The opinion of the court was delivered by: NEAL P. MCCURN
The Secretary of the United States Department of Labor ("DOL") commenced this action in March, 1990 under the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. (1988) ("FLSA").
The DOL alleges that certain reporters at the defendant publisher, the Albany Business Journal ("ABJ"), are entitled to back-pay as compensation for overtime work. Jurisdiction is based on 29 U.S.C. § 217 (1988) and 28 U.S.C. § 1331 (West Supp. 1991).
The litigation is now in the discovery phase. This motion addresses various disputes that have arisen concerning the permissible breadth of ABJ's discovery.
The defendant ABJ publishes the Capital District Business Review, a weekly newspaper focussing on business subjects. On March 16, 1990, the DOL filed a complaint in this court against ABJ, alleging that ABJ failed to pay proper "overtime compensation" to its reporters as required by the FLSA. The wages of twelve reporters are at issue. In its answer, ABJ raised as an affirmative defense that the reporters in question were employed in a professional capacity and, as such, were exempt from the FLSA's overtime compensation requirements.
Discovery is now underway. As part of its discovery, ABJ has sought from DOL the identities and statements of ABJ employees (past and present) who were interviewed by DOL representatives. DOL has objected to this discovery, asserting (1) informant's privilege, and (2) work-product privilege. DOL invoked these privileges through an affidavit submitted by John R. Fraser, the Acting Director of the DOL's Wage and Hour Division. DOL concedes that Fraser has "no personal knowledge of the investigation which led to the filing of this civil action." Pl. Mem. in Support of Motion to Quash (3/7/91), at 2-3.
DOL's privilege objections are the basis of its motion now before the court, for a protective order precluding defendant's discovery of the aforementioned information, pursuant to Fed. R. Civ. P. 26(c).
Fed. R. Civ. P. 26(b)(1) provides that "parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action . . . ." (emphasis added). DOL's motion to preclude ABJ from obtaining the identities of, and statements and other written materials provided by, employees (past and present) interviewed by DOL representatives is grounded in the claimed existence of two privileges: (1) informant's privilege, and (2) work-product privilege. The court will discuss seriatim the applicability of each privilege to this case.
The "informant's privilege" is the government's evidentiary privilege to withhold the identity of persons who provide the government with information of possible violations of law. E.g. Roviaro v. United States, 353 U.S. 53, 59, 1 L. Ed. 2d 639, 77 S. Ct. 623 (1957); Brock v. On Shore Quality Control Specialists, Inc., 811 F.2d 282 (5th Cir. 1987) (citing numerous instances of application in FLSA context); In re United States, 565 F.2d 19, 22 (2d Cir. 1977), cert. denied sub nom, Bell v. Socialist Workers Party, 436 U.S. 962, 57 L. Ed. 2d 1129, 98 S. Ct. 3082 (1978). The rule "is founded on the proposition that an informer may well suffer adverse effects from the disclosure of his identity." In re United States, 565 F.2d at 19.
The rule concerning application of the informant's privilege in the Second Circuit is set forth most extensively in In re United States, 565 F.2d at 22-24.
The informant's privilege is not absolute. The Second Circuit instructs that "where the identification of an informer or the production of communications is essential to a fair determination of the issues in the case, the privilege cannot be invoked." In re United States, 565 F.2d at 22-23 (citing, e.g., Roviaro, 353 U.S. at 60-61). Hence, a case-specific "balancing test" is required to determine whether the privilege may be properly invoked in a given case. Id.; On Shore, 811 F.2d at 283.
1. Invocation of the informant's privilege
ABJ argues that the court should not even consider DOL's assertion of the informant's privilege because the privilege was not properly invoked. ABJ argues that the informant's privilege can be invoked only by a formal claim of privilege asserted by the head of the department having control over the requested information, in this case the Secretary of Labor. ABJ also argues that the assertion of the privilege must be based upon the actual personal consideration of the facts of this case by the official, and that the official invoking the privilege must explain why the sought information falls within the scope of the privilege. DOL, of course, disagrees and contends that the privilege was properly invoked in this case by Fraser, the Acting Administrator of DOL's Wage and Hour Division.
The question of whether the "formal claim of privilege" requirement applies to the informant's privilege is apparently one of first impression.
At oral argument, the court asked the parties to provide supplemental briefing on the issue of proper invocation of the informant's privilege. The parties have done so. After considering the arguments and case authority on point, the court concludes that the informant's privilege was not properly invoked in this case.
ABJ correctly stated the standard for proper invocation of the informant's privilege. In sum, the informant's privilege is properly invoked only when it is asserted by a formal claim of privilege lodged by the head of the department having control over the requested information. The "agency head" may delegate his authority to claim the privilege, but only to a subordinate of high authority, and the delegation must be accompanied by guidelines on the use of the privilege. Finally, the assertion of the privilege must based upon actual personal consideration of the facts by that official. Cf. Mary Imogene Bassett Hosp. v. Sullivan, 136 F.R.D. 42, 44 (N.D.N.Y. 1991) (Cholakis, J.); Mobil Oil Corp. v. Department of Energy, 520 F. Supp. 414, 416 (N.D.N.Y. 1981) (Munson, C.J.).
The applicability of this stringent standard to the informant's privilege is compelled by a simple syllogism, which in turn is supported by two inescapable premises. The first premise is that the informant's privilege is a governmental privilege. The Supreme Court held so nearly thirty-five years ago in the principal informant's privilege case, Roviaro v. United States, 353 U.S. at 59, when it wrote:
(emphasis added). Since then, courts having spoken on the issue have also identified the informant's privilege as a governmental privilege. See Brennan v. Glens Falls Nat'l Bank & Trust, 75 Lab. Cas. (CCH) para. 33,177, at 46, 787 (N.D.N.Y. 1974) (Foley, J.); Youngblood v. Gates, 112 F.R.D. 342, 347 (C.D. Cal. 1985); see also Brock v. R.J. Auto Parts and Serv., Inc., 864 F.2d 677, 679 (10th Cir. 1988) ("government's privilege to withhold the identity of persons providing information . . . "). No courts have even remotely suggested that the informant's privilege is anything other than a governmental privilege. This premise (that the informant's privilege is a governmental privilege) is hardly extraordinary; a privilege is a "governmental privilege" simply by virtue of the fact that it is uniquely the government's privilege to assert. See Note, Discovery of Government Documents and the Official Information Privilege, 76 Colum. L. Rev. 142, 166 (1976), cited in, e.g., Garber v. United States, 73 F.R.D. 364, 365 (D.D.C. 1976), aff'd, 188 App. D.C. 172, 578 F.2d 414 (D.C. Cir. 1978). The informant's privilege is one of many governmental privileges.
Second, all government privileges must satisfy specific, formal requirements for proper invocation. United States v. O'Neill, 619 F.2d 222, 225-26 (3d Cir. 1980); Carr v. Monroe Mfg. Co., 431 F.2d 384, 388 (5th Cir. 1970), cert. denied sub nom, Aldridge v. Carr, 400 U.S. 1000, 27 L. Ed. 2d 451, 91 S. Ct. 456 (1971).
This is so regardless of the type of governmental privilege asserted. O'Neill, 619 F.2d at 226; see Coastal Corp. v. Duncan, 86 F.R.D. 514, 517 (D. Del. 1980) (applies to all "executive privileges"). The formal invocation requirements have been required for invocation of the military secrets privilege, United States v. Reynolds, 345 U.S. 1, 7-8, 97 L. Ed. 727, 73 S. Ct. 528 (1953); the executive privilege, e.g. Black v. Sheraton Corp. of America, 184 App. D.C. 46, 564 F.2d 531, 543 (D.C. Cir. 1977); the official information privilege, Garber v. United States, 73 F.R.D. 364, 364-64 (D.D.C. 1976); and the law enforcement investigatory privilege, In re Sealed Case, 272 App. D.C. 314, 856 F.2d 268, 271 (D.C. Cir. 1988). Two courts within this district have applied the requirements to the deliberative processes, or predecisional, privilege. Mary Imogene Bassett Hosp. v. Sullivan, 136 F.R.D. 42, 44 (N.D.N.Y. 1991) (Cholakis, J.); Mobil Oil Corp. v. Department of Energy, 520 F. Supp. 414, 416 (N.D.N.Y.) (Munson. J.), rev'd on other grounds, 659 F.2d 150 (T.E.C.A.), cert. denied, 454 U.S. 1110, 70 L. Ed. 2d 65, 102 S. Ct. 687 (1981).
The conclusion that these two premises yields is that the informant's privilege, being a governmental privilege, is subject to the aforementioned strict requirements for formal invocation. See standards delineated at p. 6; Reynolds, 345 U.S. at . The rationale behind the judiciary's imposition of a formal claim requirement for assertion of governmental privileges seems obvious enough. Courts need to ensure that the claim is invoked by an official with political accountability and responsibility. In 1982, the Southern District of New York expounded upon the rationale behind the formal claim requirement, when it wrote:
National Lawyers Guild v. Attorney General, 96 F.R.D. 390, 396 (S.D.N.Y. 1982) (citations omitted) (footnote omitted) (military secrets context). See O'Neill, 619 F.2d at 226-27 (need for careful executive review).
Only by mandating that an accountable executive official invoke a governmental privilege can the courts be confident that the privilege is responsibly asserted based on agency goals and policies, and is not abused for litigation purposes. Coastal Corp., 86 F.R.D. at 518; Pierson v. United States, 428 F. Supp. 384, 395 (D. Del. 1977). The District of Delaware most concisely summarized the rationale behind the formal claim requirement, stating:
requiring the agency head to claim the privilege assures the Court, which must make the ultimate decision, that [the] executive privilege has not been lightly invoked by the agency . . ., and that in the considered judgment of the individual with an overall responsibility for the administration of the agency, the documents withheld are indeed thought to be privileged.
Coastal Corp., 86 F.R.D. at 518 (citation omitted) (executive privilege context).
The formal claim requirements may be harsh, but governmental privileges are not to be lightly invoked; after all, they effectively deny an adversary the opportunity to inquire into perhaps dispositive areas of fact. Pierson, 428 F. Supp. at 395-96.
DOL's efforts to distinguish the informant's privilege from other governmental privileges are laudible but not persuasive. DOL's argument that the formal claim requirement is only required for cases involving absolute governmental privileges is unavailing, for it flies in the face of the unambiguous case precedent to the contrary. See Mary Imogene Bassett Hosp., 136 F.R.D. at 45, and Mobil Oil Corp., 520 F. Supp. at 417, in which Judges Cholakis and Munson required formal invocation of a qualified privilege. There is absolutely no reasonable indication in any case that the informant's privilege, as a governmental privilege, should be treated differently from all of the other governmental privileges.
Furthermore, the policy behind the formal claim requirement seemingly applies with equal force to the informant's privilege. Therefore, the court concludes that the formal invocation requirement of governmental privileges applies to the informant's privilege.
Of course, the head of the relevant governmental agency cannot be expected to learn the facts of every single case in which his agency seeks to invoke a governmental privilege. Such a requirement could bring the government to a virtual stand-still. See Wirtz v. Atlantic States Constr. Co., 357 F.2d 442, 446 (5th Cir. 1966); Founding Church of Scientology, Inc. v. Director, F.B.I., 104 F.R.D. 459, 465 (D.D.C. 1985). Therefore, courts have allowed agency heads to delegate their authority to invoke governmental privileges, but subject to tight restrictions. A head of an agency may delegate his authority only to a high level subordinate/delegatee, and only so long as the delegation is accompanied by guidelines on the use of the privilege. The requirement that delegation be restricted to high-level subordinates ensures that the delegatee official "has sufficient expertise in the agency's operations and functions" to be able to render a well-informed decision on whether to invoke the privilege in a given case. Mobil Oil, 520 F. Supp. at 416. In other words, limiting the agency head's ability to randomly delegate authority ensures that the purpose behind the formal invocation requirement is not eviscerated by delegation.
Turning to the present case, it is clear that the agency head responsible for invoking the privilege-- or else delegating the authority to invoke the privilege-- would be the Secretary of Labor, Lynn Martin. DOL suggests that the agency involved here is not DOL, but instead is the Wage and Hour Division of DOL, and that Fraser, as the Acting Administrator of the division, is the "agency head" empowered to assert the privilege. There is no compelling authority to support that argument. The Wage and Hour Division's enabling statute, codified at 29 U.S.C. § 204 (1988), states only that the Wage and Hour Division is a "division" of the DOL (which all parties agree to be an agency). There is no indication from the statute or elsewhere that a division of an agency is itself a separate agency, and the court is not willing to take that leap. To the contrary, it would seem that a division of an agency cannot by common logic also be considered an agency, since a division is by definition less than a whole. Since the Wage ...