Sierra v. Spearman et al
ORDER re 55 Documents Withheld on the Basis of the Official Information Privilege signed by Magistrate Judge Erica P. Grosjean on 2/18/2021. (Jessen, A)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
Case No. 1:17-cv-01691-DAD-EPG (PC)
T. THOMPSON and J. CASTELLANOS,
ORDER RE: DOCUMENTS
WITHHELD ON THE BASIS OF THE
(ECF No. 55)
Francisco Sierra (“Plaintiff”) is a state inmate proceeding pro se and in forma pauperis in
this civil rights action. This case now proceeds on Plaintiff’s First Amended Complaint (ECF
No. 16) against Defendant T. Thompson for retaliation in violation of the First Amendment and
Defendant J. Castellanos for cruel and unusual punishment in violation of the Eighth Amendment,
(ECF Nos. 19, 25, 26).
On January 21, 2021, Defendants filed documents for in camera review, seeking to
withhold certain documents under the official information privilege. (ECF No. 55) (notice of
filing). This submission was in response to the Court’s December 4, 2020 order to provide, for in
camera review, witness statements and evidence gathered from investigations into the incidents at
issue in the complaint, to the extent Defendants seek to withhold any such documents pursuant to
the official information privilege. (ECF No. 50 at 6).
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. . . .” Kerr v. U.S. Dist. Ct.
for N. Dist. of Cal., 511 F.2d 192, 198 (9th Cir. 1975) (internal citations omitted). The Ninth
Circuit has since followed Kerr in requiring in camera review and a balancing of interests in
ruling on the government’s claim of the official information privilege. See, e.g., Breed v. U.S.
Dist. Ct. for N. Dist. of Cal., 542 F.2d 1114, 1116 (9th Cir. 1976) (“[A]s required by Kerr, we
recognize ‘that in camera review is a highly appropriate and useful means of dealing with claims
of governmental privilege.’”) (quoting Kerr v. U. S. Dist. Ct. for N. Dist. of Cal., 426 U.S. 394,
406 (1976)); Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033-34 (9th Cir. 1990), as amended
on denial of reh'g (Feb. 27, 1991), as amended on denial of reh’g (May 24, 1991) (“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.”) (internal citations omitted).
The Court has reviewed the submitted documents, Defendants’ brief, and the declaration
of J. Barba, the litigation coordinator at Substance Abuse Treatment Facility and State Prison-
Corcoran. The government has established that it has legitimate security interests in withholding
the documents, many of which are related to an incident log. The interests are specific and
supported by Barba’s declaration. Plaintiff has a reduced interest in these documents because
Defendants have already disclosed other portions of the incident log to Plaintiff. After weighing
the potential benefits of disclosure against the potential disadvantages, the Court finds, on
balance, the potential disadvantages are greater and the official information privilege bars
Accordingly, IT IS HEREBY ORDERED that Defendants may withhold the undisclosed
documents submitted for in camera review.
IT IS SO ORDERED.
February 18, 2021
UNITED STATES MAGISTRATE JUDGE
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