The opinion of the court was delivered by: L. Felipe Restrepo United States Magistrate Judge
Before the Court is the declaration of Jeffrey A. Beard, Ph.D., Secretary of the Pennsylvania Department of Corrections ("DOC") asserting that the deliberative process privilege applies to certain psychological, psychiatric, counseling or mental health records (hereinafter "mental health records") of the Plaintiff, K. Kabasha Griffin-El (Doc. No. 79). Also before the Court is Defendants' letter brief explaining the legal basis for their assertion that Plaintiff's mental health records are protected by the deliberative process privilege (Doc. No. 86) and Plaintiff's letter brief in opposition thereto (Doc. No. 85). The mental health records at issue have been provided to the Court for in camera review. For the reasons which follow, the Court will require production of the mental health records which are responsive to Plaintiff's first request for documents. Production of the documents must conform to the Court's corresponding protective order.
Plaintiff brings this lawsuit pursuant to 42 U.S.C. § 1983 alleging that various employees of the DOC violated his First Amendment right to access the courts, his Fourteenth Amendment right to due process of law, his Fourth Amendment right to be free from unreasonable searches, and that Defendants retaliated against him for asserting his First Amendment rights. See Second Amended Comp. ¶¶ 81-105. Plaintiff also seeks a declaratory judgment. Id. ¶¶ 1, 81-83. These constitutional violations allegedly occurred as a result of two searches of Plaintiff's prison cell while he was incarcerated at the State Correctional Facility at Graterford ("SCI-Graterford"). See Id. ¶¶ 1, 2-105. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 because this is a "civil action arising under the Constitution, laws, or treaties of the United States." See 28 U.S.C. § 1331.
On February 10, 2009, the Court held a conference call with counsel for both parties in order to resolve a number of discovery disputes. The Court then issued an order (Doc. No. 68) requiring Defendants to produce the documents requested in Plaintiff's first request for documents. See Order dated 2/10/09 ¶ 8 (Doc. No. 68). Defendants filed a Motion for Reconsideration, arguing that they should not be required to produce Plaintiff's mental health records because they are privileged and present concerns regarding confidentiality and security in the prisons. See Def.'s Mot. for Recons. ¶¶ 3-8. Defendants also asserted objections that the documents were irrelevant and that the request was unduly burdensome. Id. The Court issued an Order denying Defendants' Motion for Reconsideration and again ordering production of the documents. See Order dated 3/16/09 ¶ 1 (Doc. No. 76).
Defendants' Motion for Reconsideration was denied because they failed to raise appropriate grounds for reconsideration, did not follow the firmly established procedures required of executive agencies when asserting claims of privilege, and because the Court had previously rejected their boilerplate claims of irrelevance and undue burden and was presented with no evidence or reason to disturb that ruling.*fn1 See Griffin-El v. Beard, 2009 U.S. Dist. LEXIS 20651, at *1-34 (E.D. Pa. Mar. 16, 2009). The Court examined the procedures which executive agencies must follow when withholding documents on the basis of privilege in some detail. Indeed, it was noted that Defendants should have submitted an affidavit prepared by the head of the DOC indicating that he or she had personally reviewed the contested documents and asserting the specific basis for the privilege as it allegedly applied to each document. Id. at *13-25 (citations omitted). Defendants were additionally ordered to produce a privilege log, submit the contested documents for in camera inspection, and to "set forth the precise factual and legal arguments which they believe support the application of privilege to each document." Id. *21-22 n. 2, 25 (citations omitted); see also Order dated 3/16/09 ¶¶ 1-2.
Defendants responded by submitting the declaration of Secretary Beard indicating that he had reviewed Plaintiff's mental health records. See Beard Decl. ¶¶ 12-13. Secretary Beard indicated that Plaintiff's mental health records "contain entries and narratives covering mental status, reasoning capacity, emotional state, social adaptability, judgment ability, and the results of clinical tests," and explained that "[i]f the files were readily available to inmates or the public, these professionals would tend to refrain from entering candid opinions and evaluations . . . [and]
[c]onsequently, decision-makers would not have the benefit of honest observations from professionals in the field." Id. ¶ 16. He further noted that disclosure of these records would make inmates "capable of manipulating the resulting diagnosis," which would be a detriment to his treatment, could lead to "improper institutional placement" which could result in him being placed somewhere "where he is a danger to others," and that it could even lead to an erroneous early parole release which would endanger "the community at large." Id. ¶ 17.
With respect to the counseling records specifically, Secretary Beard asserts that they "contain entries and narratives covering such things as Plaintiff's behavior, attitude, adjustment, and emotional state" and that "[i]f the files were readily available to inmates or the public, Department staff would tend to refrain from entering candid opinions, evaluations, and observations." Id. ¶ 20. He explains that "if specific information within the counselor's files were routinely made available to inmates, it would be detrimental to the treatment and the safety of the inmates, the safety of the staff, and the security and order of the institution and would significantly increase the difficulty of prison administration and hinder inmate treatment" and would "unnecessarily chill the free and uninhibited exchange of ideas between staff, discouraging confidential sources of information, and unjustifiably compromise the confidentiality of system records as well as the counselor-inmate relationship itself." Id. ¶¶ 21-22. Secretary Beard also notes that disclosure of these records could also place the "public at risk." Id. ¶ 23. As a result, Secretary Beard "invok[es] the Executive Documents/Deliberative Process Privilege permitting the government to withhold the documents described in [his] Declaration." Id. ¶ 34.
Defendants did not supplement Secretary Beard's declaration with any brief or memorandum of law setting forth legal arguments supporting his assertion of the privilege with respect to each relevant document. The declaration sets forth a number of types or categories of documents which they deem privileged. Id. ¶¶ 12-13. Because the Court had previously ordered Defendants to set forth the legal basis for their privilege claims, Defendants were ordered to submit a letter brief to the Court containing legal support for their position in enough detail to enable Plaintiff to respond while still maintaining the privilege. See Order dated 4/7/09 ¶ 5 (Doc. No. 81). Plaintiff was ordered to submit a letter brief in response. Id. ¶ 6.
Defendants essentially assert two claims in their efforts to withhold production of Plaintiff's mental health records. First, they allege that the documents are protected by the deliberative process privilege; and second, they allege that the Court should recognize state law as creating a privilege under the federal common law. See Def.'s Letter Mem. 1-2. In the event the Court denies their privilege claims, Defendants urge the Court to craft a protective order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure. Id. at 3. Defendants have not convinced the Court that the deliberative process privilege justifies withholding the documents, and the Court does not find that any state law of privilege should be recognized by the federal common law under these circumstances. As such, Plaintiff's mental health records must be produced. However, because the Court finds that these documents are highly sensitive, a protective order is necessary to delineate specific guidelines for the manner under which they are disclosed.
A. DEFENDANTS HAVE NOT MET THEIR BURDEN OF PROVING THE DELIBERATIVE PROCESS PRIVILEGE WARRANTS NONDISCLOSURE OF THE DOCUMENTS
As a general matter, the Federal Rules of Civil Procedure provide that "[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense." Fed. R. Civ. P. 26(b)(1). Since Plaintiff has brought federal claims, Rule 501 of the Federal Rules of Evidence dictates that "the privileges in this case are governed by 'principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.'" Startzell v. City of Philadelphia, 2006 U.S. Dist. LEXIS 74579, at *6 (E.D. Pa. Oct. 13, 2006) (quoting United States v. O'Neill, 619 F.2d 222, 230 (3d Cir. 1980)); see O'Neill, 619 F.2d at 230 (quoting Fed. R. Evid. 501). The Third Circuit has explained that "the deliberative process privilege, like other executive privileges, should be narrowly construed." Redland Soccer Club, Inc. v. Dep't of the Army of the United States, 55 F.3d 827, 856 (3d Cir. 1995) (quoting Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 868 (D.C. Cir. 1980)) (additional citations omitted). Other courts have noted that "in a civil rights action involving asserted official misconduct a claim that relevant evidence is privileged 'must be so meritorious as to overcome the fundamental importance of a law meant to insure each citizen from unconstitutional state action.'" Crawford v. Dominic, 469 F. Supp. 260, 262 (E.D. Pa. 1979) (quoting Wood v. Breier, 54 F.R.D. 7, 13 (E.D. Wis. 1972)).
When successfully asserted, "[t]he deliberative process privilege permits the government to withhold documents containing 'confidential deliberations of law or policymaking, reflecting opinions, recommendations, or advice.'" Redland Soccer Club, 55 F.3d at 853 (quoting In re Grand Jury, 821 F.2d 946, 959 (3d Cir. 1987)) (additional citations omitted). The purpose of the deliberative process privilege "is to prevent injury to the quality of agency decisions." Redland Soccer Club, 55 F.3d at 854 (quoting NLRB. v. Sears Roebuck & Co., 421 U.S. 132, 151 (1975)). Factual information does not receive protection, "even if such information is contained in an otherwise protectable document, as long as the information is severable." Redland Soccer Club, 55 F.3d at 854 (citing In re Grand Jury, 821 F.2d at 959). Further, any "[c]ommunications made subsequent to an agency decision" are not protected. Redland Soccer Club, 55 F.3ds at 854 (quoting United States v. Farley, 11 F.3d 1385, 1389 (7th Cir. 1993)).
The government agency has the burden of proving the applicability of the deliberative process privilege. Redland Soccer Club, 55 F.3d at 854 (citing Schreiber v. Soc'y for Sav. Bancorp., 11 F.3d 217, 221 (D.C. Cir. 1993)). In order to meet their burden, the government "must present more than a bare conclusion or statement that the documents sought are privileged." Redland Soccer Club, 55 F.3d at 854 (citing Schreiber, 11 F.3d at 221). "Otherwise, the agency, not the court, would have the power to determine the availability of the privilege." Redland Soccer Club, 55 F.3d at 854 (citing Schreiber, 11 F.3d at 221). The agency head is required to personally review the documents, provide "a specific designation and description of the documents claimed to be privileged," and must provide "precise and certain reasons for preserving the confidentiality of the communication;" additionally, the claims are "[u]sually . . . raised by affidavit." Startzell, 2006 U.S. Dist. LEXIS 74579, at *8 n. 5 (quoting O'Neill, 619 F.2d at 226); see also Griffin-El, 2009 U.S. Dist. LEXIS 20651, at *13-16 (citations omitted). Further, submission of the documents for in camera inspection is often appropriate. See Griffin-El, 2009 U.S. Dist. LEXIS 20651, at *17-18 (citing Kerr v. U.S. Dist. Ct. for the N.D. of Cal., 426 U.S. 394, 405 (1976)). Defendants have complied with these procedures after receiving specific direction from the Court on more than one occasion.
(1) WHETHER THE DOCUMENTS ARE PREDECISIONAL AND DELIBERATIVE
"To determine if the privilege applies, courts in the Third Circuit apply a two-part test:
(1) determine whether the communications are privileged and (2) balance the parties' interests." Startzell, 2006 U.S. Dist. LEXIS 74579, at *8 (citing Redland Soccer Club, 55 F.3d at 854). At the first step, the "party asserting the privilege must show the information sought is pred[e]cisional and deliberative." Startzell, 2006 U.S. Dist. LEXIS 74579, at *9 (citing Cipolla v. County of Rensselaer, 2001 U.S. Dist. LEXIS 16150, at *7 (N.D.N.Y. Oct. 10, 2001)). "Specificity of description is necessary to enable the Court to comply with its duty of insuring that the privilege is invoked as narrowly as possible consistent with its objectives." Resident Advisory Bd. v. Rizzo, 97 F.R.D. 749, 753 (E.D. Pa. 1983).
"The information is predecisional if it reflects the steps that lead to the agency's final decision." Startzell, 2006 U.S. Dist. LEXIS 74579, at *9 (citing Cipolla, 2001 U.S. Dist. LEXIS 16150, at *7). To prove that the documents are predecisional, "the agency need not identify the specific policy decision related to the document." Cozen O'Connor v. United States Dep't of Treasury, 570 F. Supp. 2d 749, 779-80 (E.D. Pa. 2008) (citing NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 153 n. 18 (1975)) (examining the application of the deliberative process privilege under Exemption 5 of the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552(b)(5));*fn2 see Gaskin v. Commonwealth of Pennsylvania, 1997 WL 734031, at *1 n. 2 (E.D. Pa. Nov. 4, 1997) (quoting Manna v. United States Dep't of Justice, 815 F. Supp. 798, 815 (D.N.J. 1993)) (the agency need not identify a particular decision, rather it must "merely establish 'what deliberative process is involved, and the role played by the documents in issue in the course of that process'"); see also Manna, 815 F. Supp. at 815 (quoting Coastal States, 617 F.2d at 868). Indeed, the Supreme Court of the United States has cautioned that a specific decision need not be tied to the documents by the government, because "[a]gencies are, and properly should be, engaged in a continuing process of examining their policies; this process will generate memoranda containing recommendations which do not ripen into agency decisions; and the lower courts should be wary of interfering with this process." Sears, Roebuck & Co., 421 U.S. at 153 n. 18.
The information "is deliberative if it reflects the process the agency used to reach the decision." Startzell, 2006 U.S. Dist. LEXIS 74579, at *9 (citing Cipolla, 2001 U.S. Dist. LEXIS 16150, at *7). "The material to be protected must reflect the 'give and take' of the consultative process, the personal opinions of the agency members in the course of policy formulation rather than the policy of the agency itself." Rizzo, 97 F.R.D. at 753 (citing Coastal States, 617 F.2d at 866). "The deliberative process privilege goes to conceptualizing and not to the gathering of facts." Cozen O'Connor, 570 F. Supp. 2d at 780. "However, when factual material exposes the deliberative process," the agency can invoke the privilege "unless the agency can redact the exempt material without revealing the thought process." Id. (citing Wolfe v. Dep't of Health and Human Serv., 839 F.2d 768, 774 (D.C. Cir. 1988)). Some courts have extended the deliberative process privilege to "recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency." Gaskin, 1997 WL 734031, at *1 n. 2 (quoting Manna, 815 F. Supp. at 815) (additional citation omitted).
With respect to whether Defendants have carried their burden of proving the documents are predecisional, Defendants identify two potential types of decisions that may be made as a result of the contents of an inmate's mental health records. Secretary Beard noted in his declaration that the opinions of mental health professionals located in inmate mental health records, if inaccurate, could cause the DOC to place the Defendant in housing where he could be a danger to others. Beard Decl. ¶ 17. Additionally, Secretary Beard notes that inaccurate mental health records could cause an inmate to be prematurely paroled. Id. Secretary Beard also notes that decision-makers need to "have the benefit of honest observations from professionals in the field." Id. ¶ 20.
Plaintiff's first request for documents is the mechanism through which he seeks production of his mental health records. In his first request for documents, Plaintiff specifically seeks:
All files or records kept by the Prison concerning Plaintiff, including, but not limited to, documents concerning his incarceration at the Prison, inmate status, jobs, education, courses, medical records, psychological records, ...