Kerr v. United States Dist. Court for N. Dist.

511 F.2d 192 (9th Cir. 1975)



The common law governmental privilege is a qualified privilege, contingent upon the competing interests of the requesting litigant and subject to disclosure especially where protective measures are taken. The governmental privilege must be formally asserted and delineated in order to be raised properly. The privilege belongs to the government and must be asserted by it; it can neither be claimed nor waived by a private party. It is not to be lightly invoked. There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. The 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.


Seven California state prisoners, who are real parties in interest joined in a civil rights action against the petitioners who are members of the California Adult Authority. they sought certain procedural rights with regard to all proceedings for the revocation, suspension or rescinding of parole, the fixing or refusing to fix the terms of sentences, and the imposing of serious disciplinary sanctions. During the course of discovery, petitioners were served with interrogatories and a request for production of documents. Respondent United States District Court granted real parties in interest prisoners' motion for discovery of documents, including personnel files, from petitioners. Petitioners sought a writ of mandamus under 28 U.S.C.S. § 1651 to have the order vacated on the ground of governmental privilege.


Were requested documents properly refused on the ground of governmental privilege?




The court denied the petition, finding that respondent's holding that the personnel files were relevant for discovery purposes was not so questionable as to invoke mandamus. The court determined that petitioners' interest was that of a litigant, and not, as in diversity cases, that of a sovereign whose law was being applied in a foreign forum. The court found that reference to federal law was necessary on the issue of the existence and scope of petitioners' claimed governmental privilege. Accordingly, the Freedom of Information Act did not create a privilege for the requested documents, as its exceptions to disclosure were not intended to create evidentiary privileges for civil discovery. The court concluded that petitioners failed to formally assert and delineate the privilege.

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