Free Letter - District Court of California - California

Case 3:07-cv-05086-WHA

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Filed 06/10/2008

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1 EDMUND G. BROWN JR. Attorney General of the State of California 2 SUSAN M. CARSON Supervising Deputy Attorney General 3 GEORGE PRINCE, State Bar No. 133877 Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 4 San Francisco, CA 94102-7004 Telephone: (415) 703-5749 5 Fax: (415) 703-5480 6 7 Attorneys for Defendants 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 I, John A. Wagner, state as follows: 1. I am the Director of the California Department of Social Services ("CDSS"). As v. JOHN A. WAGNER, Director of the California Department of Social Services, in his official capacity; MARY AULT, Deputy Director of the Children and Family services Division of the California Department of Social Services, in her official capacity, Defendants. CALIFORNIA STATE FOSTER PARENT ASSOCIATION, CALIFORNIA STATE CARE PROVIDERS ASSOCIATION, and LEGAL ADVOCATES FOR PERMANENT PARENTING, Plaintiffs, C 07-5086 WHA DECLARATION OF JOHN A. WAGNER IN SUPPORT OF DEFENDANTS' CLAIM OF DELIBERATIVE PROCESS PRIVILEGE IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

24 Director, I am responsible for the implementation of CDSS policy and the overall operation and 25 administration of the CDSS. I have held this position since April of 2007. 26 2. The CDSS is responsible for the administration, interpretation, and enforcement of,

27 among other statutes, including the federal Child Welfare Act, 42 U.S.C.sections 670-679b, and the 28 programs related to that Act in California, and California Welfare and Institutions Code section
Decl. of John A. Wagner iso Defendants' Claim of Privilege California State Foster Parent Association, et al. v. Wagner C 07-5086 WHA

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1 11400 et seq., which includes the administration of the rate structure for foster family homes. As 2 Director, I am authorized to invoke, on behalf of the CDSS, the governmental privilege for 3 deliberative processes. 4 3. The operation of the CDSS requires the free expression by CDSS employees of analyses,

5 advice, recommendations, and conclusions regarding legislative analyses processed by the CDSS. 6 I have personally reviewed the first of the several documents and portions of documents described 7 in Exhibit A to this declaration, the legislative analysis for AB 2481. Although I was not Director 8 of CDSS at the time the documents referred to in Exhibit A were prepared, the documents described 9 in Exhibit A are identical in nature to documents that are prepared under my directorship of CDSS, 10 by which I mean that such documents -- whether prepared prior to my tenure at CDSS or during my 11 tenure -- contain pre-decisional analyses, recommendations, and conclusions of CDSS investigatory 12 and legal personnel regarding proposed, enrolled, and chaptered bills that are introduced into the 13 State legislature. 14 4. The legislative analysis for AB 2481 that I personally reviewed reflects the advice,

15 opinions, and recommendations by which government policy is processed and formulated. The 16 other five documents listed on the privilege log are being retrieved from archived files at this time, 17 and I have not have a chance to review them. However, I have no reason to believe that they differ 18 materially from the analysis for AB 2481 in that they all can be expected to contain the same type 19 of pre-decisional analyses, recommendations, and conclusions of CDSS investigatory and legal 20 personnel. As such, all these analyses from intra-departmental divisions and programs are part of 21 a process by which various opinions and recommendations are directed to CDSS's Office of 22 Legislation, where they are compiled into a single document. This document, which represents a 23 consolidation into one recommendation, is sent to the California Health and Human Services 24 Agency, the state agency that oversees CDSS, where it is considered by the Secretary of Health and 25 Human Services' staff before being presented to the Governor's Office as part of the government's 26 deliberative process. CDSS does not have decisional authority, but only participates in the

27 deliberative process. By their nature, as described, all bill analyses are pre-decisional and 28 deliberative. Disclosure of these materials would expose CDSS's participation in the

Decl. of John A. Wagner iso Defendants' Claim of Privilege California State Foster Parent Association, et al. v. Wagner C 07-5086 WHA

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1 decision-making process in such a way as to discourage candid discussion within CDSS and the 2 Agency, and would thus undermine CDSS's and the Agency's abilities to perform their functions. 3 5. Access to the legislative analyses prepared by my staff is strictly controlled; such

4 documents are seen only by those authorized by me to see them, are not made public, and are sent 5 in confidence to only those persons at the Agency authorized to receive the confidential documents. 6 6. I conclude that disclosure to individuals outside CDSS of the documents and portions of

7 documents described in Exhibit A would inhibit the free expression of opinions by CDSS 8 employees, thereby impairing the CDSS's ability to offer meaningful analyses, recommendations, 9 and conclusions to the Health and Human Services Agency and to participate fully in the pre10 decisional activities in support of the Agency's and the Governor's decision-making processes. 11 7. For the reasons stated in the preceding paragraphs, I hereby claim, on behalf of CDSS,

12 the governmental deliberative processes privilege for the documents and portions of documents, 13 described in Exhibit A. 14 8. This declaration is based on personal knowledge. If called to testify in this action, I could

15 and would competently testify to the matters set forth herein. 16 I declare under penalty of perjury that the foregoing is true and correct, and that this

17 declaration was executed electronically, at my request, on June 3, 2008, while I was in Sacramento, 18 California. 19 20 21 22 GENERAL ORDER 45 ATTESTATION 23 I, George Prince, am the ECF user whose ID and password are being used to file this request for an order. In compliance with General Order 45, X.B., I hereby attest that declarant John A. 24 Wagner has concurred in the filing of this document with his electronic signature. 25 Dated: June 3, 2008 /s/ George Prince 26 27 28
Decl. of John A. Wagner iso Defendants' Claim of Privilege California State Foster Parent Association, et al. v. Wagner C 07-5086 WHA

/s/ John A. Wagner JOHN A. WAGNER Director, California Department of Social Services

George Prince

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CALIFORNIA STATE FOSTER PARENT ASSOCIATION, et al., v. JOHN A. WAGNER, et al. United States District Court, Northern District of California, Case No. C 07-5086 WHA

PRIVILEGE LOG

LOG NO. & BATES NO. 1 CONF 0001 to 0006

DISCOVERY REFERENCE

DOCUMENT/INFO DESCRIPTION

AUTHOR

RECIPIENT

PRIVILEGE(S) CLAIMED; STEPS TAKEN TO ENSURE CONFIDENTI-ALITY Deliberative Process Privilege; no one at DSS other than the person who compiles analysis and the Director's designees have access to the analysis; no public disclosure; and analysis sent in confidence only to authorized Health and Human Services Agency and Governor's Office staff.

PRESENT LOCATION

Plaintiffs' first request for production of documents, Request No. 10

Confidential Bill Analysis re: AB 2481; April 5, 2006

Complied by Legislative Analyst Noel Cavillo from CDSS staff input.

California Health and Human Services Agency

California Department of Social Services, Sacramento

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2 CONF -0006 to ----

Plaintiffs' first request for production of documents, Request No. 10

Confidential Bill Analysis re: AB 1330, re: foster youth; 2001.

[To be stated upon retrieval of bill analysis from archives, when name of person who complied can be determined.]

California Health and Human Services Agency

Deliberative Process Privilege; no one at DSS other than the person who compiles analysis and the Director's designees have access to the analysis; no public disclosure; and analysis sent in confidence only to authorized Health and Human Services Agency and Governor's Office staff.

California Secretary of State archives, West Sacramento

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3 CONF ----- to ----

Plaintiffs' first request for production of documents, Request No. 10

Confidential Bill Analysis re: 1235, re: foster care, infant supplement rate, 1999.

[To be stated upon retrieval of bill analysis from archives, when name of person who complied can be determined.]

California Health and Human Services Agency

Deliberative Process Privilege; no one at DSS other than the person who compiles analysis and the Director's designees have access to the analysis; no public disclosure; and analysis sent in confidence only to authorized Health and Human Services Agency and Governor's Office staff.

California Secretary of State archives, West Sacramento

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4 CONF ----- to ----

Plaintiffs' first request for production of documents, Request No. 10

Confidential Bill Analysis re: AB 278, re: foster care providers: child care payments; 1991.

[To be stated upon retrieval of bill analysis from archives, when name of person who complied can be determined.]

California Health and Human Services Agency

Deliberative Process Privilege; no one at DSS other than the person who compiles analysis and the Director's designees have access to the analysis; no public disclosure; and analysis sent in confidence only to authorized Health and Human Services Agency and Governor's Office staff.

California Secretary of State archives, West Sacramento

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5 CONF ----- to ----

Plaintiffs' first request for production of documents, Request No. 10

Confidential Bill Analysis re: AB 2043, re: foster care: provider reimbursement; 1998.

[To be stated upon retrieval of bill analysis from archives, when name of person who complied can be determined.]

California Health and Human Services Agency

Deliberative Process Privilege; no one at DSS other than the person who compiles analysis and the Director's designees have access to the analysis; no public disclosure; and analysis sent in confidence only to authorized Health and Human Services Agency and Governor's Office staff.

California Secretary of State archives, West Sacramento

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6 CONF ----- to ----

Plaintiffs' first request for production of documents, Request No. 10

Confidential Bill Analysis re: AB 1820, re: foster care providers and child care payments; 1998.

[To be stated upon retrieval of bill analysis from archives, when name of person who complied can be determined.]

California Health and Human Services Agency

Deliberative Process Privilege; no one at DSS other than the person who compiles analysis and the Director's designees have access to the analysis; no public disclosure; and analysis sent in confidence only to authorized Health and Human Services Agency and Governor's Office staff.

California Secretary of State archives, West Sacramento

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