In re Ochoa

In In re Ochoa (2011) 199 Cal.App.4th 1274, the inmate filed a petition for writ of habeas corpus in the superior court, challenging the Governor's reversal of the Board's grant of parole. The Governor's decision was based, in part, on undisclosed confidential information in the inmate's prison file. (Id. at p. 1277.) After reviewing the confidential information in camera, the superior court found it to be relevant and reliable, but nevertheless ordered that the prison warden choose between producing unredacted copies of the confidential information to the inmate or opposing the habeas petition without relying on the confidential information. (Id. at p. 1280.) The court of appeal granted the warden's petition for a writ of mandate seeking relief from such order. The court reasoned that certain prison inmate records were subject to the official information privilege of Evidence Code section 1040 because there is a valid state interest in keeping those records confidential to "(1) protect individuals, including informants inside and outside of prison, (2) ensure institutional security, and (3) encourage candor and complete disclosure of information concerning inmates from both public officials and private citizens." (Ibid.) The court further explained that, while the official information privilege was "not absolute" and "may only be exercised within the parameters delineated by In re Prewitt (1972) 8 Cal.3d 470," the "Prewitt rationale does not apply if 'a disclosure will impose a risk of harm to some informant.'" (Id. at p. 1282.) Because the information sought in Ochoa "(1) was clothed with the indicia of confidentiality and therefore conditionally privileged, and (2) came from prison inmate informants who would necessarily be endangered if their identities were disclosed," the superior court abused its discretion in ordering either the disclosure of, or non-reliance on, such confidential information. (Id. at 1283.) The appellate court in Ochoa also concluded that the "in camera hearing procedure provided for in Evidence Code section 915, subdivision (b),3 was applicable for the purpose of having the warden assist the superior court in determining how much of the confidential information can be disclosed to the inmate's counsel." (Ochoa, supra, 199 Cal.App.4th at p. 1283.) The Court stated that it "'deemed such procedure to be an expedient one in view of the need to balance the respective rights of the inmate and the state in accordance with the views articulated in Prewitt.'" (Ibid.) The court issued a peremptory writ of mandate directing the superior court to vacate its prior order and to set an in camera hearing with the warden "for the purpose of thereafter disclosing -- only to the inmate's counsel -- as much of the confidential information that can be disclosed without revealing informants' identities." (Id. at p. 1284)