Zeleny v. Brown

Background

Michael Zeleny alleged that the City of Menlo Park conspired with New Enterprise Associates to interfere with his protests and suppress his speech. He alleged, among other things, that police officers repeatedly stopped and questioned him and his supporters, followed them, interfered with protests, surveilled them, and falsely labeled Zeleny a security risk. He also alleged that the City denied his applications for permits to carry an unloaded firearm during performances.

Zeleny served document requests seeking records relating to him and to any actual or contemplated arrest or criminal prosecution of him. The dispute concerned approximately 40 pages of responsive documents. The City invoked the official-information privilege, a qualified protection that can allow a government entity to withhold information when disclosure would harm significant law-enforcement or privacy interests. The City also objected under California Evidence Code section 1040 and referred to California Government Code section 6253(f), but the court held that federal privilege law applied because Zeleny’s claims arose under federal law.

Court’s analysis

The court explained that the privilege required the City to make a substantial threshold showing through specific and competent declarations. If that showing were made, the court would balance Zeleny’s need for the documents against the City’s law-enforcement and privacy interests.

The court found the documents clearly relevant to Zeleny’s conspiracy allegations. It explained that the conspiracy allegations could provide evidence of motive and pretext for the first claim, support an alternative theory in the third claim, and were central to the fourth claim, which alleged that the City threatened criminal prosecution to silence Zeleny and his message. The documents were dated mostly from 2012 and 2013, with one from 2011, a period Zeleny alleged involved police harassment and an effort to have him imprisoned on a concealed-carry charge.

The court found Police Chief Dave Bertini’s declaration too general to satisfy the City’s burden. The declaration stated broadly that disclosure could reveal investigative methods, damage ongoing investigations, and expose private information about third parties, but did not provide case-specific information. The court said it could overrule the privilege claim on that basis alone.

The court nevertheless conducted a private review of the documents. It found some information that had been sensitive eight years earlier, including planned visits by a presidential candidate and the Secretary of Defense, law-enforcement updates, information about suspicious activities, and assessments of security threats to the 2012 election. None of the documents was classified. The court found that the documents were so old that producing them would not undermine legitimate law-enforcement objectives. Because the documents identified specific people, including law-enforcement officers and others, the court required a protective order and stated that the documents should not be posted publicly on the internet.

Ruling

The court overruled the City’s official-information privilege objection and ordered the City to produce the disputed documents, subject to an appropriate protective order. Within seven days, the parties were required to file either a joint proposed protective order or competing proposed orders together with a joint discovery letter brief of no more than five pages. The order addressed discovery only and did not decide the merits of Zeleny’s underlying claims.