The opinion of the court was delivered by: Alvin K. Hellerstein, U.S.D.J.
ORDER AND OPINION GRANTING MOTIONS TO QUASH SUBPOENAS OF FDNY AND NYPD PENSION FUND MEDICAL BOARD DOCTORS
On September 24, 2009, the City of New York ("City") moved to quash subpoenas issued to FDNY Pension Fund Medical Board doctors and on October 7, 2009, it moved to quash subpoenas issued to NYPD Pension Fund Medical Board doctors.
Because I find that testimony and documentation regarding the thought processes and deliberations of both Medical Boards are protected by the deliberative process and mental processes privileges, I grant the City's motions.
The FDNY and NYPD Pension Funds are statutory creatures independent from the FDNY and NYPD. Title 13 of the New York City Administrative Code establishes the Funds and the rules governing their operation. N.Y.C. Admin. Code Title 13, Chapters 1-2. The Funds "have the powers and privileges of a corporation," and are each governed by a separate Board of Trustees. Id. §§ 13-216(a), 12-220, 13-316(a), 13-220, 13-320. The regulations governing the Funds create Medical Boards tasked with determining eligibility for medical disability retirement. Id. §§ 13-223(a)(1), 13-323. The Boards consist of three doctors. Id. The Board of Trustees, the Commissioner of Health, and the Commissioner of Citywide Administrative Services each appoint one doctor to the Board. The doctors are independent contractors, not employees of the NYPD or FDNY.
When a firefighter or police officers submits an application for a disability pension, the Medical Board reviews the applicant's medical records and discusses eligibility with reference to the statutory guidelines. Several statutory presumptions apply to the Board's determination of eligibility. For example, under the "World Trade Center Presumption," any Fund member who "participated in World Trade Center rescue, recovery or cleanup operations" and is diagnosed with "a qualifying World Trade Center condition, as defined in section two of the retirement and social security law," is entitled to a presumption "that such disability was incurred in the performance and discharge of duty as the natural and proximate result of an accident not caused by such member's own willful negligence." Id. §§ 13-252.1 and 13-353.1. The statutes also create a variety of other presumptions. See, e.g., N.Y. Gen. Mun. Law § 207-kk (creating presumption for firefighters that certain cancers were incurred in course of duty); Id. § 207-q and N.Y.C. Admin. Code § 13-354 (creating presumption for firefighters that lung injuries resulted from accidents in course of duty); N.Y. Gen. Mun. Law § 207-k (creating presumption that disabilities resulting from heart disease or stroke were incurred in course of duty). After the Board makes its recommendation, the Board of Trustees makes the ultimate determination of eligibility.
Plaintiff Hauber, an FDNY firefighter, and Plaintiffs Casey and Malkoff, NYPD officers, received disability pensions after the Medical Boards recommended their eligibility. On February 16, 2006, the FDNY Pension Fund Medical Board, after reviewing Plaintiff Hauber's medical records and applying the presumption under the Cancer Bill, determined that he was disabled due to esophageal cancer and was eligible for accidental disability retirement. Carboy Certification, Ex. 3. On January 26, 2007, the NYPD Pension Fund Medical Board recommended approval of Officer Casey's application for accidental disability retirement, pursuant to the World Trade Center Disability Law, based on its review of his medical records and complaints regarding his diagnosis of reactive airway disease and chronic sinusitis. Gleason Aff. Ex. B. On April 14, 2004, the NYPD Pension Fund Medical Board rescinded an earlier decision denying Officer Malkoff's application for disability retirement. In light of new medical reports regarding his condition, the Board recommended approval of his application for a disability pension based on the diagnosis of probable reactive airway disease. Id. Ex. C.
In August 2009, Plaintiffs served subpoenas on the City of New York seeking to depose the Medical Board doctors that considered Plaintiffs' applications and obtain documents regarding their decision-making process. The City moved to quash the subpoenas on the grounds that the Board's testimony and documents regarding its decision-making process are irrelevant and protected by the deliberative process and mental processes privileges.
Motions to quash subpoenas are "entrusted to the sound discretion of the district court." In re Fitch, Inc. v. UBS PaineWebber, Inc., 330 F.3d 104, 108 (2d. Cir. 2003) (internal quotation marks omitted). Under Rule 26(b)(1) of the Federal Rules of Civil Procedure, the scope of discovery is limited to "any non-privileged matter that is relevant to any party's claim or defense," or, "[f]or good cause, . . . to the subject matter involved in the action." Rule 26(c)(1) permits the court to forbid disclosure or discovery on a showing of good cause and Rule 45(c)(3) provides that the court should quash a subpoena, upon a party's motion, when it "creates an undue burden" or "requires disclosure of privileged" information.
The City argues that the testimony and documentation Plaintiffs seek are protected by the deliberative process privilege.*fn1 The deliberative process privilege derives from the common law, and is codified as well as exceptions to the Federal Freedom of Information Act ("FOIA"), and to New York State's Freedom of Information Law ("FOIL"). 5 U.S.C. § 552(b)(5); N.Y. Public Officers Law § 87. New York courts, in addressing the privilege, often rely on federal case law, because FOIL's exception was modeled on the federal statute. In re Tuck-It-Away Assocs., L.P. v. Empire State Dev., 861 N.Y.S.2d 51, 57 (App. Div. 2008). The privilege is most often litigated in cases involving the freedom of information statutes. See MacNamara v. City of New York, 249 F.R.D. 70, 77 n.6 (S.D.N.Y. 2008). "Thus, in addressing the privilege, district courts in this Circuit and elsewhere frequently rely on authority applying the privilege in both FOIA and non-FOIA actions." Id.
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. U.S. Dept. of Justice, 312 F.3d 70, 76 (2d Cir. 2002) (quoting Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8 (2001). It "is designed to promote the quality of agency decisions by preserving and encouraging candid discussion between officials . . . [and] is based on 'the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news.'" Nat'l Council of La Raza v. Dep't of Justice, 411 F.3d 350, 356 (2d Cir. 2005) (quoting Klamath, 532 U.S. at 8-9); See also In re Tuck-It-Away Assocs., L.P., 861 N.Y.S.2d at 57-58 ("[T]he deliberative process privilege's object is to enhance the quality of agency decisions, by protecting open and frank discussion among those who make them within the Government." (internal quotation marks omitted)).
Together with promoting frank discussion, the privilege protects the integrity of the administrative process. In United States v. Morgan, one of the leading cases concerning the privilege, the Supreme Court denied the defendant's request to depose the Secretary of Agriculture regarding the process by which he arrived at a decision setting maximum rates charged by market agencies. 313 U.S. 409 (1941). In denying defendant's request to depose, the Court noted that the administrative process involving the Secretary resembled a judicial proceeding. It stated that
[j]ust as a judge cannot be subjected to such a scrutiny, . . . so the integrity of the administrative process must be equally respected. . . . [A]lthough the administrative process has had a different development and pursues somewhat different ways from those of courts, they are to be deemed collaborative instrumentalities of justice and the appropriate independence of each should be respected by the other.
For the deliberative process privilege to apply, the information must be inter- or intra-agency, pre-decisional, and deliberative. Tigue, 312 F.3d at 76-77. A document is pre-decisional "when it is prepared in order to assist an agency decision-maker arriving at his decision." Id. at 78. In determining whether a document is pre-decisional, courts consider whether the party asserting the privilege can "pinpoint the specific decision . . . to which the document correlates," and "verify that the document precedes, in temporal sequence, the decision to which it relates." Grand Cent. Partnership, Inc. v. Cuomo, 166 F.3d 473, 482 ...