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United States District Court, S.D. New York

October 14, 2004.


The opinion of the court was delivered by: LEWIS KAPLAN, District Judge


In an opinion dated September 24, 2004,*fn1 familiarity with which is assumed, the Court (1) granted in part and denied in part defendant's motion for summary judgment dismissing the complaint, (2) granted summary judgment to plaintiffs and directed defendant to produce document 28, an April 2002 opinion of the Office of Legal Counsel ("OLC"), and (3) directed defendant to submit documents 23-25 for in camera inspection. Defendant subsequently moved for reconsideration with respect to document 28 and for a stay pending its further consideration of appeal and offered to produce document 28 for in camera inspection. Earlier this week, the Court stayed the defendant's obligation to produce document 28 to and including October 24, 2004, directed submission of document 28 for in camera inspection, and stated that it would determine whether any further stay would be granted when it ruled on the motion for reconsideration. The defendant having submitted documents 23-25 and 28 for in camera inspection, these matters all now are ripe for determination.

  Documents 23-25

  The defendant previously produced to plaintiffs redacted versions of documents 23 and 24. The issue is whether it is obliged to produce the excluded portions, which the Court now has reviewed.

  The documents in question, as defendant already has acknowledged, are e-mails by Department of Justice employees concerning whether the April 2002 OLC opinion was going to be made public.*fn2 The redacted portions of these two documents are not protected by the deliberative process privilege because they are neither "predecisional," as that term is used in the FOIA case law, nor deliberative. "A document is predecisional when it is prepared in order to assist an agency decisionmaker in arriving at his [or her] decision. . . . [T]he [deliberative process] 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."*fn3

  Document 25 is another matter. It is an e-mail that reflects discussion of substantive legal and administrative issues among Department attorneys who appear to have been in a position to offer advice on these issues. It is both predecisional and deliberative. It qualifies for FOIA Exemption 5.

  The Motion for Reconsideration as to the OLC Opinion

  The defendant seeks reconsideration with respect to the April 2002 OLC opinion. The basis for its request, however, is not entirely clear. At a minimum, it argues that the Court overlooked the fact that the OLC opinion is broader that the Attorney General's announced policy of enlisting state and local police in arresting certain illegal aliens, as evidenced by examination of the opinion itself. It may be contending also that the Court mistakenly overlooked a material distinction between the policy and the OLC's stated legal rationale underlying the policy.

  As the defendant acknowledges, S.D.N.Y. Civil Rule 6.3 contemplates reconsideration of motion decisions "where the movant demonstrates that the Court has overlooked controlling decisions or factual matters that were put before it on the underlying motion . . . and which, had they been considered, might have reasonably altered the result before the court."*fn4 Defendant did not submit the OLC opinion for in camera inspection in litigating the summary judgment motion. Nor did its description of the document give any hint that the scope of the opinion was broader than the announced policy. As these contentions were not put before the Court on the underlying motion, strict application of Rule 6.3 would require denial of the motion for reconsideration. Nevertheless, the deliberative process privilege, and FOIA Exemption 5, serve important public interests. In light of those interests, the Court has reconsidered its ruling with respect to the OLC opinion in light of its subsequent in camera inspection of the document.

  The vast majority of the OLC opinion is an analysis supporting the legal conclusions that the Attorney General and his subordinates have already publicized and incorporated into policy, all as described in the prior opinion. To that extent, the Court adheres to its previous determination. The document contains also, however, an introductory section that reveals the process of policy formulation within the Department as well as a section analyzing an issue to which the Department has not referred in any public statements brought to the Court's attention. The deliberative process privilege, and thus Exemption 5, apply to these portions of the documents, which therefore may be redacted in the copy that must be produced.

  To the extent that the defendant argues that the Court overlooked a material distinction between the policy and the OLC's legal rationale, the argument is without merit. The prior opinion dealt explicitly with that point.

  Further Stay

  The defendant seeks a stay pending its decision whether to appeal and, if it does appeal, pending determination of the appeal.

  In deciding whether to issue a stay pending appeal, the Court must consider (1) the likelihood that the party seeking the stay will prevail on the merits of the appeal, (2) the likelihood that the moving party will be harmed irreparably absent a stay, (3) the prospect that others will be harmed if the court grants the stay, and (4) the public interest.*fn5

  The Court begins with consideration of the respective threats of harm and the public interest. The Department (and by extension the public) would be injured irreparably if the Department were obliged to disclose the OLC opinion and it later were determined that the privilege had not been waived — the advice that OLC gave to the Attorney General on this subject would have become public and agency personnel might be chilled in expressing themselves frankly in the future. On the other hand, the public interest in access to information concerning government policies — particularly in a matter as sensitive as the interplay between local law enforcement and immigration — is quite substantial. The public, in the Court's view, has a right to know this information. Indeed, it has had that right since April 2002 and thus through a substantial period during which the Department steadfastly has resisted disclosure. In the last analysis, the question is whether the harm to the public's right to know that would be caused by further delay in disclosure of the OLC opinion, if a stay were granted improvidently, outweighs, or is outweighed by, the harm to the Department's (and the public's) interest in the frank exchange of views in the formulation of agency policy that would occur if a stayed were denied improvidently. Viewed in this light, the Court does not regard the balance of the equities and the public interest as favoring either side in any material respect. The balance is a close one.

  In considering the Department's likelihood of success on appeal, humility and common sense dictate acknowledgment of the possibility of error. Nevertheless, the Court does not regard the Department's chances of success on appeal as sufficiently strong to warrant a stay given the balance of the equities and the public interest referred to above. Fairness suggests, however, that defendant be given adequate time to decide whether to take an appeal and to apply to the Court of Appeals for a stay pending appeal if defendant is so advised.


  For the foregoing reasons, the defendant's motion for reconsideration is granted to the extent indicated above. On reconsideration, the Court adheres to its original decision in all respects save that:

  1. Defendant shall produce to plaintiffs, on or before October 19, 2004, the portions of documents 23 and 24 that the Department previously had marked as exempt, and those portions of document 28 marked "disclose" on copies of that document that will be furnished to counsel for the defendant and filed under seal.

  2. Defendant's motion for summary judgment dismissing the complaint is granted also insofar as plaintiffs seek production of document 25.

  3. Defendant's motion for a stay is granted to the extent that defendant's obligation to produce document 28, as redacted, is stayed until 4:30 p.m. on October 24, 2004. The unredacted copies of documents 23-25 and 28 will be filed under seal.


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