Ibrahim v. Department of Homeland et al

Filing 462

ORDER REGARDING PLAINTIFF'S MOTION TO COMPEL by Judge William Alsup [granting in part and denying in part 458 Motion ; granting in part and denying in part 460 Motion]. Formerly filed under seal and ex parte now unsealed. (whasec, COURT STAFF) (Filed on 4/19/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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RAHINAH IBRAHIM,

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For the Northern District of California

United States District Court

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Plaintiff,

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No. C 06-00545 WHA

v.

ORDER REGARDING
PLAINTIFF’S
MOTION TO COMPEL

DEPARTMENT OF HOMELAND
SECURITY, et al.

UNDER SEAL AND EX PARTE
Defendants.
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INTRODUCTION

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In this civil rights action, plaintiff moves to compel certain documents the federal

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government deems classified. To the extent below, defendants are ordered to show cause as to

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why certain withheld documents should not be produced.

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ANALYSIS

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While it is true “[t]he Supreme Court has recognized that courts must act in the interest of

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the country’s national security to prevent disclosure of state secrets[,]” (Opp. at 20 (citing United

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States v. Reynolds, 345 U.S. 1 (1953)), the extension of the state secrets privilege is not a given,

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nor an absolute. Under Reynolds, analysis of a state secrets privilege claim has three steps:

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[First, a court must] “ascertain that the procedural requirements for
invoking the state secrets privilege have been satisfied.” Second,
[it] must make an independent determination whether the
information is privileged.... Finally, “the ultimate question to be
resolved is how the matter should proceed in light of the successful
privilege claim.”

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Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1080 (9th Cir. 2010) (en banc) (quoting

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Al-Haramain Islamic Foundation, Inc. v. Bush, 507 F.3d 1190 (9th Cir. 2007)).

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1.

PROCEDURAL REQUIREMENTS FOR INVOKING
THE PRIVILEGE HAVE BEEN SATISFIED.

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“To ensure that the [state secrets] privilege is invoked no more often or extensively than
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necessary . . . ‘[t]here must be a formal claim of privilege, lodged by the head of the department
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which has control over the matter, after actual personal consideration by that officer.’”
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Jeppesen, 614 F.3d at 1080 (quoting Reynolds, 345 U.S. at 7–8). The sworn declarations
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appended to defendants’ opposition qualify as formal claims of the privilege from the heads of
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the respective departments, and they demonstrate that each actually and personally considered
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here.
For the Northern District of California

United States District Court

the matter. Therefore, defendants meet the procedural requirements for invoking the privilege
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2.
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AN INDEPENDENT EXAMINATION REVEALED
SOME DOCUMENTS THAT COULD BE PRODUCED.

Once the procedural requirements for invoking the privilege are met, courts proceed to

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independently determine whether the information is privileged. According to our court of

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appeals:

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The court must sustain a claim of privilege when it is satisfied, from
all the circumstances of the case, that there is a reasonable danger
that compulsion of the evidence will expose . . . matters which, in
the interest of national security, should not be divulged. If this
standard is met, the evidence is absolutely privileged, irrespective
of the plaintiffs’ countervailing need for it. [E]ven the most
compelling necessity cannot overcome the claim of privilege if the
court is ultimately satisfied that [state] secrets are at stake.

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Jeppesen, 614 F.3d at 1081 (internal quotations and citations omitted) (emphasis added).
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After a careful review of the classified materials by the Court, this order concludes that a
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few documents could potentially be produced with little or no modifications to them. First, any
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correspondence directly from plaintiff to defendants (and vice versa) cannot be classified and
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should be produced without restriction (FBICLASS000311; FBICLASS000329–330). Second,
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some classified documents appear to contain mostly unclassified material, save one or two
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classified paragraphs. Specifically, defendants could produce several largely unclassified
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internal documents with little inconvenience (FBICLASS000417–447; FBICLASS000449–475;
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FBICLASS000477–502; FBICLASS000503–509; FBICLASS000510–531;

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FBICLASS000532–558; FBICLASS000559–587). Whereas the existence or non-existence of

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certain items, techniques, or procedures can sometimes be classified in and of themselves, that

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does not appear to be the case for the aforementioned documents.
At least once, our court of appeals approved of a “case-by-case” approach for a court to

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federal government to use classified information. Al Haramain Islamic Foundation, Inc. v. U.S.

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Dep’t of Treasury, 686 F.3d 965, 982–84 (9th Cir. 2011). These measures included having the

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government provide unclassified summaries of the classified materials or providing plaintiff’s

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counsel with the necessary security clearance. Ibid. This order does not intend to go so far for

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For the Northern District of California

impose various “reasonable measure[s] to mitigate the potential unfairness” of allowing the

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United States District Court

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the majority of the classified documents here (although counsel are cleared for sensitive material,

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they are not cleared to receive classified information). But, after review of all the classified

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material, this order independently determines that in addition to correspondence between the

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parties, the two internal training documents are eligible for production to plaintiff’s counsel

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without implicating national security. Defendants are ordered to show cause as to why the

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documents should not be produced. Specifically, the document numbers covered by this order

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are:

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FBICLASS000311
FBICLASS000329–330
FBICLASS000417–447
FBICLASS000449–475
FBICLASS000477–502
FBICLASS000503–509
FBICLASS000510–531
FBICLASS000532–558
FBICLASS000559–587.

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3.

THE “ULTIMATE QUESTION” WILL NOT BE REACHED
UNTIL THE MOTION IS RESOLVED.

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This order does not reach the third and final step of the Reynolds test as the issue of
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whether the above listed documents should be produced is not yet settled.
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CONCLUSION
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Defendants are ordered to show cause as to why the above mentioned documents should
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not be produced and as to why this order should not be made public by 12:00 P.M. (PST),
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APRIL 7, 2013. This order is not requesting further briefing on any other privileges that are or

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may be asserted over the aforementioned documents. The Court will decide on the other

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privileges based on the record currently available.

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IT IS SO ORDERED.
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Dated: April 2, 2013.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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