th Cir.1975), aff’d, 426 U.S. 394 (1976). 2 However, “common law governmental privilege (encompassing and referred to sometimes as the 3 official or state secret privilege) . . . is only a qualified privilege, contingent upon the competing 4 interests of the requesting litigant and subject to disclosure . . .” Id. at 198 (internal citations 5 omitted). Thus, a “court must balance the government’s interest in protecting official information 6 from disclosure against the plaintiff’s need for the information.” Edwards v. Cnty. of L.A., 2009 7 WL 4707996, at *2–3 (C.D. Cal. Dec. 9, 2009). This balancing test is “moderately pre-weighted 8 in favor of disclosure” in civil rights cases. Kelly v. San Jose, 114 F.R.D. 653, 661 (N.D. Cal. 9 1987). 10 When the official information privilege is invoked to prevent disclosure of government 11 records, courts should conduct an in camera review to determine whether the privileged 12 documents relevancy compels their disclosure. See, e.g., Seminara v. City of Long Beach, 68 13 F.3d 481 (9th Cir. 1995); Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033–34 (9th Cir. 1990), 14 as amended on denial of reh'g (Feb. 27, 1991), as amended on denial of reh'g (May 24, 1991) 15 (internal citations omitted) (“Government personnel files are considered official information. To 16 determine whether the information sought is privileged, courts must weigh the potential benefits 17 of disclosure against the potential disadvantages. If the latter is greater, the privilege bars 18 discovery.”). In the past, this Court has compelled the disclosure of documents after either an in 19 camera review and redaction or subject to a protective order despite the invocation of official 20 information privilege. See, e.g., Caruso v. Solorio, 2018 WL 2254365, at *2 (E.D. Cal. May 17, 21 2018); Noble v. City of Fresno, 2017 WL 5665850, at *8 (E.D. Cal. Nov. 27, 2017). 22 B. Analysis 23 Here, Defendants assert official information privilege as to the AIMS Report1 and related 24 records. The AIMS Report summarizes the investigating lieutenant’s interviews with five 25 inmates (including Plaintiff) and with the two correctional officer Defendants. The interviews of 26 the four inmate-witnesses were conducted in December 2021, roughly five months after the 27
28 1 The official title of the document provided is “Grievance Allegation Inquiry Report.” 1 alleged incident giving rise to Plaintiff’s claim. The Report notes that the inmates were selected 2 because they were housed in Plaintiff’s unit at the time of the incident. Each inmate-witness 3 denied ever having seen an altercation between Plaintiff and the two Defendants, and three of 4 them deny even recognizing Plaintiff. The two Defendants likewise deny the allegations 5 altogether. 6 The Court finds the AIMS Report to have significant relevance to Plaintiff’s claims, given 7 that if true, the statements contained therein have a “tendency to make a fact [of consequence in 8 determining the action] more or less probable than it would be without the evidence.” See Fed. 9 R. Evid. 401 (emphasis added). The fact that four presumably neutral witnesses, who were 10 housed in Plaintiff’s unit at the relevant time, deny any knowledge of the incident makes the facts 11 alleged in Plaintiff’s claim less probable and thus highly relevant to the action. 12 As to the government’s countervailing interest in the confidentiality of official 13 information, Defendants have redacted the Report to remove any identifying information for the 14 inmate witnesses or other sensitive information that could threaten the security of the institution. 15 The Court finds the redactions reasonable and that on balance the relevance of the documents 16 outweighs Defendants’ limited interest in maintaining the confidentiality of the government 17 information. See Sanchez, 936 F.2d at 1033-34. Moreover, any concern about disclosure of 18 potentially sensitive information is further mitigated by Defendants’ proposal that Plaintiff only 19 be permitted to review the documents in a secure setting, and not be permitted to retain copies of 20 the documents. The Court finds these protective measure appropriate. 21 The Exhibits to the AIMS Report include seven audio interviews (of the four inmate 22 witnesses, the two Defendants, and Plaintiff), one video interview of Plaintiff, and documentary 23 exhibits including advisements sent to Defendants regarding the investigation and other CDCR 24 records. The Court has reviewed the audio of the interviews conducted by the investigating 25 lieutenant, compared them to the summaries provided in the AIMS Report, and certifies that the 26 summaries are accurate. Nevertheless, the recordings may contain some additional information 27 not included in the summaries. Given the obvious security concerns involved in disclosing the 28 identity of the inmate witnesses, the Court finds the government’s redactions of the entire audio 1 recordings appropriate, and that its interest in security and protection of inmates outweighs the 2 limited benefit of disclosing the audio recordings of those interviews to Plaintiff. See Sanchez, 3 936 F.2d at 1033-34. 4 Those same security concerns are significantly less with respect to the interviews 5 conducted with Plaintiff, Tapia, and Parra. No information posing an obvious threat to the 6 security or privacy of the two Defendants is disclosed in their interviews. Meanwhile, the 7 recordings may provide some additional relevant information not contained in the interview 8 summaries. Thus, the Court finds disclosure of these recordings outweighs the government’s 9 limited interest in the confidentiality of the recordings. To the extent Plaintiff wishes to review 10 the audio recordings of the interviews with him, Defendants Tapia or Parra, CDCR shall make the 11 recordings, redacted if appropriate,2 available for Plaintiff to review in a secure setting. 12 As to the documentary exhibits, these have been heavily redacted but nevertheless may 13 contain some information relevant to Plaintiff’s claims. Given the very limited government 14 interest in maintaining confidentiality of the remaining unredacted information, the Court will 15 order these redacted documentary exhibits disclosed as well, subject to the same protective 16 measures described above. 17 Accordingly, it is ORDERED: 18 1. Plaintiff’s Motion to Compel (Doc. No. 37) is granted in part. Within 14 days from 19 the date of this order, Defendants shall permit Plaintiff to review the following 20 documents withheld under the official information privilege and provided in camera to 21 the Court: 22 a. The redacted Grievance Allegation Inquiry Report dated December 8, 2021 23 regarding Grievance Log # 136737. 24 b. The redacted documentary Exhibits to the Grievance Allegation Inquiry Report 25 dated December 8, 2021. 26 c. Audio recordings of the witness interviews with Plaintiff, Defendant Parra, and 27 2 CDCR notes that it intends to redact only the name of the staff member who conducted the interview, 28 which the Court finds appropriate. 1 Defendant Tapia, redacted as appropriate, and the video recording of the 2 interview with Plaintiff. 3 2. The Court approves CDCR’s request that Plaintiff only be permitted to review these 4 materials in a secure setting and that he not be permitted to retain copies of any 5 materials. To the extent Plaintiff wishes to attach any of the materials to a dispositive 6 motion, he may seek assistance in doing so from the Litigation Coordinator at his 7 institution. 8 ” | Dated: _ December 11, 2024 law Th. Doareh Hack 10 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE
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