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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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 RAHINAH IBRAHIM, 11 For the Northern District of California United States District Court 10 Plaintiff, 12 13 14 15 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. / 16 17 INTRODUCTION 18 In this civil rights action, plaintiff moves to compel certain documents the federal 19 government deems classified. To the extent below, defendants are ordered to show cause as to 20 why certain withheld documents should not be produced. 21 ANALYSIS 22 While it is true “[t]he Supreme Court has recognized that courts must act in the interest of 23 the country’s national security to prevent disclosure of state secrets[,]” (Opp. at 20 (citing United 24 States v. Reynolds, 345 U.S. 1 (1953)), the extension of the state secrets privilege is not a given, 25 nor an absolute. Under Reynolds, analysis of a state secrets privilege claim has three steps: 26 27 28 [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.” 1 Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1080 (9th Cir. 2010) (en banc) (quoting 2 Al-Haramain Islamic Foundation, Inc. v. Bush, 507 F.3d 1190 (9th Cir. 2007)). 3 1. PROCEDURAL REQUIREMENTS FOR INVOKING THE PRIVILEGE HAVE BEEN SATISFIED. 4 “To ensure that the [state secrets] privilege is invoked no more often or extensively than 5 necessary . . . ‘[t]here must be a formal claim of privilege, lodged by the head of the department 6 which has control over the matter, after actual personal consideration by that officer.’” 7 Jeppesen, 614 F.3d at 1080 (quoting Reynolds, 345 U.S. at 7–8). The sworn declarations 8 appended to defendants’ opposition qualify as formal claims of the privilege from the heads of 9 the respective departments, and they demonstrate that each actually and personally considered 10 here. For the Northern District of California United States District Court the matter. Therefore, defendants meet the procedural requirements for invoking the privilege 11 12 2. 13 14 AN INDEPENDENT EXAMINATION REVEALED SOME DOCUMENTS THAT COULD BE PRODUCED. Once the procedural requirements for invoking the privilege are met, courts proceed to 15 independently determine whether the information is privileged. According to our court of 16 appeals: 17 18 19 20 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. 21 Jeppesen, 614 F.3d at 1081 (internal quotations and citations omitted) (emphasis added). 22 After a careful review of the classified materials by the Court, this order concludes that a 23 few documents could potentially be produced with little or no modifications to them. First, any 24 correspondence directly from plaintiff to defendants (and vice versa) cannot be classified and 25 should be produced without restriction (FBICLASS000311; FBICLASS000329–330). Second, 26 some classified documents appear to contain mostly unclassified material, save one or two 27 classified paragraphs. Specifically, defendants could produce several largely unclassified 28 internal documents with little inconvenience (FBICLASS000417–447; FBICLASS000449–475; 2 1 FBICLASS000477–502; FBICLASS000503–509; FBICLASS000510–531; 2 FBICLASS000532–558; FBICLASS000559–587). Whereas the existence or non-existence of 3 certain items, techniques, or procedures can sometimes be classified in and of themselves, that 4 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 5 federal government to use classified information. Al Haramain Islamic Foundation, Inc. v. U.S. 8 Dep’t of Treasury, 686 F.3d 965, 982–84 (9th Cir. 2011). These measures included having the 9 government provide unclassified summaries of the classified materials or providing plaintiff’s 10 counsel with the necessary security clearance. Ibid. This order does not intend to go so far for 11 For the Northern District of California impose various “reasonable measure[s] to mitigate the potential unfairness” of allowing the 7 United States District Court 6 the majority of the classified documents here (although counsel are cleared for sensitive material, 12 they are not cleared to receive classified information). But, after review of all the classified 13 material, this order independently determines that in addition to correspondence between the 14 parties, the two internal training documents are eligible for production to plaintiff’s counsel 15 without implicating national security. Defendants are ordered to show cause as to why the 16 documents should not be produced. Specifically, the document numbers covered by this order 17 are: 18 22 • • • • • • • • • FBICLASS000311 FBICLASS000329–330 FBICLASS000417–447 FBICLASS000449–475 FBICLASS000477–502 FBICLASS000503–509 FBICLASS000510–531 FBICLASS000532–558 FBICLASS000559–587. 23 3. THE “ULTIMATE QUESTION” WILL NOT BE REACHED UNTIL THE MOTION IS RESOLVED. 19 20 21 24 This order does not reach the third and final step of the Reynolds test as the issue of 25 whether the above listed documents should be produced is not yet settled. 26 CONCLUSION 27 Defendants are ordered to show cause as to why the above mentioned documents should 28 not be produced and as to why this order should not be made public by 12:00 P.M. (PST), 3 1 APRIL 7, 2013. This order is not requesting further briefing on any other privileges that are or 2 may be asserted over the aforementioned documents. The Court will decide on the other 3 privileges based on the record currently available. 4 IT IS SO ORDERED. 5 6 Dated: April 2, 2013. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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