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SPINNER v. CITY OF NEW YORK

United States District Court, E.D. New York


February 19, 2004.

SPINNER, et al., Plaintiffs, -against- CITY OF NEW YORK, et al., Defendants

The opinion of the court was delivered by: CHERYL POLLAK, Magistrate Judge

ORDER

By letter dated November 7, 2003, counsel for defendants have submitted copies of redacted and unredacted documents, bearing Bates Nos. NYC000906-954, for in camera review by the Court, claiming that the redacted portions contain privileged information and are beyond the scope of the Court's Order of September 18, 2003. In that Order, this Court directed defendants to produce, records relating to the conditions of confinement at Brooklyn Central Booking from 1999 to 2001, as well as training logs for the same period.*fn1 Although defendant's letter of November 7, 2003 does not discuss in detail the nature of the privileges claimed, the actual documents are redacted with notations indicating the nature of the privilege asserted. In addition to one document for which attorney-client privilege is claimed, defendants seek to protect certain telephone numbers and other identifying information for certain individuals. However, the majority of the documents are redacted under the guise of the deliberative process privilege, or as irrelevant and beyond the scope of the Court's Order of September 18, 2003.

In response, plaintiffs contend that: (1) defendants' assertion of the deliberative process Page 2 privilege is conclusory and defendants have given no explanation as to why a particular document falls within the protection of the privilege; (2) the documents are not covered by the deliberative process privilege to the extent that they contain factual material and do not reflect decision making by individuals in the "highest ranks" of City government; (3) the defendants have failed to provide either a privilege log as required by Local Rule 26.2 or an affidavit from an agency head demonstrating the specific harms that would flow from disclosure; (4) the privilege is inapplicable since the defendants' decision making process itself is the subject of this litigation; and (5) in any event, the plaintiffs' substantial need for the documents outweighs the privilege.

  DISCUSSION

  The deliberative process privilege is premised on the assumption that `"effective and efficient governmental decision making requires a free flow of ideas among governmental officials and that inhibitions will result if officials know that their communications may be revealed to outsiders,'" New York City Managerial Employee Ass'n v. Dinkins, 807 F. Supp. 955, 957 (S.D.N.Y. 1992) (quoting In re Franklin Nat'l Bank Sec. Litig., 478 F. Supp. 577, 580-81 (E.D.N.Y. 1979)). It also serves to protect the public from the potential confusion caused by premature exposure to policies before they are adopted,

  The agency claiming the privilege must demonstrate both that the document is predecisional and that the document is a part of the deliberative process. See Hopkins v. United States Dep't of Hous. & Urban Dev., 929 F.2d 81, 84 (2d Cir. 1991). In order to establish that the communication is predecisional, it must be shown that the communication was "generated before a final decision had been reached with respect to the subject matter of the Page 3 communication," New York City Managerial Employee Ass'n v. Dinkins, 807 F. Supp. at 957, and that it was prepared in order to assist the decisionmaker in arriving at his or her decision. See Resolution Trust Corp, v. Diamond, 137 F.R.D. 634, 640 (S.D.N.Y. 1991). By contrast, any materials related to post-decisional communications, including the explanation, interpretation, or application of an existing policy, are not privileged since the decision has already been made and disclosure would not tend to stifle or inhibit deliberations. See id. at 641.

  The second requirement is that the communication must be deliberative in nature. See Hopkins v. United States Dep't of Hous. & Urban Dev., 929 F.2d at 84. The statement itself must be "a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters. Put another way, pre-decisional materials are not exempt merely because they are pre-decisional; they must also be a part of the agency give-and-take of the deliberative process by which the decision itself is made." Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975).

  Included within the privilege are documents "memorializing communications among and within City agencies concerning policy issues and alternatives," New York City Managerial Employee Ass'n v. Dinkins, 807 F. Supp. at 957, communications that explain and discuss positions an agency might take on a particular issue, see, e.g., King v. Internal Revenue Service, 684 F.2d 517, 519-21 (7th Cir. 1982), or that make a recommendation as to whether to proceed with a proposed action, see, e.g., Cliff v. Internal Revenue Service, 496 F. Supp. 568, 575 (S.D.N, Y. 1980), drafts of a document, see, e.g., Dudman Communications Corp. v. Department of the Air Force, 815 F.2d 1565, 1569 (D.C. Cir. 1987), comments on a draft document, see, e.g., Cliff v. Internal Revenue Service, 529 F. Supp. 11, 15 (S.D.N.Y. 1981), or an agency's budget Page 4 recommendation. See, e.g., Bureau of Nat'l Affairs, Inc. v. United States Dep't of Justice, 742 F.2d 1484, 1496-98 (D.C. Cir. 1984).

  Purely factual information, however, is usually not protected even though it may have been used by the decisionmakers in their deliberations. See Resolution Trust Corp. v. Diamond, 137 F.R.D. at 640-41; see also EPA v. Mink, 410 U.S. 73. 89 (1979). Factual portions of a document that qualify for the deliberative process privilege may have to be produced if the factual information can be segregated through redaction of the document. See Resolution Trust Corp. v. Diamond, 137 F.R.D. al 641; see also EPA v. Mink, 410 U.S. at 87-88. However, if "[the] factual observations are `inextricably intertwined' with the privileged opinions and recommendations such that disclosure would `compromise the confidentiality of deliberative information that is entitled to protection," then the tactual materials themselves may fall within the, deliberative process protection. Hopkins v. United States Dep't of Hous. & Urban Dev., 929 F.2d at 85 (quoting EPA v. Mink. 410 U.S. at 92); see also Lead Industries Ass'n. Inc. v. Occupational Safety & Health Admin., 610 F.2d 70, 85 (2d Cir. 1979). Moreover, when facts are part of the analysis and disclosure of the facts would reveal the agency's underlying privileged thought processes, the entire document is privileged. See Lead Industries Ass'n. Inc. v, Occupational Safety & Health Admin., 610 F.2d at 83.

  Since the deliberative process privilege is a "qualified privilege," United States Post Office v. Phelps Dodge Refining Corp., 852 F. Supp. 156, 165 (E.D.N.Y. 1994), the court must determine whether the privilege should be overridden when the need for information outweighs the regulatory interest in preventing disclosure. See In Re Franklin Nat'l Bank Sec. Litig., 478 F. Supp. at 582-83: see also United States v. Nixon, 418 U.S. 683, 712 (1974) (suggesting that Page 5 occasional disclosure of recommendations and advice will not by itself have a devastating effect on advisors' willingness to speak freely in the future). That is, the court must weigh "the government['s] interest in confidentiality" against "the needs of the adversary litigant for the information, the societal interest in `accurate judicial fact finding,' and, in some cases, the public interest `in opening for scrutiny the government's decision making process.'" Burke v. New York City Police Department, 115 F.R.D. 220, 232 (S.D.N.Y. 1987) (quoting In Re Franklin Nat'l Bank Sec. Litig., 478 F. Supp. at 582). The court in United States Post Office v. Phelps Dodge Refining Corp., set forth a non-exhaustive checklist of some of the factors that should be considered as part of its review process:

(i) the relevance of the evidence sought to be protected, (ii) the availability of other evidence, (iii) the `seriousness' of the litigation and the issues involved, (iv) the role of the government in the litigation, and (v) the possibility of future timidity by government employees who will be forced to recognize that their secrets are violable.
852 F. Supp. at 165 (citing In Re Franklin Nat'l Bank Sec. Litig., 478 F. Supp. at 583).

  In order to assert the privilege, the agency must first submit an index, which specifically describes each of the documents asserted to be privileged. Mobil Oil Corp. v. Department of Energy, 102 F.R.D. 1, 5-7 (N.D.N.Y. 1983). It should also explain why each document is privileged, including a statement that agency deliberations are involved, and a description of the "role played by the documents" in the deliberative process. Arthur Andersen & Co. v. IRS, 679 F.2d 254, 258 (D.C. Cir. 1982): see also Mobil Oil Corp. v. Department of Energy, 102 F.R.D. at 5-7; Vaughn v. Rosen, 523 F.2d at 1144-45. In addition, many courts Page 6 require the head of the department or agency asserting the privilege to submit an affidavit to the court, stating that he/she has personally considered the assertion of privilege and reviewed the documents. Mobil Oil Corp. v. Department of Energy, 102 F.R.D. at 6; Resolution Trust Corp. v. Diamond, 137 F.R.D. at 641,

APPLICATION
  In this case, this Court finds that the majority of redactions at issue relate not to recommendations on policy issues but rather contain certain factual information that may arguably be relevant to the issues in this case — namely, the conditions of the facilities in which people are housed at Brooklyn Central Booking. However, two documents contain redactions that relate solely to proposals for dealing with monitoring and training as part of the implementation of the settlement in the Grubbs case, particularly regarding the medication policy, which is not part of this action (see Bates Nos. NYC000912-913). These redactions may be protected by the privilege, but in any case are irrelevant to this litigation.

  The remaining redactions, however, do contain relevant information, in that they relate to the conditions of confinement at Brooklyn Central Booking. The documents for which defendants claim application of the privilege largely relate to proposals to repair or upgrade equipment and facilities at Brooklyn Central Booking. Maintenance proposals of this sort are not the "communications relating to policy formulation at the higher levels of government," Jean D. V. Cuomo, No 90 CV 0861, 1993 WL 276067, *2 (S.D.N.Y. July 20, 1993), that are protected by the deliberative process privilege. Their disclosure will not prevent officials within the New York City Police Department from freely expressing their views on policy matters in the future. Thus, these redactions do not properly fall within the deliberative process privilege. Therefore, Page 7 based upon this Court's in camera review of the documents, the Court orders the following documents to be disclosed in unredacted form: NYC000908, 911, 914-919, 924-927, 934-936, 938, 940-943.

  One document appears to be protected by the attorney-client privilege (see NYC000920) and will not be ordered disclosed. The remaining documents have been redacted only to the extent that individuals' telephone numbers are listed therein. To the extent that plaintiffs indicate that such numbers are somehow relevant and necessary, the Court will reconsider those redactions. At this time, however, this Court finds that those numbers have been properly redacted.

  SO ORDERED.


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