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TURKMEN v. ASHCROFT

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,
v.
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

ORDER

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. Cir. 1975).

  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 ...


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