[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
I have heard of many privileges, including, for example, the attorney-client privilege, spousal privilege, executive or deliberative process privilege,1 Fifth Amendment privilege, patient-therapist privilege, clergy person privilege, news media privilege, accountant-client privilege, and others.
However, I was unaware of the federal, common-law, qualified, “official information” privilege discussed in Hipschman v. County of San Diego, 2024 WL 3206909 (S.D. Cal. June 26, 2024).
In Hipschman, plaintiffs sued the County and others, alleging violation of “their civil rights by improperly seizing their minor child from their possession without a warrant or probable cause.” Plaintiffs moved to compel production of documents after an in-person meet and confer to attempt resolution, and after counsel “participated in an informal discovery conference with the undersigned’s Judicial Law Clerk regarding the dispute.” Id. at *1 (emphasis added).
Plaintiffs’ Request for Production No. 63 asked for production of three defendants’ “entire” personnel file. Defendants objected asserting (in part) that the request sought “information protected from disclosure by official information privilege….” Id. at *2, 5 (emphasis added).
The Hipschman court stated that the privilege is a recognized, qualified, federal common-law privilege.
In order to assert it: “The objection must be accompanied by a declaration or affidavit ‘from a responsible official within the agency who has personal knowledge of the principal matters to be attested to in the affidavit or declaration.’” Id. at *5. The declaration must include:
(1) an affirmation that the agency generated or collected the material in issue and has in fact maintained its confidentiality (if the agency has shared some or all of the material with other governmental agencies it must disclose their identity and describe the circumstances surrounding the disclosure, including steps taken to assure preservation of the confidentiality of the material), (2) a statement that the official has personally reviewed the material in question, (3) a specific identification of the governmental or privacy interests that would be threatened by disclosure of the material to plaintiff and/or his lawyer, (4) a description of how disclosure subject to a carefully crafted protective order would create a substantial risk of harm to significant governmental or privacy interests, (5) and a projection of how much harm would be done to the threatened interests if the disclosure were made.
Hipschman v. County of San Diego, 2024 WL 3206909, at *6 (S.D. Cal. June 26, 2024).
The party opposing disclosure based on the official information privilege must make a “substantial threshold showing.” Gosztyla v. Gruenwald, 2024 WL 2748199, at *2 (E.D. Cal. May 29, 2024).
If the government meets this burden, “the court generally conducts an in camera review of the material and balance each party’s interests.” Hipschman, 2024 WL 3206909 at *6.
The Hipschman court then wrote that the balancing test “requires that ‘courts must weigh the potential benefits of disclosure against the potential disadvantages.’” Id. (citation omitted). It listed 10 factors that may be considered in the weighing process and stated that the process should be “moderately pre-weighted in favor of disclosure.” Id. (citation omitted).2
Applying those rules, the Hipschman court wrote that the County had not provided the required declaration needed to invoke the privilege and had failed to address “the privilege in any way.” Id. at *6. Therefore, it overruled the objection.
The objection must be accompanied by a declaration or affidavit ‘from a responsible official within the agency who has personal knowledge of the principal matters to be attested to in the affidavit or declaration.
Hipschman v. County of San Diego, 2024 WL 3206909 (S.D. Cal. June 26, 2024).
For more, see Mark S. Wallace, “Discovery of Government Documents and the Official Information Privilege,” 76 Colum. L. Rev. 142 (1976); K. Graham, Federal Prac. & Proc. Evid. §5676 (1st ed).
The doctrine has also been called the “law enforcement/official information privilege….” Sernofsiky v. San Diego Police Captain Matt Novak, 2024 WL 3100275, at *2 (S.D. Cal. June 21, 2024). That privilege protects against “disclosure of information that would be contrary to the public interest in the effective functioning of law enforcement.” Thus: “[T]he federal privilege applicable to the government interest in preserving confidentiality of law enforcement records has various names, including the ‘official information privilege’ and the ‘law enforcement privilege.’” Athletics Inv. Grp., LLC v. Schnitzer Steel Indus., Inc., 2024 WL 2191007, at *7 (N.D. Cal. May 14, 2024)(cleaned up).
In Maryland, the “executive privilege is also sometimes referred to as the privilege for ‘governmental secrets,’ or as the ‘state secret privilege’ and ‘official information privilege.’” Johnson v. Clark, 199 Md. App. 305, 325, 21 A.3d 199, 211 (2011)(cleaned up); Off. of Governor v. Washington Post Co., 360 Md. 520, 557 n. 16, 759 A.2d 249, 269n. 16 (2000). “[T]he doctrine of ‘executive privilege’ encompasses both the privilege for state and military secrets as well as the privilege for certain ‘official information.’” Hamilton v. Verdow, 287 Md. 544, 554, 414 A.2d 914, 920 (1980). Privileges are codified in Subtitle 1 of Title 9 of the Courts & Judicial Proceedings Article of the Maryland Code and “official information” is not listed.
Some states have codified the “official information” privilege. See, e.g., Kansas Statutes Ann., §60-434 (“A witness has the privilege to refuse to disclose a matter on the ground that it is official information, and evidence of the matter is inadmissible, if the judge finds that the matter is official information, and (1) disclosure is forbidden by an act of the congress of the United States or a statute of this state, or (2) disclosure of the information in the action will be harmful to the security of the government of which the witness is an officer in a governmental capacity.”); New Jersey St. Ann., §2A:84A-27; Cal. Evid. Code §1040; Puerto Rico, Title 33a, Rule 31.
Notes
1 See, e.g., Estate of LeRoux v. Montg. Co., MD, 2024 WL 1703939 (D. Md. Apr. 19, 2024), for an extensive discussion.
2 The factors listed in Hipschman were: “(1) the extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information; (2) the impact upon persons who have given information of having their identities disclosed; (3) the degree to which government self-evaluation and consequent program improvement will be chilled by disclosure; (4) whether the information sought is factual data or evaluative summary; (5) whether the party seeking the discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question; (6) whether the police investigation has been completed; (7) whether any intradepartmental disciplinary proceedings have arisen or may arise from the investigation; (8) whether the plaintiff’s suit is non-frivolous and brought in good faith; (9) whether the information sought is available through other discovery or from other sources; and (10) the importance of the information sought to the plaintiff’s case.”
