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 ...