ORDER

KENDALL J. NEWMAN, Magistrate Judge.

Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's motion to compel. (ECF No. 32.)

Plaintiff's Claims

Plaintiff has filed a motion for leave to file a second amended complaint and proposed second amended complaint. (ECF No. 56.) By separate order, the undersigned has granted plaintiff's motion for leave to file the second amended complaint. Accordingly, the allegations against defendants Ruiz, Guffey and Link-Lopez in the second amended complaint are summarized herein.

Plaintiff alleges that on March 4, 2013, defendants assaulted him in apparent retaliation for plaintiff's earlier statements which were disrespectful of defendant Guffey's wife and family. (Id. at 11-12.) Plaintiff alleges that defendants came to his cell armed with pepper spray. (Id. at 11.) Plaintiff alleges that after his cell door was opened, defendant Ruiz grabbed his right arm and rammed plaintiff's head into the edge of the door. (Id.) In self-defense, plaintiff punched defendant Ruiz which caused defendant Ruiz's nose to bleed. (Id.) At this point, plaintiff's cell door was closed. (Id.) Moments later, defendant Guffey returned to the tier and tried to clean up defendant Ruiz's blood, but missed a spot. (Id.) On March 5, 2013, Sergeant Ortiz took photos of defendant Ruiz's blood on tier. (Id.) Plaintiff alleges that when defendants attacked him, defendant Ruiz mentioned that the attack was because of the disrespectful statements plaintiff made regarding defendant Guffey's family. (Id. at 12.)

Plaintiff alleges that defendants' deliberate indifference to his safety caused him to suffer physical injury and emotional distress. (Id. at 17.)

Motion to Compel

Plaintiff moves to compel defendants to produce documents requested in a request for production of documents. (ECF No. 32 at 2.) In particular, plaintiff requests that defendants be ordered to produce "all final investigation reports and findings conducted by the Office of Internal Affairs" concerning his claims. (Id. at 2.) Plaintiff alleges that on February 27, 2014, and March 11, 2014, California State Prison ("CSP") Warden Macomber mailed the Internal Affairs findings to defendants' attorney. (Id. at 2.) Attached to plaintiff's motion to compel is a privilege log prepared by defendants' counsel stating that defense counsel has a copy of the Notice of Internal Affairs Investigation Findings. (Id. at 12.)

In their opposition, defendants state that they do not have possession, custody or control of the Internal Affairs reports or investigatory documents plaintiff requests. (ECF No. 39 at 2.) Defendants state that these documents are in the possession of the California Department of Corrections and Rehabilitation, a third party. (Id.)

With respect to the Internal Affairs findings, referred to in the privilege log, defendants invoke the information privilege. (Id.) Defendants argue, in general terms, that the information sought involves defendants' personnel records. (Id. at 3.) They also assert the privacy rights of third parties and argue that disclosure could compromise the safety and security of the institution. (Id.) Defendants argue that these documents are privileged and should not be disclosed absent an in camera review by the court. (Id.)

Standards Governing Privilege

Privileges are to be "strictly construed" because they "impede full and free discovery of the truth." Eureka Financial Corp. v. Hartford Acc. and Indemnity Co., 136 F.R.D. 179, 183 (E.D. Cal. 1991). The Supreme Court has long noted that privileges are disfavored. Jaffee v. Redmond, 518 U.S. 1, 9 (1996). "The party asserting an evidentiary privilege has the burden to demonstrate that the privilege applies to the information in question." Tornay v. United States, 840 F.2d 1424, 1426 (9th Cir. 1988).

In civil rights cases brought under federal statutes, questions of privilege are resolved by federal law. Kerr v. U.S. District Court for the Northern District of California, 511 F.2d 192, 197 (9th Cir. 1975), aff'd on procedural grounds, 426 U.S. 394 (1976). Where the complaint alleges both substantive federal and state law claims concerning the same alleged conduct, the federal law of privilege controls. Agster v. Maricopa County, 422 F.3d 836, 839-40 (9th Cir. 2005) (internal citations omitted). "Federal common law recognizes a qualified privilege for official information." Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033 (9th Cir. 1990) ("[g]overnment personnel files are considered official information."). "To determine whether the information sought is privileged, courts must weigh the potential benefits of the disclosure against the potential disadvantages. If the latter is greater, the privilege bars discovery." Sanchez, 936 F.2d at 1033-34; see also Martinez v. City of Stockton, 132 F.R.D. 677 (E.D. Cal. 1990).1 "The balancing approach of the Ninth Circuit is mirrored in this and other courts' previous determinations that a balancing test is appropriate when the disclosure of law enforcement files in a civil action is at issue." Doubleday v. Ruh, 149 F.R.D. 601, 609 (E.D. Cal. 1993).

Documents that are a part of the personnel records of officers defending civil rights actions, while containing sensitive information, are within the scope of discovery. Soto v. City of Concord, 162 F.R.D. 603, 614-15 (N.D. Cal. 1995); Hampton v. City of San Diego, 147 F.R.D. 227, 230-31 (S.D. Cal. 1993); Miller v. Pancucci, 141 F.R.D. 292, 296 (C.D. Cal. 1992). "State privilege doctrine, whether derived from statutes or court decisions, is not binding on federal courts in these kinds of cases." Kelly v. City of San Jose, 114 F.R.D. 653, 655 (N.D. Cal. 1987).

As to invoking the official information privilege, in order to do so, "[t]he claiming official must `have seen and considered the contents of the documents and himself have formed the view that on grounds of public interest they ought not to be produced' and state with specificity the rationale of the claimed privilege." Kerr, 511 F.2d at 198. The party invoking the privilege must at the outset make a "substantial threshold showing" by way of a declaration of affidavit from a responsible official with personal knowledge of the matters to be attested to in the affidavit. Soto v. City of Concord, 162 F.R.D. 603, 613 (N.D. Cal. 1995).

Id.

In addition, "[t]he asserting party, as in any case where a privilege is claimed, must sufficiently identify the documents so as to afford the requesting party an opportunity to challenge the assertion of privilege." Miller, 141 F.R.D. at 300.

Discussion

In the instant case, defendants did not properly invoke the official information privilege. The official information privilege must be formally claimed by "the head of the department which has control over the matter, after actual personal consideration by that officer." United States v. Reynolds, 345 U.S. 1, 7-8, (1953).2 Defendants did not file a declaration by a person with control over the Internal Affairs findings in support of their invocation of the official information privilege. The privilege log alone, attached to plaintiff's motion, is insufficient to invoke the privilege. See Bernat v. City of California City, 2010 WL 4008361 at *2 (E.D. Cal. 2010). Accordingly, defendants are granted ten days to file a proper declaration. Following receipt of this declaration, the undersigned will issue further orders.

With respect to defendants' claim that they do not have possession, custody or control of the Internal Affairs reports and investigatory documents, responding parties are required to produce documents which are in their "possession, custody or control." Fed. R. Civ. P. 34(a)(1). "A party need not have actual possession of documents to be deemed in control of them, [and] a party that has a legal right to obtain certain documents is deemed to have control over the documents." Clark v. Vega Wholesale, Inc., 181 F.R.D. 470, 472 (D. Nev. 1998).

The undersigned accepts that correctional officers, such as defendants, do not have access to the Internal Affairs reports and investigatory documents. Accordingly, plaintiff's motion to compel these documents is denied. However, as will be discussed in a separate order, plaintiff will be granted an opportunity to subpoena these documents from the non-party who allegedly possesses them.

Accordingly, IT IS HEREBY ORDERED that plaintiff's motion to compel (ECF No. 32) is denied as to plaintiff's request for Internal Affairs reports and investigatory documents; within ten days of the date of this order, defendants shall file a declaration in support of their invocation of the official information privilege with respect to plaintiff's request for the Internal Affairs findings.