United States District Court, E.D. New York
July 29, 2004.
IBRAHIM TURKMEN; ASIF-UR-REHMAN SAFI; SYED AMJAD ALI JAFFRI; YASSER EBRAHIM; HANY IBRAHIM; SHAKIR BALOCH; and AKIL SACHVEDA, on behalf of themselves and all others similarly situated, Plaintiffs,
JOHN ASHCROFT, Attorney General of the United States; ROBERT MUELLER, Director of the Federal Bureau of Investigation; JAMES W. ZIGLAR, Commissioner of the Immigration and Naturalization Service; DENNIS HASTY, former Warden of the Metropolitan Detention Center; MICHAEL ZENK, Warden of the Metropolitan Detention Center; JOHN DOES 1-20, Metropolitan Detention Center, Corrections Officers; and JOHN ROES 1-20, Federal Bureau of Investigation and/or Immigration and Naturalization Service Agents, Defendants.
The opinion of the court was delivered by: CHERYL POLLAK, Magistrate Judge
On April 17, 2002, plaintiffs commenced this action against the
Attorney General of the United States, the Director of the
Federal Bureau of Investigation ("FBI"), the Commissioner of the
(former) Immigration and Naturalization Service ("INS"), current
and former wardens of the Metropolitan Detention Center ("MDC"), and two groups of unnamed
individuals,*fn1 pursuant to Bivens v. Six Unknown Named
Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971),
the Alien Tort Claims Act, 28 U.S.C. § 1350, and the Vienna
Convention on Consular Relations, April 24, 1963, art. 36, TIAS
6820, 21 U.S.T. 77. Plaintiffs allege that they and other male
non-citizens from the Middle East and South Asia were unlawfuly
detained in the wake of the September 11, 2001 terrorist attacks.
Plaintiffs allege, inter alia, that the conditions of their
confinement were unreasonably harsh and that they were the
victims of excessive force.
On July 2, 2003, defendants filed a motion to dismiss the
claims in the second amended complaint, alleging, among other
things, that defendants were entitled to qualified immunity.
(See Defs.' Letter, dated August 4, 2003 at 2). While that
motion to dismiss was pending before the District Judge,
plaintiffs sought leave from this Court to conduct "limited"
discovery in order to obtain the identities of officers involved
in the conduct alleged in the complaint in order to name them as
defendants in the case. (Pls.' Letter, dated July 31, 2003 at 1).
By Order dated August 26, 2003, this Court allowed to plaintiffs
to proceed with discovery for the limited purpose of ascertaining
the identities of the unnamed defendants.
During the course of pursuing this limited discovery,
plaintiffs sought production of certain documents which the
government has withheld on the basis of the deliberative process
and law enforcement privileges. By letter dated June 14, 2004,
the documents were submitted to the court for in camera review.
The withheld documents include the following: (1) "Appendix A
to the OIG's*fn2 Supplemental Report Findings Relating to
Individual Staff Members" (the "Appendix"), which describes
specific offenses allegedly committed by certain officers and the
evidence relating to these incidents; (2) eight "Memoranda of
Investigation" prepared by the OIG in the course of its
investigation, which record interviews of officers as well as of
a named plaintiff; (3) OIG investigators' notes regarding certain
videotapes of activities recorded at the MDC; (4) OIG
investigators' notes regarding interviews with two named
plaintiffs; (5) photospreads indicating the identification of
guards by two plaintiffs as well as a summary of additional
photospreads conducted with named plaintiffs and other detainees
who may be potential classmembers; and (6) a computerized
printout from the Bureau of Prisons ("BOP"), listing subjects of
the investigation, as well as complainants, including one of the
plaintiffs named in this action.
The government asserts that all of the documents in dispute are
protected from disclosure by the law enforcement privilege,
stating that, if disclosed, the documents would reveal law
enforcement techniques and procedures, the identity of sources,
witnesses and law enforcement personnel, and would interfere with
an ongoing investigation. With respect to the Appendix to the
OIG's report, the government additionally claims that this
document is protected from disclosure by the deliberative process
privilege, because the document pertains to the decision making
process of officials within the Department of Justice. DISCUSSION
A. Deliberative Process Privilege
Turning first to defendants' reliance on the deliberative
process privilege, this 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 deliberative process privilege was conceived as a way "to
help preserve the vigor and creativity of the process by which
government agencies formulate important public policies."
Kelly v. City of San Jose, 114 F.R.D. 653, 658 (N.D. Ca. 1987)
(emphasis in original) (citing Branch v. Phillips Petroleum
Co., 638 F.2d 873, 881-82 (5th Cir. 1981)); see also NLRB v.
Sears, Roebuck & Co., 421 U.S. 132, 150 (1975). Thus, the
deliberative process privilege "protects `recommendations, draft
documents, proposals, suggestions, and other subjective documents
which reflect the personal opinions of the writer rather than the
policy of the agency,'" Nat'l Cong. for Puerto Rican Rights ex
rel. Perez v. City of New York, 194 F.R.D. 88, 92 (S.D.N.Y.
2000) (quoting Grand Central P'ship, Inc. v. Cuomo,
166 F.3d 473, 482 (2d Cir. 1999)), and the privilege should be invoked
only in the context of "communications designed to contribute,
directly, to the formulation of important public policy." Kelly
v. City of San Jose, 114 F.R.D. at 659 (citing Burka v. New
York City Transit Auth., 110 F.R.D. 660, 667 (S.D.N.Y. 1986)).
See also Bureau of Nat'l Affairs, Inc. v. United States Dep't
of Justice, 742 F.2d 1484, 1496-98 (D.C. Cir. 1984) (finding that privilege
applies to agency's budget recommendation); King v. Internal
Revenue Serv., 684 F.2d 517, 519-20 (7th Cir. 1982) (applying
privilege to memorandum regarding adoption of agency regulation);
New York City Managerial Employee Ass'n v. Dinkins,
807 F. Supp. at 957 (holding documents "memorializing communications
among and within City agencies concerning policy issues and
alternatives" to be within the privilege).
It is also well-established that the privilege does not "as a
general matter, extend to purely factual material." Nat'l Cong.
for Puerto Rican Rights ex rel. Perez v. City of New York,
194 F.R.D. at 93 (quoting Hopkins v. United States Dep't of Hous. &
Urban Dev., 929 F.2d 81, 84 (2d Cir. 1991)); see also Ryan v.
Department of Justice, 617 F.2d 781, 790 (D.C. Cir. 1980)
(stating that the privilege does not shield "purely factual
material which is severable from the policy advice contained in a
document"). As the court in Cruz v. Kennedy, No. 97 CV 4001,
1998 WL 689946, *8 (S.D.N.Y. Sept. 30, 1998), noted: "Generally,
documents that are factual in nature do not qualify as privilged.
Whenever possible, facts that are separable from the privileged
portion of a document should be disclosed."
The agency claiming the privilege must demonstrate both that
the document is predecisional and that the document is a part of
the deliberative process. Hopkins v. United States Dep't of
Hous. & Urban Dev., 929 F.2d at 84. 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 communication,"
New York City Managerial 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.
Resolution Trust Corp. v. Diamond, 137 F.R.D. 634, 640
(S.D.N.Y. 1991). Documents which are predecisional in nature
retain their protection even after the decision is made. See
Dipace v. Goord, 218 F.R.D. 399, 406 (S.D.N.Y. 2003). 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. Resolution Trust Corp. v.
Diamond, 137 F.R.D. at 641.
In addition, the communication must be deliberative in nature.
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.
Moreover, since the deliberative process privilege is a
"qualified privilege," United States Postal Serv. v. Phelps
Dodge Refining Corp., 852 F. Supp. 156, 165 (E.D.N.Y. 1994), the
court must "balance competing factors to determine whether the
privilege prohibits discovery." Skibo v. City of New York,
109 F.R.D. 58, 63 (E.D.N.Y. 1985). The court in United States Postal
Serv. v. Phelps Dodge Refining Corp., set forth a non-exhaustive
checklist of some of the factors that should be considered as
part of this balancing process:
(1) the relevance of the evidence to be protected;
(2) the availability of other evidence; (3) the
`seriousness' of the litigation and the issues involved; (4) the role of the government in the
litigation; and (5) 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. 577, 583 (E.D.N.Y. 1979)).
In order to assert the privilege, the agency must first submit
an index, which specifically describes each of the documents
asserted to be privileged. Vaughn v. Rosen, 523 F.2d at
1144-45; 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) (internal citations omitted); see
also Vaughn v. Rosen, 523 F.2d at 1144-45; Mobil Oil Corp. v.
Department of Energy, 102 F.R.D. at 5-7. In addition, many
courts 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 in preparation of the index. Mobil Oil
Corp. v. Department of Energy, 102 F.R.D. at 5-7; see also
Resolution Trust Corp. v. Diamond, 137 F.R.D. at 641.
Here, the defendants have submitted the Declaration of Harley
G. Lappin, Director of the BOP, along with a description of each
of the documents sought to be withheld and an explanation
justifying their need for protection. Defendants claim that
because the Appendix is inter-agency, predecisional, and
deliberative, it clearly falls within the deliberative process
Based on this Court's in camera review of the Appendix, it
appears that the Appendix generally contains a description of the evidence concerning
specific conduct of particular MDC staff members, including
interviews of staff members, allegations of detainees, an
analysis of the writer's observations of activity on certain
videotapes, and finally, a conclusion and recommendation for
action by the BOP. Indeed, a significant portion of the Appendix
not only identifies MDC officers who may have been involved in
the alleged misconduct, but includes their statements, the
statements of other staff members who witnessed the events, and
in some instances, statements of inmates who may be potential
class members in this litigation.
Courts have recognized the difficulty of applying the
deliberative process privilege to most information generated by
law enforcement agencies. Kelly v. City of San Jose,
114 F.R.D. at 658 (noting that it could be applied "only if [courts] are
willing to stretch, in some instances beyond recognition, the
policy rationale that supports the privilege"); see also Nat'l
Cong. for Puerto Rican Rights ex rel. Perez v. City of New York,
194 F.R.D. at 95 (noting that the privilege, properly limited to
policy communications, would "offer no protection at all to most
of the information police departments would routinely generate")
(internal citations omitted). Furthermore, courts have held that
the deliberative process privilege should not be applied to
preclude disclosure of documents concerning internal affairs
investigations in civil rights suits against law enforcement
agencies. See Nat'l Cong. for Puerto Rican Rights ex rel.
Perez v. City of New York, 194 F.R.D. at 95 (stating that the
"deliberative process privilege is inapplicable [to internal
police disciplinary records containing accounts of the officers
in question and other officer witnesses] because it does not
protect personnel decisions by law enforcement agencies"); Soto
v. City of Concord, 162 F.R.D. 603, 612-13 (N.D. Ca. 1995)
(finding that documents concerning internal investigation of
police officers' conduct "would be routinely generated by" the police department, and therefore were not
protected by the deliberative process privilege); Mercy v.
County of Suffolk, 93 F.R.D. 520, 521-22 (E.D.N.Y. 1982)
(rejecting claim of privilege as to internal affairs report
regarding police officers' involvement in alleged assault of
plaintiffs). See also Morissey v. City of New York,
171 F.R.D. 85, 89 (S.D.N.Y. 1997) (noting that decisions by law
enforcement agencies regarding internal disciplinary matters "are
simply not the type of important public policies whose creation
the privilege was designed to protect") (citing Kelly v. City of
San Jose, 114 F.R.D. at 657).
Indeed, some courts have held that where there are allegations
of misconduct by the government or by its officials, the
privilege should not apply at all. See Alexander v. Federal
Bureau of Investigation, 186 F.R.D. 154, 163 (D.D.C. 1999)
(noting that "the deliberate process privilege disappears
altogether when there is any reason to believe government
misconduct occurred") (internal citations omitted); Skibo v.
City of New York, 109 F.R.D. 58, 61 (S.D.N.Y. 1985) (ordering
disclosure of internal affairs manual and evaluations in a civil
rights action, finding that "[m]isconduct by individual officers,
incompetent internal investigations, or questionable supervisory
practices must be exposed if they exist"). As the court in
Alexander v. Federal Bureau of Investigation explained,
"[t]hese pronouncements of the law make perfect sense because, in
terms of a balancing test, the public value of protecting
identifiable government misconduct is negligible. . . . Thus, if
there is `any reason' to believe the information sought may shed
light on government misconduct, public policy . . . demands that
the misconduct not be shielded merely because it happens to be
predecisional and deliberative." 186 F.R.D. at 164 (citing In re
Sealed Case, 121 F.3d 729, 738 (D.C. Cir. 1997)).
These same concerns apply to the investigation by the OIG into
the potential misconduct of the BOP employees in this case. Like the internal affairs division of
a police department, the OIG is charged with investigating
allegations of wrongdoing committed by federal officers and
employees. There is no relevant distinction between the OIG's
investigation here and internal investigations by local law
enforcement agencies. Apart from generally asserting that these
documents "were prepared in order to assist the agency
decision-maker . . . in reaching a decision," and stating that
the documents "reflect advisory opinions, recommendations, and
deliberations comprising part of a process by which government
decisions and policies are formulated" (Declaration of Harley G.
Lappin, dated June 2, 2004 ("Lappin Dec."), ¶ 4), defendants have
not identified any important public policies addressed in these
documents that would justify the application of the privilege in
this case. See Morrissey v. City of New York, 171 F.R.D. at
89. See also Grand Cent. P'ship Inc. v. Cuomo, 166 F.3d at
482 (stating that "the privilege does not protect a document
which is merely peripheral to actual policy formation; the record
must bear on the formulation or exercise of policy-oriented
judgment") (internal citations omitted). Although in this case,
the document contains recommendations as to disciplinary action
to be taken against certain employees, agencies' personnel
decisions are not the type of important governmental policy to
which the privilege applies. Nat'l Cong. for Puerto Rican Rights
ex. rel. Perez v. City of New York, 194 F.R.D. at 95.
Even if the Court were to find that the information contained
in the Appendix was subject to the privilege, application of the
balancing test would dictate disclosure. Here, the information
contained in the Appendix includes not only the identity of
potential defendants in this case, but witness statements and
other evidence which is highly relevant to the plaintiffs' civil
rights claims. The litigation, which alleges widespread abuse by
prison officials at the MDC directed at a specific class of
individuals based on their national origin, is clearly not a "frivolous"
litigation, but instead is of a highly "serious" nature,
asserting misconduct by government officials and directly
challenging the policies and practices of the government itself.
As to the availability of this information from other sources,
defendants have not identified any other specific source of
evidence that would provide the information contained in the
Appendix. While defendants have produced other documents
containing names and images of correctional officers, it does not
appear that these other documents contain allegations of relevant
conduct against specific officers. In addition, many potential
members of the plaintiff class, because they have already been
deported by the government, are not readily available for
consultation. While videotapes of certain conduct have been
provided, it may not be possible for plaintiffs' counsel to
identify from these tapes the names of the BOP officials involved
or the identities of others who may have been present and
witnessed certain incidents.
Finally, the impact on government employees who may fear
disclosure of their statements has been found by courts to be of
limited concern in cases involving law enforcement officers.
King v. Conde, 121 F.R.D. 180, 192-93 (E.D.N.Y. 1988). In fact,
the possibility of future disclosure to civil rights plaintiffs
and the knowledge that their statements will encounter public
scrutiny may in fact encourage government employees to be more
forthcoming during internal investigations. Id. Moreover, the
importance of this information to the plaintiffs' case and the
public's interest in full disclosure regarding potential
misconduct by government officials far outweighs any concerns
that these employees may have for secrecy.
Here, given the need of the plaintiffs to obtain this
information so that they can amend their complaint in a timely fashion and name all of the potential
defendants in the case prior to the expiration of the statute of
limitations, the Court concludes that the deliberative process
privilege does not protect the Appendix from disclosure. The vast
majority of the information in the Appendix is purely factual,
and is therefore not protected by the privilege. However, the
Appendix also contains some brief recommendations concerning
disciplinary action to be taken against certain officers. While
the applicability of the deliberative process privilege to these
discrete portions of the Appendix is a closer question, this
information is not relevant to the identification of individual
defendants. Therefore, defendants may redact these portions of
the Appendix. Plaintiffs, however, may renew their application
for this information, if they so choose, during the course of
Accordingly, based on an in camera review of the Appendix to
the OIG investigative report, this Court finds that the
information contained in the Appendix is not covered by the
deliberative process privilege.
B. Law Enforcement Privilege
Defendants also claim that the law enforcement privilege should
apply to all of the documents in question. The stated purpose of
the law enforcement privilege is "to prevent disclosure of law
enforcement techniques and procedures, to preserve the
confidentiality of sources, to protect witness and law
enforcement personnel, to safeguard the privacy of individuals
involved in an investigation, and otherwise to prevent
interference with an investigation." In re Department of
Investigation of the City of New York v. Myerson, 856 F.2d 481,
484 (2d Cir. 1988). However, "[w]hen the government invokes the
law enforcement . . . privilege, the court must balance the
public interest in nondisclosure against the need of the particular litigant for
access to the privileged information." Raphael v.
Aetna Cas. & Sur. Co., 744 F. Supp. 71, 74-75
(S.D.N.Y. 1990). The court in Morrissey v. City of
New York stated that:
The factors disfavoring disclosure are the threat to
the safety of police officers, the invasion of the
privacy of the police officers, the weakening of law
enforcement programs or procedures, the chilling of
police investigative candor, the chilling of citizen
complainant candor and state privacy law. The factors
favoring disclosure are the relevance of the material
to the plaintiff's case, the importance of the
material to the plaintiff's case, the strength of the
plaintiff's case, and the importance to the public
interest in releasing the information.
171 F.R.D. at 92 (citing King v. Conde, 121 F.R.D. at
Thus, the law enforcement privilege, like the
deliberative process privilege, is a qualified, rather than
absolute, privilege. See Raphael v. Aetna Cas. & Sur. Co.,
744 F. Supp. at 74.
The documents at issue fall into several categories: Documents
2-8 are summaries of interviews of various BOP staff members, describing their own actions, their
observations of the actions of other staff members, and their
observations regarding various inmates. Document 9 is a summary
of a telephonic interview with plaintiff Hany Ibrahim. Document
10 appears to be a transcript of at least some of the videotapes,
which includes not only a description of what was said by the
individuals viewed on the tapes, but also comments regarding the
observations of the individual who prepared the transcript as to
what he or she observed occurring on the tapes. Documents 11-13
appear to be interviews with two inmates who are among the named
plaintiffs in this action. Document 14 is a summary of the
results of photographic lineups conducted with certain named
plaintiffs as well as with other detainees, and documents 15-20
are copies of the actual photospreads reviewed by two of the
named plaintiffs. Document 21 consists of several pages from a
computer database containing information regarding complaints
against several corrections officers lodged by various detainees,
including one of the named plaintiffs.
In arguing against disclosure of these items, the government
cites concern for witness confidentiality, the need to protect
law enforcement techniques, and the concern that disclosure might
alert the subjects of the investigation to the fact that they are
under investigation. In addition, as the court in King v. Conde
noted, a "pointed menace to police effectiveness may arise if the
civil rights plaintiff seeking internal police files is
simultaneously (or reasonably likely to be in the future) the
defendant in a criminal proceeding following from the incident in
question." 121 F.R.D. at 192. In this case, plaintiffs are not
actual or potential defendants in an ongoing criminal
matter,*fn4 and thus, disclosure will not "weak[en] law enforcement programs or procedures,"
Morrissey v. City of New York, 171 F.R.D. at 90-91, such as a
future criminal trial. Thus, this consideration weighs in favor
Defendants further assert that disclosure may reveal witness
identities and the identities of preliminary targets of an
ongoing investigation at the BOP. However, the argument is
weakened by the statement of Director Lappin, that the "OIG has
completed its investigation of allegations made by plaintiffs in
this case and has referred the matter to the BOP for
administrative action." (Lappin Dec. ¶ 6). Although Director
Lappin subsequently states that "this matter is currently under
investigation by BOP's Office of Internal Affairs," id., Lappin
admits that the "subjects may be aware that an investigation is
pending." (Id. ¶ 10).*fn5 Furthermore, several of the BOP
officers interviewed are no longer employed by the BOP and are
not likely to be still subject to disciplinary action. Thus,
defendants' claim of privilege on this basis is not
persuasive.*fn6 Furthermore, although defendants claim that the disclosure of
documents would reveal the identities of witnesses to incidents
at the MDC, it should first be noted that it is "presumably the
obligation" of government employees to "cooperate in incident
investigations." Burka v. New York City Transit Auth.,
110 F.R.D. at 664. Thus, to the extent that the documents contain
interviews of staff personnel, the question of privacy is far
outweighed by the need for the information. Moreover, to the
extent that defendants raise a concern about the willingness of
staff members to come forward and be truthful in this and in
future investigations, the court in Mercy v. County of Suffolk
rejected that argument, noting: "If defendants are saying that
police officers are more likely to be untruthful if they know
potential plaintiffs might receive their reports than they
ordinarily are when they are faced with possible departmental
disciplinary action, the court does accept their argument."
93 F.R.D. at 522. The court further noted that disclosure of the
records of an internal disciplinary investigation can only
further the policy of encouraging self-evaluation and remedial
These investigations are conducted, at taxpayer
expense, to determine whether the procedures of the
department or individual police officers were
responsible for the complained-of incident, and
whether disciplinary or other remedial action is
necessary to prevent the recurrence of similar
incidents. No legitimate purpose is served by
conducting the investigations under a veil of
near-total secrecy. Rather, knowledge that a limited
number of persons, as well as a state or federal
court, may examine the file in the event of civil
litigation may serve to insure that these
investigations are carried out in an evenhanded
fashion, that the statements are carefully and
accurately taken, and that the true facts come to light, whether they
reflect favorably or unfavorably on the individual
police officers involved or on the department as a
Id. In this case, where there are allegations of widespread,
systemic abuse of federal prisoners based upon their race and
national origin, the need to ensure that these allegations are
properly investigated is paramount. Indeed, if such abuse has
occurred, the public interest in ensuring that corrective action
is taken to prevent such abuse in the future and to discipline
those responsible for such abuse far outweighs any concern that
the government may have that disclosure will chill potential
witnesses and thwart the interdepartmental investigation.
Finally, there has been no showing that the BOP officers who
were witness to the events documented in the investigation made
their statements "with the clear understanding that their
identity not be disclosed," Cullen v. Margiotta, 811 F.2d 698,
714 (2d Cir. 1987), overruled on other grounds, Agency Holding
Corp. v. Malley-Duff & Assocs., 483 U.S. 1021 (1987), a factor
often found to be dispositive in deciding whether to disclose
documents that identify witnesses or sources. See id.; Cruz
v. Kennedy, 1998 WL 689946, at *5 (citing cases); Burke v. New
York City Police Dept., 115 F.R.D. 220, 227 (S.D.N.Y. 1987).
Thus, defendants' conclusory claims that disclosure of the
identities of BOP officers who witnessed the events will thwart
these types of investigations should be entitled to little weight
in the balancing test.
However, to the extent that the documents identify inmate
witnesses other than the named plaintiffs, those individuals do
have an interest in keeping their identities confidential. Since
the request for information is currently limited to that
necessary to identify potential defendants, the non-government witnesses' statements should be provided but with the witnesses'
Defendants also claim that the documents should be withheld
because they disclose law enforcement techniques and
investigators' thought processes and tactics in questioning
witnesses. However, "across the board claims of law enforcement
privilege supported only by conclusory statements will not
suffice." Alexander v. Federal Bureau of Investigation,
186 F.R.D. at 167. Defendants' claims are similar to those made by
the police department in Maher v. Monahan, where the defendants
claimed that investigative files would "reveal both investigative
techniques and confidential sources of information." 2000 WL
648166, at *5. The court found this assertion to be "both
entirely speculative and conclusory," stating that it is "thus
entitled to little, if any, weight in the balancing process."
Id.*fn7 Defendants in this case make no showing as to how
disclosure of the documents at issue would reveal special law
enforcement techniques. Here, defendants have failed to identify
any specific "strategy" or "tactics" or law enforcement
intiatives that would be revealed by disclosing these documents.
Other than interviewing staff members and inmates, conducting
photo lineups, and reviewing videotapes, which are standard law
enforcement techniques, there is nothing in these documents that
would merit protection based on the interest in protecting law
Defendants also claim that disclosure may not be fair to
"officers whose reputations may be injured." (Lappin Dec. ¶ 10 at 5). However, "neither state nor
federal law contemplates denial to a litigant of information from
personnel files or other documents if that information is
necessary to the party's preparation of his case, even if the
material may reveal matters that could cause embarrassment or
. . . harm to another party, or even to a non-party." Burke v.
New York City Police Department, 115 F.R.D. at 225. Furthermore,
a protective order is already in place in this action. Thus,
defendants' claim of privilege on this basis should be denied.
In weighing the factors favoring disclosure, such as the
importance of the material to plaintiffs' case, plaintiffs make a
strong argument that the documents should be released. The
importance of certain information to the plaintiff's case "has at
times been viewed as the most important of all factors." King v.
Conde, 121 F.R.D. at 194 (citing cases). The plaintiffs' need to
identify the officers*fn8 who have allegedly violated their
constitutional rights is great considering that their claims
against the officers are subject to a three-year statute of
limitations. Here, the documents directly address the incidents
complained of, and provide witness statements as well as
interviews of the officers and victims themselves. These factors
tip the balance in favor of disclosure of the documents.
Defendants have argued that the victims' recollection of events
and their review of guard photos and videotapes are an adequate
substitute for the OIG report and other investigation records.
This claim is without merit. As the court in Kelly v. City of
San Jose noted, "since information in police files will have been developed closer in time to the subject events,
when witnesses were around and their memories were fresher . . .
it will not be likely that information of comparable quality will
be available from any source." 114 F.R.D. at 667. Here, as noted
above, many of the witnesses and potential class members may have
been deported or released from custody and are no longer
available for consultation, and, even if they were, may not be
able to identify by name those guards who either engaged in or
witnessed the alleged abuse. Thus, since "`the government cannot
show that the information of comparable quality is as efficiently
available from other alternative sources, this factor should
weigh in favor of disclosure.'" King v. Conde, 121 F.R.D. at
195 (quoting Kelly v. City of San Jose, 114 F.R.D. at 667).
In weighing the factors set out by the court in King v.
Conde, the scales tip substantially in favor of disclosure of
the documents to plaintiffs. This is especially so given that
"[d]oubts must be resolved, at the discovery stage, in favor of
the [civil rights] claimant," King v. Conde, 121 F.R.D. at 195
(quoting Kelly v. City of San Jose, 114 F.R.D. at 666, and more
so in light of the "elusiveness of proof on some kinds of civil
rights claims." Kelly v. City of San Jose, 114 F.R.D. at
Accordingly, based on an in camera review of the documents at
issue, the Court orders defendants to produce all of the
documents to plaintiffs.*fn10 Defendants may, however,
redact the names of inmate witnesses, other than the named plaintiffs, appearing
in the documents. Defendants may also redact the disciplinary
recommendations contained in document 1, the Appendix.
Furthermore, to the extent that document 21 contains addresses
and social security numbers for either inmate witnesses or
governmental employees, this information may be redacted as
Finally, this Court notes that it appears that defendants may
have withheld certain documents containing information relevant
to the identification of officers involved in the alleged abuse
of detainees where those documents do not relate specifically to
interactions between officers and the named plaintiffs.*fn12
While this Court is aware that its earlier August 26, 2003 Order
only required the production of documents relating to
interactions between officers and the named plaintiffs, the
statute of limitations will soon expire as to all individuals
potentially culpable for the alleged abuses at the MDC.
Therefore, to the extent that the documents in defendants'
posession identify any government employees potentially
responsible for misconduct involving putative classmembers other
than the named plaintiffs, those documents must be produced to
plaintiffs as well.
Defendants are hereby Ordered to produce the documents by
August 4, 2004, subject to the protective order that is already
in place. SO ORDERED.