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OFFICIAL INFORMATION PRIVILEGE

See also Police personnel records protection of Evid. C. 1043
"OFFICIAL INFORMATION" DEFINED
OFFICIAL INFORMATION PRIVILEGE DESCRIBED

QUALIFY AS "OFFICIAL INFORMATION"
PRIVILEGE MUST BE ASSERTED

ABSOLUTE PRIVILEGE

QUALIFIED PRIVILEGE

PROCEDURE FOR DETERMINING PRIVILEGE
COURT ORDER

OUTLINE

OFFICIAL INFORMATION DEFINED: "OFFICIAL INFORMATION" [ Evid.C §1040 (a)]

Declaration should be provided re elements

City of Los Angeles (1973), 33 Cal.App.3d 778 at pages 781,784

"Information"

"acquired in confidence"

Parnes v. Superior Court (1978), 81 Cal.App.3d 831
Shepherd v. Superior Court (1976), 17 Cal.3d 107, 125 [voluntary statement by criminal suspect to investigating authority isn't information acquired in confidence]
City of Los Angeles (1973), 33 Cal.App.3d 778 at pages 781

"by a public employee in the course of …duty

"AND not open or officially disclosed to the public…."

Federal Common Law privilege

Rodriguez v. City of Fresno (E.D.Cal.2006. Slip Copy), 2006 WL 903675  "Federal common law recognizes a qualified privilege for official information, also known as the governmental privilege, or state secret privilege. Kerr v. United States District Court for the Northern District of California, 511 F.2d 192, 198 (9th Cir.1975). The application of the official information privilege is “contingent upon the competing interests of the requesting litigant and subject to disclosure especially where protective measures are taken.” Id."

OFFICIAL INFORMATION PRIVILEGE DESCRIBED [Evid.C.§1040(b)]

QUALIFY AS "OFFICIAL INFORMATION"

PRIVILEGE MUST BE ASSERTED: "if the privilege is claimed"

Holder is public entity; person authorized by public entity to do so must claim;

Berkeley Police Office Assoc. v. City of Berkeley ( 76 Cal.App.3d 931 [police officers don't have standing to assert against agency]

Cannot assert if public entity has consented

People v. McNamara Const. (1972), 28 Cal.App.3d 641 [consent by disclosure to state review board]
Cf. Procunier (1973), 35 Cal.App.3d 211 [court can object when state fails to do so]

ABSOLUTE PRIVILEGE: Disclosure forbidden by state or federal statute, or

Vehicle Code

Edgar v. Superior Court (19 ), 84 Cal.App.3d 430 [accident reports privileged though can get fact of occurrence and number]
People v. Superior Court (1976), 60 Cal.App.3d 352
State v. Superior Court (1980), 102 Cal.App.3d 25

Tax Records: See Tax Privilege Outline

Webb [R&T 19282, not misdemeanor]
Crest Catering [Unemployment Ins.Code 1094, 2111]
Sav-On-Drugs [R&T 7056, not misdemeanor, unlawful]

Welfare & Institutions

Sinacore 81 Cal.App.3d 223 [W&I10850 protects records and lists of recipients]
Jonon 93 Cl.App.3d 683 [Observations of social worker not privileged]

Arrest Records

Central Valley Chapter of 7th Step Foundation v. Younger (1979), 95 Cal.App.3d 212, 236 [dept of justice can't disseminate to public employees]
Craig v. Muni.Court (1979), 100 Cal.App.3d 69
Loder v. Muni.Court (19 ), 17 Cal.3d 859

Public Records Act Gov't Code 6254 doesn't create privilege

Parnes v. Superior Court (1978), 81 Cal.App.3d 831
Procunier v. (1973), 35 Cal.App.3d 211
Cf. State v. Superior Court (1974), 43 Cal.App.3d 778
Cf. Shepherd v. Superior Court (1976), 17 Cal.3d 107 [disapproving Procunier]

QUALIFIED PRIVILEGE: Disclosure against public interest

Need for confidentiality > need for disclosure
Cannot consider interest of public entity as party in balancing
People v. Gaulden (1974), 36 Cal.App3d 942 [prison records]
People v. Superior Court (1977), 70 Cal.App.3d 341 [official investigative material protected]
People v. McNamara Const. (1972), 28 Cal.App.3d 641 [narrow interpretation of privilege]
Eskaton Monterey Hospital v. Myers 134 Cal.App.3d 788 [state audit manuals]
Procunier [prison blueprints]

FACTORS IN WEIGHING PROCESS

Necessity of preserving confidentiality

Parnes v. Superior Court (1978), 81 Cal.App.3d 831 [effect upon integrity of public process]
State v. Superior Court (1974), 43 Cal.App.3d 778 [ state interest in obtaining cooperation outweighed by effectiveness of party's lawsuit in achieving public benefit]

Factors re interests of justice: e.g. materiality & good cause; necessity for presentation of case; alternative sources of information; difficulties of alternatives

Dominquez v. Superior Court (1980), 101 Cal.App3d 6
Parnes v. Superior Court (1978), 81 Cal.App.3d 831



PROCEDURE FOR DETERMINING PRIVILEGE [Shepherd v. Superior Court (1976), 17 Cal.3d 107]

Determine if material is discoverable under normal standards; if so
Determine if it is "official information"; if so
Determine if it is absolute; if so, no discovery, if not
Weigh factors as to each item that is in issue

In camera hearing may be required

People v. Superior Court (Biggs), 19 Cal.App3d522, 526
Hinojosa v. Superior Court (1976), 55 Cal.App.3d 692, 697
EC 915

COURT ORDER

Findings required

Parnes v. Superior Court (1978), 81 Cal.App.3d 831, 835-6 [court must make findings that disclosure is against the public interest]
Shepherd v. Superior Court (1976), 17 Cal.3d 107
Dominquez v. Superior Court (1980), 101 Cal.App3d 6 [specific finding required as to each item]
People v. Superior Court (1977), 70 Cal.App3d 341