ORDER TO SHOW CAUSE WHY SANCTIONS SHOULD NOT ISSUE FOR IMPROPERLY WITHHOLDING DOCUMENTS AS PRIVILEGED WITHOUT A GOOD FAITH BASIS

ERICA P. GROSJEAN, Magistrate Judge.

I. BACKGROUND

Gina Caruso ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. On February 23, 2018, Plaintiff filed a Request for Appointment of Counsel for Indigent Inmate Unable to Get Discovery Privilege. (ECF No. 57). Plaintiff's motion explained that "Plaintiff has requested documents to help prove her case and the defendants are claiming privilege at every staff related request. Using generalizations, non-specific hiding [sic] behind privilege, the Defendants are not acting in good faith." (ECF No. 57, at p. 1).

Plaintiff attached Defendants' Responses to Plaintiff's Request for Production of Documents, Set One. Defendants objected to many requests on the basis that "The documents requested are part of a confidential investigation and as such are subject to the official information privilege," and refused to produce such documents. (ECF No. 57, at pgs. 7-9). Plaintiff attached Defendants' Declaration of D. Villegas in support of Defendants' Privilege Log. That declaration stated that "CDCR's ISU officers and employees generated or collected, and preserved, in the normal course of business, all of the documents in the Privilege Log as confidential official information, and have maintained their confidentiality." (ECF No. 57, at p. 16). It also represented that "Disclosure of this type of information could undermine staff's ability to function and control violent episodes or prevent the distribution of contraband," and "[t]here is simply no manner in which this information could be disseminated, particularly in a pro se case, that would preserve the institution's interests as inmates do not have the same incentives to obey orders as do officers of the court." (ECF No. 57, at pgs. 16-17). Another declaration in support of Defendants' privilege log, this one from J. Rowan, similarly represented that every single document withheld as privileged had been reviewed, was confidential, and could not be disseminated to Ms. Caruso without serious risk to the institution. (ECF No. 57, at pgs. 22-26). Ms. Caruso attached the privilege logs, which confirmed that Defendants claimed the privileged material was "confidential information that would jeopardize the safety and security of the institution if disclosed," and was privileged under the "official information privilege." (ECF No. 57, at pgs. 19-20; 27-28).

Defendants filed an opposition of Plaintiff's Motion to Compel. Among other things, Defendants argued that "to the extent the request seeks documents contained within the personnel files of the officers, these documents are protected by the official information privilege." (ECF No. 63, at p. 3). Similarly, Defendants argued that "The documents requested are a part of a confidential investigation and as such are subject to the official information privilege." (ECF No. 63, at p. 4). Defendants also represented that "the elements of the confidential investigation contain sensitive information that would jeopardize the security of the institution if released." (ECF No. 63, at p. 4).

After receiving Plaintiff's motion, the court ordered production to the Court for in camera review of all documents withheld as privileged under the official information privilege. (ECF No. 61). Defendants have provided the Court with those documents.

II. OFFICIAL INFORMATION PRIVILEGE

In Kerr v. United States Dist. Ct. for the N. Dist. of Cal., 511 F.2d 192 (9th Cir. 1975), aff'd 426 U.S. 394 (1976), the 9th Circuit examined the government's claim of the official information privilege as a basis to withhold documents sought under the Freedom of Information Act. The court ultimately let stand a district court order requiring production of personnel files from members and executive personnel of the California Adult Authority, over the government's privilege objection. The Court rested its decision primarily on the government's use of a blanket objection rather than a specific privilege claim as to a particular document or class of documents. In doing so, it made the following comments about the contours of the privilege:

Kerr, 511 F.2d at 198 (internal citations and quotation marks omitted). Thus, the Kerr court made clear that: (1) there is no absolute privilege for government records; (2) federal common law governs; (3) the official information privilege is a qualified privilege; and (4) the privilege depends on the competing interests of the litigant and the governmental entity. See also Committee for Nuclear Responsibility, Inc. v. Seaborg, 463 F.2d 788, 792-795 (D.C. Cir. 1971), cited in Kerr ("The government's interest in confidentiality is plain where the documents make reference to military or diplomatic secrets. . . . The government may still have an interest, however, in avoiding disclosure of documents which reflect intra-executive advisory opinions and recommendations whose confidentiality contributes substantially to the effectiveness of government decision-making processes."); Carr v. Monroe Mfg. Co. 431 F.2d 384, 388-89 (5th Cir. 1970) ("Making even more compelling the need for judicial evaluation of the availability of the privilege is the fact that this is a suit against the highest official of the very government agency asserting the privilege. In such cases there is a special danger in the government official having the power to define the scope of his own privilege, free of supervision by the courts.").

The 9th Circuit provided more direction regarding the official information privilege in Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033-34 (9th Cir. 1990), in which it affirmed a district judge's denial of discovery of city police department personnel files, explaining "Federal common law recognizes a qualified privilege for official information. Kerr v. United States Dist. Ct. for N.D. Cal., 511 F.2d 192, 198 (9th Cir.1975), aff'd, 426 U.S. 394, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976). 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."

III. DEFENDANTS' WITHHELD DOCUMENTS

The Court has conducted an in camera review of the documents Defendants withheld with the representation that every single document had been reviewed and that disclosure of any of those documents would "jeopardize the safety and security of the institution if disclosed." Among the withheld documents are:

IV. ORDER TO SHOW CAUSE

The Court sees no legitimate basis to withhold the documents listed above. Many of these documents were prepared by or sent to Plaintiff herself. Others are medical reports and laboratory tests, which do not concern any official information investigation or results. There is quite simply no legal basis to withhold these documents or assert under oath that their disclosure to Plaintiff would "jeopardize the safety and security of the institution if disclosed."

The Court is all the more troubled by Defendants' withholding because this is a pro se case. Ms. Caruso does not have counsel and does not have the legal training to understand the legal contours of the official information privilege. Defendants improperly represented that all of the withheld documents were supported by a legally valid privilege assertion, not to mention that the privilege was absolute. See Kerr, 511 F.2d at 198 ("[T]his is only a qualified privilege, contingent upon the competing interests of the requesting litigant and subject to disclosure especially where protective measures are taken.").

Accordingly, Defendants are ordered to show cause why sanctions should not issue for improperly claiming privilege without a good faith legal basis. Defendants should be prepared to address this issue at the discovery and status conference on April 4, 2018, at 3:00 p.m.1

IT IS SO ORDERED.