Vietnam Veterans of America et al v. Central Intelligence Agency et al

Filing 423

ORDER RE: APRIL 12 AND MAY 1, 2012 IN CAMERA SUBMISSION OF DOCUMENTS. Signed by Magistrate Judge Jacqueline Scott Corley on 5/14/2012. (ahm, COURT STAFF) (Filed on 5/14/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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Northern District of California

United States District Court

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VIETNAM VETERANS OF AMERICA,

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et al.,

ORDER RE: APRIL 12 AND MAY 1,
2012 IN CAMERA SUBMISSIONS OF
DOCUMENTS

Plaintiffs,

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Case No.: 09-cv-0037 CW (JSC)

v.

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CENTRAL INTELLIGENCE AGENCY,

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et al.,

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Defendants.

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Defendants Department of Defense (“DOD”) and Department of Veterans Affairs

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(“DVA”) submitted documents for review in camera per the Court’s April 6 and May 1,

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2012 orders (Dkt. Nos. 408 & 420). The Court has completed part of its review of

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Defendants’ in camera submission and issues this interim Order. As set forth below, the

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Court seeks further information regarding certain documents, and orders Defendants to

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produce certain other documents.

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DISCUSSION
The Court has discussed the deliberative process privilege in numerous prior orders
and incorporates the discussion and analysis of the privilege in these prior orders by

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reference. (Dkt. Nos. 294, 327, 408). In November of 2011, the Court reviewed in camera

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approximately 483 documents over which DVA asserted the deliberative process privilege.

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After reviewing the documents, the Court found that with respect to approximately 50

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documents either the deliberative process privilege did not apply, or Plaintiffs had shown a

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sufficient substantial need for the documents to overcome the claim of privilege. (Dkt. No.

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327). In January and February 2012, Defendant DVA identified more than 700 additional

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documents which it claimed were protected by the deliberative process privilege. Defendant

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DOD concurrently identified approximately 324 documents as subject to the deliberative

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process privilege process. The Court ordered Defendants to produce nearly all of these

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documents for an in camera review. (Dkt. Nos. 408 & 420).

United States District Court
Northern District of California

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The Court has completed its review of many of these documents and finds that with

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respect to some of the documents the deliberative process privilege does not apply because

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the deliberative process privilege only covers deliberative materials; that is, documents that

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reflect advisory opinions, recommendations and deliberations comprising the government

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agency’s decision-making process. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150

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(1975). In contrast, “[p]urely factual material that does not reflect deliberative processes is

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not protected.” F.T.C. v. Warner Communications Inc., 742 F.2d 1156, 1161 (9th Cir. 1984)

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(internal citations omitted). Accordingly, to the extent that Defendant has asserted the

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deliberative process privilege over documents that only reflect factual information, the Court

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finds that the deliberative process privilege does not apply to these documents.

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The Court also finds that for some of the documents covered by the deliberative

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process Plaintiffs have demonstrated a sufficient substantial need for the documents to

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overcome the qualified deliberative process privilege. The documents in this category

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provide information which is extremely relevant to Plaintiffs’ facial bias claim against DVA

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and their claims against the other Defendants. Further, because the information in these

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documents cannot be obtained from another source Plaintiffs’ substantial need for the

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documents overrides the government’s interest in non-disclosure.

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Accordingly, Defendants shall produce the documents identified below to Plaintiffs

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without redactions except for any redactions based on another claim of privilege.
A.

DOD Documents
Pursuant to the Court’s April 6, 2012 order Defendant DOD produced 324 documents

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for in camera review on April 11, 2012. Defendant’s production was divided into the

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categories set forth in Paragraphs 6-14 of the Declaration of Michael Kilpatrick (Dkt. No.

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371-3). The Court refers to these documents by reference to the paragraph numbers from Dr.

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Kilpatrick’s declaration. As an initial matter, the Court notes that a significant number of the

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documents produced by the DOD are duplicates either of other documents within the
production or of final versions of the documents. The later, documents which are duplicates

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Northern District of California

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of final versions previously served on Plaintiffs, are clearly not deliberative. The Court has

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attempted to identify those documents which are duplicates of other documents in the

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production; however, this is an extremely laborious process.

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Paragraph 6 Documents

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Documents 148, 149, 150, 154, 184, 219, 220, 222, 228, 289 all appear to be

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duplicates of the final version previously produced to Plaintiffs at VET 103_000054-

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58. Unless Defendant can identify some difference between these documents and the

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final not readily apparent to the Court, the documents are not deliberative and

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Defendant shall produce them to Plaintiffs.

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Defendant shall produce unredacted versions of the email strings at 151, 153, and 187.

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The Court finds that Plaintiffs have a substantial need for these emails sufficient to

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overcome DOD’s qualified claim of privilege.

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Paragraph 7 Documents
This category of documents consists of discussions regarding the contents of the draft

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DOD Fact Sheet and Question and Answers, including emails, drafts, and redlined versions

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of the documents. The Court finds that Plaintiffs have a substantial need for documents in

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this category sufficient to overcome Defendant’s assertion of privilege for the following

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documents (several of which are duplicates):

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Documents 11, 12, 16, 25, 30, 44, 46, 48, 50, 59, 60, 61, 62, 64, 67, 68, 69, 71,

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87, 248, 249, 252, 253, 255, 262, 269, 271, 276, 277, 278, 286, 288

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Paragraph 8 Documents
Plaintiffs’ substantial need for Documents 39 and 127 overcomes Defendant’s claim

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of privilege.

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Paragraph 9 Documents
The majority of the documents in this category are duplicates of the “Edgewood

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Arsenal Communications Plan” which was apparently not adopted. Given that the

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unadopted communication plan relates directly to Plaintiffs’ notice claim against all the
Defendants, Plaintiffs have demonstrated a substantial need for the documents sufficient to

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Northern District of California

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overcome the qualified claim of privilege for the following documents:
28, 73, 247, 250, 254, 258, 260, 264, and 267

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Paragraph 10 Documents
Plaintiffs’ substantial need for Documents 80 and 162 (duplicate) overcomes

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Defendant’s claim of privilege.

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Paragraph 12 Documents
Plaintiffs’ substantial need for Documents 43 and 297 (duplicate) overcomes

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Defendant’s claim of privilege.

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Paragraph 13 Documents
Plaintiffs’ substantial need for Documents 40 and 299 (duplicate) overcomes

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Defendant’s claim of privilege.

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B.

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DVA Documents
1. DVA’s April 11, 2012 in camera submission
Defendant DVA’s April 11, 2012, in camera submission mostly dealt with the

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February 2008 General Accounting Office (“GAO”) Report entitled “Chemical and

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Biological Defense: DOD and VA Need to Improve Efforts to Identify and Notify

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Individuals Potentially Exposed during Chemical and Biological Tests.” As with Defendant

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DOD’s production, there are several duplicate documents in DVA’s production, which the

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Court has attempted to indicate.

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There are numerous copies of a document entitled “Preliminary Observations of

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GAO’s Review of Project 112 and Other DOD Test Programs that May have Exposed

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Individuals to Chemical and Biological Substances.” The first appears at: DVA078-

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2665-2680. The Court finds that Plaintiffs have a substantial need for this document

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sufficient to overcome the privilege.
o The following all appear to be duplicates: DVA078 002750-2765, 5803-

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5818, 4442-4457, 3132-3147, 3322-3337. Unless Defendant can

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demonstrate that these are not duplicates, Defendant shall produce all

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Northern District of California

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these documents.

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Following the 2008 GAO report, Defendant was required to provide periodic updates

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to the GAO regarding the status of issues identified in the report. Defendant’s

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document production includes various documents relating to these updates, many of

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which appear factual and non-deliberative except for the fact that they are marked

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DRAFT. The privilege log refers to the GAO 2008 report as the final version of these

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documents; however, this does not make sense – the final version of the document is

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not the report which predated the document and gave rise to the document’s creation.1

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Given the extreme relevance of the GAO report and any follow-up thereto, the Court

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finds that to the extent these documents contain deliberative information (which the

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Court questions), Plaintiffs have a sufficient substantial need for the following

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documents sufficient to overcome the claim of privilege. Defendant may redact the

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handwritten notes from these documents.
o DVA078 5774, 5775-5776, 5777-5778, 5779, 5780, 5781-5782, 5783, 5784-

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5785, 5786-5787, 2688-2690, 3158-3159, 3160-3162, 3163-3165, 3166-3168,

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3169-3171.

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If this reference on the privilege log was an error and there is an actual final version of these
documents, Defendant should inform the Court immediately.
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o Defendant shall also produce a related email: DVA078-5795-5798.

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For the document entitled “The Proposed Annual Report on CBRNE Programs,”

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DVA078 003309-3312, Defendant has indicated that no final version of the

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documents exists. The Court finds that to the extent this document is deliberative,

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upon the Court’s review, substantial need exists for the document’s disclosure.

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Similarly, Defendant shall produce the document entitled CBRNIAC Task 729

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Statement of Work” GAO Quarterly Follow-Up, DVA078 003151-3157.

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The chart entitled Summary of Legislative Proposals, DVA 078 3338-3345, is not

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deliberative and shall be produced.

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Northern District of California

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2. DVA’s May 4, 2012 in camera submission
Defendant DVA’s May 4, 2012 in camera submission uses the same subject matter

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categories as in its prior November 10, 2011 submission. Specifically, DVA has indicated

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that its deliberative process documents fall within the following subject areas:

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(2)

documents concerning VA Executive correspondence with members of
Congress, Veterans Service Organizations, and other federal government
agencies;

(3)

documents concerning collaboration between DOD and VA regarding
providing notice to test subjects;

(4)

documents concerning the content of VA’s notice letter within the Veterans
Health Administration;

(5)

documents concerning DOD’s “Fact Sheet” regarding VA health care and
examinations;

(6)

documents concerning legislative proposals, including draft legislative
proposals and analyses of those proposals;

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emails and memoranda discussing drafts of the Under Secretary for Health’s
Information Letter;

(8)

documents concerning the Veterans Benefits Administration, including draft
training letters, outreach reports and meeting summaries, emails regarding

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outreach efforts, drafts of the notification letter to test volunteers, and emails
regarding the development of those notification letters; and

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(9)

documents concerning the Veterans Health Administration (“VHA”), including
emails regarding a potential response to congressional inquiry about Edgewood
Arsenal and emails discussing the possibility of future registries within VHA.

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(Dkt. No. 276, 8:12-9:9).

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finds that Defendant should produce the documents listed below. Unless otherwise noted,

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the Court finds that the documents should be produced despite the claim of privilege based

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on Plaintiffs’ substantial need for the information within the documents, which overcomes

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the qualified claim of privilege.

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For ease of reference, the Court uses these same categories and

Category Two Documents

United States District Court
Northern District of California

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DVA078 002351-2354, DVA078 2436-2439 (duplicate)

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DVA078 2953-55

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Category Three Documents

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Defendant has selectively redacted portions of the document entitled “Chemical,

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Biological, Radiological, Nuclear, and Explosives (CBRNE) Database and

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Outreach Issues, DVA078 93-94. Defendant’s redactions are not deliberative, but

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strategic; Defendant cannot choose to redact the portion of the “Problems

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Identified” Section it does not want to disclose to Plaintiffs. Defendant shall

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produce the document without redactions. DVA078 106-117 is the same

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document plus an unredacted chart.

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DVA078 300-301

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DVA078 371-372 – Defendant shall produce an unredacted version.

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DVA078 2335-2339

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DVA078 2658-2659

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DVA078 3173-3174

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DVA078 4216

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DVA078 4696-4707

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DVA078 4739-4746

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DVA078 5895-5897

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DVA078 5898-5918 – Defendant indicates that it has been unable to find a final

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version of this PowerPoint; Defendant shall therefore produce this draft copy.

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Defendant may redact the handwriting.

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Category Four Documents

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Defendant has selectively redacted portions of the following documents.

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Defendant’s redactions appear strategic rather than deliberative.

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o DVA078 09-18 is a PowerPoint presentation entitled Edgewood Arsenal
Veteran Notification Effort, dated June 2, 2006. Defendant cites the notice

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letter (VVA-VA023647-23648) for the final version of this document. The

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United States District Court
Northern District of California

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letter is not a final version of the PowerPoint and the redacted slides are

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extremely relevant to Plaintiffs’ claims. Defendant shall produce an

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unredacted copy.

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o DVA078 249-253 Defendant has redacted 4 lines from the meeting

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minutes. Defendant shall produce the minutes in unredacted form.

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The first 13 pages of Joe Salvatore’s PowerPoint presentation “Chemical and

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Biological Program and Task Force,” DVA078 510-564, are identical to the final

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version produced at VVA-VA 23647-23648; however, at page 14 in the “draft”

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version a 42-page “Detailed Brief” begins. The detailed brief contains factual

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information and does not appear deliberative except that it is marked “draft.”

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Even if it were deliberative, the Court would find that Plaintiffs have a substantial

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need for the remaining pages of the PowerPoint presentation. Defendant shall

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produce the entire PowerPoint.

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For document DVA078 3349 Defendant has cited VET001_13909-13910 as the

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final version of the document. The Court was unable to locate VET001_13909-

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13910 in the accompanying binder of final documents. If no final version of this

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document exists, Defendant shall produce DVA078 3349 to Plaintiffs. If a final

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version does exist, Defendant shall produce it to the Court.

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Category Six
The following two documents appear identical, but are similarly illegible because the

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photocopy cuts off the left side of the document. Defendant shall reproduce the documents to

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the Court in a legible format.
DVA078 3366-3368, 4179-4181

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Category Nine

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Document DVA078 2240 is page 2 of a report about VA investigations of LSD.

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Defendant shall produce this page and shall produce the accompanying pages to
provide context to the extent that the pages are in Defendant’s possession.

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Northern District of California

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Only two of the emails in the email string at DVA078 5842-5848 contain

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deliberative material. Defendant shall produce the email string, but may redact the

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two emails from August 29, 2006.
CONCLUSION

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As set forth above, the Court finds that certain documents over which Defendants

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DOD and DVA have asserted deliberative process privilege are either not deliberative, and

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thus, not entitled to any protection, or that the qualified deliberative process privilege is

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overcome by Plaintiffs’ substantial need for the documents. Accordingly, Defendant shall

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produce the documents identified above by May 21, 2012. For those documents about which

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the Court seeks further information, Defendant DVA shall file a response by May 18, 2012.

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The Court will issue a further order dealing with the remainder of the in camera production

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forthwith.

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IT IS SO ORDERED.
Dated: May 14, 2012

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_________________________________
JACQUELINE SCOTT CORLEY
UNITED STATES MAGISTRATE JUDGE

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