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MacNamara v. City of New York

April 20, 2007

DEIRDRE MACNAMARA, DEEPA MAJMUDAR, ELIZABETH FLEISCHMAN, REBECCA STONEBACK, JASON BARRUS, CHRIS KORNICKE, RANDALL STEKETTE, WENDY STEFANELLI, DANIELLE WALSH, WILLIAM HOBBS, JULIA COHEN, SIMON HARAK, SONIA CHANDRA, CELINE MELANUM, ERIKA BIDDLE, DIANA RAIMONDI, RACHEL HEINOLD, NOAH CHARNEY, STACY COTLER, BARBARA AND LEONARD FRIEDMAN, AS PARENTS AND: NATURAL GUARDIANS OF EMILY FRIEDMAN, A MINOR, ALI GHAHREMANI, AS PARENT AND NATURAL GUARDIAN OF SHAHRZAD GHAHREMANI, WILLIAM STEYERT, JR., CHRISTOPHER THOMAS, KATE ESPOSITO, INDIVIDUALLY, AND ON BEHALF OF A CLASS OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
THE CITY OF NEW YORK, A MUNICIPAL ENTITY; MICHAEL BLOOMBERG, MAYOR OF THE CITY OF NEW YORK; RAYMOND KELLY, NEW YORK CITY POLICE COMMISSIONER; JOSEPH ESPOSITO, CHIEF OF DEPARTMENT, NEW YORK CITY POLICE DEPARTMENT; THOMAS GRAHAM, COMMANDER, DISORDERS CONTROL UNIT,: NEW YORK CITY POLICE DEPARTMENT; BRUCE SMOLKA, ASSISTANT CHIEF, PATROL BOROUGH MANHATTAN SOUTH; TERRENCE MONAHAN, DEPUTY CHIEF, PATROL BOROUGH BRONX; JOHN J. COLGAN, DEPUTY CHIEF AND COMMANDING OFFICER, PIER 57; NEW YORK POLICE SUPERVISOR MICHAEL INGRAM; NEW YORK POLICE SUPERVISOR ROMAN; NEW YORK CITY POLICE OFFICERS MONA PHILLIPS, NELSON RODRIGUEZ, SHIELD NO. 21015, MICHAEL FILOSETA, KEVIN SAM, STEVEN CHOINSKI, TYRONE RIGGAN, DAN MALLOY, BOYLE, DIEZ, SHIELD NO. 4285, MICHAEL BALICKI, ANTHONY MASON, BAITY AND MELISSA ROMAN; NEW YORK CITY POLICE SUPERVISORS AND COMMANDERS RICHARD ROES 1-50; NEW YORK CITY POLICE OFFICERS JOHN : DOES 1-50, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES, JOINTLY AND SEVERALLY, DEFENDANTS.



The opinion of the court was delivered by: James C. Francis IV United States Magistrate Judge

MEMORANDUM AND ORDER

This case is one of many cases arising from the arrests of approximately 1,800 people during the Republican National Convention (the "RNC") in New York City in the summer of 2004. Throughout the litigation, the City of New York and the individual defendants (collectively, the "City") have withheld or redacted a number of documents requested by the plaintiffs on the basis of various privileges. On March 14, 2007, I granted in part and denied in part the plaintiffs' motion to compel production of documents that the City claimed were subject to the self-critical analysis privilege, the attorney-client privilege, and the deliberative process privilege. MacNamara v. City of New York, No. 04 Civ. 9216, 2007 WL 755401 (S.D.N.Y. March 14, 2007). The plaintiffs now seek an order compelling the City to produce in unredacted form additional documents that the City has withheld on the basis of the deliberative process privilege and the law enforcement privilege. In addition, the plaintiffs seek an order reopening depositions at which the City instructed witnesses not to answer questions regarding the presence of undercover or plainclothes officers at demonstrations. For the reasons set forth below, the plaintiffs' motion is granted in part and denied in part.*fn1 Discussion

A. Deliberative Process Privilege

1. Legal Standard

The deliberative process privilege "'covers documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated' . . . ." Tigue v. United States Department of Justice, 312 F.3d 70, 76 (2d Cir. 2002) (quoting Department of the Interior v. Klamath Water Users Protective Association, 532 U.S. 1, 8 (2001)). The privilege protects "subjective documents which reflect the personal opinions of the writer rather than the policy of the agency." Grand Central Partnership v. Cuomo, 166 F.3d 473, 482 (2d Cir. 1999) (quoting Ethyl Corp. v. United States Environmental Protection Agency, 25 F.3d 1241, 1248 (4th Cir. 1994)).

The rationale behind the privilege is "the obvious realization that officials will not communicate candidly amongst themselves if each remark is a potential item of discovery and front page news, and its object is to enhance the quality of agency decisions, by protecting open and frank discussion among those who make them within the Government." Klamath, 532 U.S. at 8-9 (quoting National Labor Relations Board v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975)); accord Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980) ("The [deliberative process] privilege has a number of purposes: it serves to assure that subordinates within an agency will feel free to provide the decisionmaker with their uninhibited opinions and recommendations without fear of later being subject to public ridicule or criticism; to protect against premature disclosure of proposed policies before they have been finally formulated or adopted; and to protect against confusing the issues and misleading the public by dissemination of documents suggesting reasons and rationales for a course of action which were not in fact the ultimate reason for the agency's action.").

Tigue, 312 F.3d at 76.

The privilege applies to inter-agency or intra-agency communications that are both "predecisional" and "deliberative." Tigue, 312 F.3d at 76. A document is "predecisional" when it is "prepared in order to assist a decisionmaker in arriving at his decision." National Council of La Raza v. Department of Justice, 411 F.3d 350, 356 (2d Cir. 2005) (quoting Grand Central Partnership, 166 F.3d at 482). In order to assert the privilege, the agency "must be able to demonstrate that . . . the document for which . . . privilege is claimed related to a specific decision facing the agency." Tigue, 312 F.3d at 80. This is to be distinguished from an agency's "routine and ongoing process of self-evaluation," which is not covered. See id. at 80 (quoting Maricopa Audobon Society v. United States Forest Service, 108 F.3d 1089, 1094 (9th Cir. 1997)).

Haus v. City of New York, No. 03 Civ. 4915, 2004 WL 3019762, at *3 (S.D.N.Y. Dec. 29, 2004). A document is "deliberative" when it is "actually . . . related to the process by which policies are formulated." La Raza, 411 F.3d at 356 (quoting Grand Central Partnership, 166 F.3d at 482). 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." Tigue, 312 F.3d at 80 (quoting Grand Central Partnership, 166 F.3d at 482).

"Purely factual" material is not protected by the privilege. Grand Central Partnership, 166 F.2d at 482; see also National Congress for Puerto Rican Rights v. City of New York, 194 F.R.D. 88, 93 (S.D.N.Y. 2000); Resolution Trust Corp. v. Diamond, 137 F.R.D. 634, 640-41 (S.D.N.Y. 1991). Furthermore, the privilege is a qualified one, requiring courts to balance the agency's interest in non-disclosure against "the public interest in opening for scrutiny the government's decision-making process." Resolution Trust Corp., 137 F.R.D. at 642 (quoting In Re Franklin National Bank Securities Litigation, 478 F. Supp. 577, 582 (E.D.N.Y. 1979)).

2. Civil Disturbance Subcommittee Documents

The New York City Police Department (the "NYPD") began planning for the RNC more than a year before the convention. (Declaration of Raymond W. Kelly dated Feb. 23, 2007 ("Kelly Decl."), attached to Letter of Cheryl L. Shammas dated Feb. 23, 2007 ("Shammas 2/23/07 Letter"), ¶ 2). To facilitate planning, the work was divided among several committees, each of which assigned tasks to various subcommittees. (Kelly Decl., ¶ 2). The committees were overseen by Assistant Chief Jack McManus, the NYPD's RNC Coordinator. (Kelly Decl., ¶ 2). The NYPD Executive Committee held weekly meetings at which Assistant Chief McManus, Police Commissioner Raymond W. Kelly, and various other high-ranking NYPD officials discussed the merits of the committees' recommendations. (Kelly Decl, ¶¶ 3-4).

One of the committees involved in RNC planning was the Civil Disturbance/Prisoner Processing Subcommittee (the "Civil Disturbance Subcommittee"), which included representatives from the NYPD, the United States Secret Service, and various other city, state, and federal agencies. (Kelly Decl., ¶¶ 5-6). The City has withheld agendas for Civil Disturbance Subcommittee meetings held on January 13, May 5, and July 21, 2004, as well as memoranda describing what was discussed at each meeting. The meeting agendas contain lists of new members, lists of attendees at previous meetings, and brief summaries of issues discussed at previous meetings. The memoranda, written by various NYPD officials for the benefit of Assistant Chief McManus, consist of brief descriptions of issues and plans discussed at the meetings. Having reviewed these documents in camera, I find that they do not fall within the scope of the deliberative process privilege.

As an initial matter, lists of committee members and persons in attendance at meetings are plainly factual information not subject to the privilege. Moreover, while it is true in some sense that the documents "reflect deliberations and discussions" about plans for the RNC (Shammas 2/23/07 Letter at 4), that bare assertion is, as I have said before, insufficient to justify application of the privilege. See Schiller v. City of New York, No. 04 Civ. 7922, 2007 WL 136149, at *9-10 (S.D.N.Y. Jan. 19, 2007) (rejecting claim of privilege based upon assertion that document "reflect[ed] internal discussions among top NYPD executives, recommendations and proposals for policing the RNC"). The summaries contained in the meeting agendas merely state that certain issues were discussed. They are descriptive rather than deliberative, and do not contain the personal opinions of any member of the committee or even the recommendations of the committee as a whole. The memoranda, which are essentially minutes of the meetings, similarly do not contain the recommendations or opinions of the writers or of any other members of the committee, but merely describe the issues discussed.

The City attempts to bolster its assertion of the privilege with an affidavit from Commissioner Kelly in which he states that the Executive Committee "at its [] weekly meetings, assessed the merits of [] proposals [put forward by the various RNC committees] while engaging in discussions and deliberations on various planning tasks and operational issues that needed to be addressed." (Kelly Decl., ¶ 3). While this statements is undoubtedly true, it does not establish that the particular documents at issue here were created "in order to assist an agency decisionmaker in arriving at" a particular decision. La Raza, 411 F.3d at 356 (quoting Grand Central Partnership, 166 F.3d at 482). Instead, the documents describe reports from various agencies and committees regarding the current state of plans for the RNC. The deliberative process privilege "does not operate indiscriminately to shield all decision-making by public officials" from discovery in civil cases. Grossman v. Schwartz, 125 F.R.D. 376, 381 (S.D.N.Y. 1989) (citation omitted). These memoranda are not "contemplative, deliberative, analytical documents, weighing the pros and cons of a given course of action." Associated Press v. United States Department of Defense, No. 05 Civ. 5468, 2006 WL 2707395, at *8 (S.D.N.Y. Sept. 20, 2006). They cannot be considered "deliberative" because they are not "indicative of the agency's thought processes," Local 3, International Brotherhood of Electrical Workers v. National Labor Relations Board, 845 F.2d 1177, 1180 (2d Cir. 1988), and do not reflect "the give-and-take of the consultative process." Coastal States Gas Corp., 617 F.2d at 866. Accordingly, they are not subject to the privilege and must be disclosed.

3. Criminal Justice Bureau Documents

The NYPD Criminal Justice Bureau (the "CJB") was responsible for developing plans for arrest processing during the convention. (Kelly Decl., ΒΆ 2). The City has withheld the following CJB- related documents: (1) a February 19, 2004 memorandum from Deputy Inspector Matthew Pontillo of the CJB to Assistant Chief McManus; (2) a PowerPoint presentation dated April 1, 2004 entitled "Arrest Processing Plan for the Republican National Convention"; (3) a document containing hand-drawn and computer-generated flow charts illustrating the Mass Arrest Processing Plan (the "MAPP") for ...


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