Southcentral Foundation v. Alaska Native Tribal Health Consortium

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
SOUTHCENTRAL FOUNDATION,
Plaintiff,
vs.
ALASKA NATIVE TRIBAL HEALTH
CONSORTIUM,
Defendant.
Case No. 3:17-cv-00018-JMK
ORDER FOR IN CAMERA REVIEW
At Docket 358, Southcentral Foundation (“SCF”) filed a Motion to Enforce
Judgment. Alaska Native Tribal Health Consortium (“ANTHC”) responded at Docket 373.
SCF replied at Docket 385. 	The parties provided various other filings for the Court’s
review, which each are fully briefed.
I. 	BACKGROUND
“This case is a dispute over what information SCF is entitled to receive from
ANTHC in order to ‘exercise effectively the governance and participation rights’ created
by section 325 of the Department of the Interior and Related Agencies Appropriation Act
of 1998, Pub. L. No. 105-83, 111 Stat. 1543,”1 (“Section 325”). At Docket 352, the Court
1 Docket 352 at 2.
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issued an Order (“the 352 Order”) which resolved SCF’s Motion for Summary Judgment
and dismissed the case.2 The Court assumes familiarity with the factual background of the
352 Order, including ANTHC’s creation and SCF’s status as a “Designating Entity,” for
ANTHC.3
The 352 Order states that, because SCF is a Designating Entity on ANTHC’s
Board, “SCF has an absolute right to any information that is necessary for SCF to
effectively exercise its governance and participation rights.”4 	The 352 Order does not,
however, specify what types or categories of information are necessary for SCF to
effectively exercise its governance and participation rights.5 	Rather, the 352 Order
provides that the ANTHC Board will determine what information is necessary for SCF to
effectively exercise its governance and participation rights and that SCF may contest
ANTHC’s determinations.6
SCF alleges that Section 5.4.1.7 of ANTHC’s disclosure policy violates the
352 Order and must be stricken.7 	SCF also alleges that ANTHC continues to withhold
information necessary for SCF to exercise its governance rights and requests an order
requiring ANTHC disclose the withheld documents.8
2 Id. at 32–33.
3 Id. at 9.
4 Id. at 29.
5 Id. at 32.
6 Id.
7 Docket 358 at 17.
8 Id. at 18–19.
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ANTHC first raised the issue of in camera review arguing, in part, that SCF’s
failure to “request in camera review of the relevant documents signals that it is not truly
interested in the documents.”9 SCF replied to ANTHC’s argument by requesting in camera
review and later reaffirmed its request.10
II. 	LEGAL STANDARD
The United States Supreme Court has long “approved the practice of
requiring parties who seek to avoid disclosure of documents to make the documents
available for in camera inspection.”11 The “principal benefit of an in camera inspection is
that it enables the trial court to make a case specific determination,” but this task may be
an “onerous burden” to render a decision with “little precedential value.”12 Where there is
no assertion that the documents are subject to privilege, the decision whether to conduct an
in camera review rests in the sound discretion of the court.13
In exercising its discretion, the Court will consider the following factors:
(1) the volume of materials it is being asked to review; (2) the document’s relative
9 Docket 373 at 19–20.
10 Docket 385 at 24 n.75; Docket 394 at 2.
11 United States v. Zolin, 491 U.S. 554, 559 (1989).
12 Quinon v. F.B.I., 86 F.3d 1222, 1228 (D.C. Cir. 1996).
13 See Fisher v. Stewart, 37 F. App’x 947, 949 (9th Cir. 2002) (stating that the “district
court did not abuse its discretion in denying Fisher’s motion for in camera review of certain
documents,”); see also Zolin, 491 U.S. at 572; In re Grand Jury Investigation, 974 F.2d 1068,
1074 (9th Cir. 1992) (providing that where privilege has been asserted the court must first
determine whether there is a factual basis adequate to support a good faith belief that the documents
are either not privileged or that an exception to the privilege applies, and if there is a factual basis
adequate to support such a good faith belief the decision whether to perform in camera review
rests in the sound discretion of the court. In the absence of an asserted privilege, the first step in
Zolin is unnecessary and courts presumably move directly to the second step, which is exercising
their sound discretion whether the perform in camera review.).
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importance to the underlying case; and (3) the likelihood that the materials may be
disclosed.14
III. 	DISCUSSION
ANTHC opposes SCF’s request for in camera review arguing the request is
“irrelevant to the relief SCF seeks, untimely, and procedurally improper.”15 	ANTHC
claims that SCF’s request is “pretextual,” and that SCF is actually seeking to “rewrite
ANTHC’s governance policies.”16 	ANTHC further claims that an in camera review is
essentially an evidentiary hearing and SCF failed to follow the proper procedure for
requesting an evidentiary hearing.17
In response, SCF points out that ANTHC provides no argument that the 15
documents are irrelevant for determining whether information has been unlawfully
withheld from SCF by ANTHC.18 SCF also argues that a request for in camera review is
not a request for an evidentiary hearing.
The Court agrees with SCF and will perform in camera review. The Court
notes that all three factors weigh in favor of performing in camera review. 	First, SCF’s
request 	is 	limited 	to 	15 	documents, 	and 	therefore 	is 	not 	overly 	burdensome 	or
voluminous.19 Second, in camera review will assist the Court in determining whether the
information contained in the requested documents is necessary for SCF to exercise its
14 Zolin, 491 U.S. at 572.
15 Docket 395 at 4.
16 Id. at 4–5.
17 Id. at 5.
18 Docket 396 at 4.
19 Docket 385 at 24 n.75.
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governance rights. Such a determination strikes at the heart of SCF’s pending motion and
the case generally.20 	Third, the 352 Order requires ANTHC to disclose all information
necessary for SCF to exercise its governance and participation rights, including potentially
privileged documents.21 Therefore, if any of the documents contain necessary information
for SCF to exercise its governance and participation rights, they may, and will, be disclosed
to SCF.
IV. 	CONCLUSION
The Court hereby ORDERS in camera review of the 15 documents ANTHC
withheld from SCF. ANTHC shall file the 15 documents ex parte on or before January 24,
2024.
IT IS SO ORDERED this 8th day of January, 2024, at Anchorage, Alaska.
/s/ Joshua M. Kindred
JOSHUA M. KINDRED
United States District Judge
20 See generally Docket 358.
21 Docket 352 at 33.
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