The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court
On March 31, 2009, Plaintiffs commenced this action challenging the legality of a gambling casino operated by the Seneca Nation of Indians ("SNI") on land it acquired in 2005, in the City of Buffalo (the "Buffalo Parcel").
Currently before the Court is Plaintiffs' Motion for an Order to Enforce, to Expand the Administrative Record and for Discovery. (Docket No. 45.) The motion is fully briefed, and the Court has determined that oral argument is not necessary. For the reasons discussed below, Plaintiffs' Motion is granted in part, and denied in part.
The facts and legal principles underlying this action have been thoroughly discussed in this and prior related cases. Familiarity with the relevant cases and decisions is presumed, and this decision will set out only those facts pertinent to the pending motion.
This is the third lawsuit commenced by largely the same plaintiffs, who seek to bar the SNI from operating a gambling facility in Buffalo, New York.*fn2 Each lawsuit has alleged that the SNI's gambling operation on the Buffalo Parcel is unlawful because the land is not "Indian lands," as that term is defined in the Indian Gaming Regulatory Act (the"IGRA"), and even if it were, the land was not acquired "as part of the settlement of a land claim," such that it would be excepted from the IGRA's general prohibition on gaming on lands acquired after October 17, 1988. 25 U.S.C. § 2719.
The instant Complaint sets forth three claims for relief. Only two give rise to the pending discovery dispute, and both allege violations of the Administrative Procedure Act ("APA"). In their second claim, Plaintiffs challenge new regulations promulgated by the Secretary of the Interior in May 2008 regarding the scope of IGRA's prohibition on gambling on "after-acquired" land. Specifically, they contend the Secretary of the Interior acted arbitrarily and capriciously when he adopted substantive revisions to the proposed regulations without first republishing them for additional public comment. Plaintiffs also charge that the final regulations are contrary to Congress's intent. The third claim involves the IGRA's "settlement of a land claim" exception to the gaming prohibition. Here again, Plaintiffs allege both that the Secretary failed to republish substantive revisions to the proposed regulations prior to their adoption, and that the regulations contradict the statute's clear meaning. They seek an order declaring the DOI's regulations, and the NIGC's January 20, 2009 approval of the SNI's second amended gaming ordinance, based on those regulations, invalid.
On May 11, 2010, the NIGC filed its administrative record containing the documents then-Chairman Hogen relied on in approving the SNI's second amended gaming ordinance. (Docket Nos. 24, 25.) The DOI filed its administrative record on August 27, 2010. The DOI record (Docket Nos. 31, 32) includes documents relating to an agency M-Opinion (M-37023) and a letter (Docket No. 31-2 at 24-33), both of which are signed by Solicitor David L. Bernhardt and dated January 18, 2009. These documents were issued after the NIGC requested a description of the DOI's policy reasons for adopting, in the new regulations, an interpretation of the IGRA's after-acquired land prohibition that contradicts the agency's prior interpretation. (Docket No. 31-2 at 34.)
Upon review of the administrative records, Plaintiffs believed certain documents had been improperly omitted. They attempted to resolve their concerns directly with Defendants, who supplemented the record, on December 1, 2010, to include documents relating to one of Plaintiffs' three areas of concern. (Docket No. 33.) On June 22, 2011, Plaintiffs moved to compel production and authorize discovery to supplement the record on the grounds that: (1) the government had asserted unfounded claims of privilege and redacted highly relevant information, and (2) Edith Blackwell, who served as Associate Solicitor for the Division of Indian Affairs, had a conflict of interest that infected the integrity of the rulemaking process.
The motion to compel was granted in part on August 30, 2011, and Defendants were directed to produce documents related to Solicitor Opinion M-37023 that had been redacted or withheld solely on the basis of the deliberative process privilege. As for Blackwell's participation in the M-Opinion, this Court found no record evidence suggesting that she had been involved in that portion of section 2719 rulemaking that addressed the statute's applicability to restricted fee lands and, further, that Plaintiffs' fact allegations and claims do not place the integrity of the DOI and NIGC decisionmaking processes at issue. Thus, Plaintiffs' request for additional discovery on this basis was denied. The Court left open the possibility for a further motion, should the directed production reveal new relevant information.
The DOI filed its amended privilege log and additional documents on September 9, 2011. Plaintiffs again believe the Government's disclosure is incomplete. They first sought additional clarification and/or disclosure from Defendants. When Defendants declined to provide the additional requested materials, Plaintiffs filed this second motion to compel on December 30, 2011. In essence, they argue that Defendants have not provided all disclosure required by this Court's prior order, and that additional evidence regarding Blackwell's conduct warrants the disclosure of additional privileged materials and/or extra-record discovery.
A. The Relevant Legal Principles
"Generally, a court reviewing an agency decision is confined to the administrative record compiled by that agency when it made the decision." Nat'l Audubon Soc'y v. Hoffman, 132 F.3d 7, 14 (2d Cir. 1997) (citing Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44, 105 S. Ct. 1598, 84 L. Ed. 2d 643 (1985)). The rationale for this "record rule" is that, when considering a determination or rule that an administrative agency is authorized by law to make, the reviewing court should have before it nothing more than the materials that were before the agency when it made its decision, and should not substitute its opinion for that of the agency. SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S. Ct. 1575, 91 L. Ed. 1995 (1947).
It is important to note that, for purposes of judicial review, the "complete administrative record" may not contain all of the information that was before the agency. Privileged materials, such as documents that fall within the deliberative process privilege, attorney-client privilege, and work product privilege are properly excluded from the record. New York v. Salazar, 701 F. Supp. 2d 224, 236 (N.D.N.Y. 2010) (citations omitted).
At issue here is the deliberative process privilege, which shields the disclosure of inter- or intra-agency documents that are both "predecisional" and "deliberative." Alloco Recycling, Ltd. v. Doherty, 220 F.R.D. 407, 411 (2004). It is the government's burden to establish that materials withheld on the basis of deliberative process privilege fall within these parameters. Conte v. County of Nassau, CV 06-47462009 U.S. Dist. LEXIS 41348, at *13 (E.D.N.Y. May 15, 2009) (citations omitted). Even where the parameters are met, the deliberative process privilege can "evaporate" where a "party's cause of action is directed at the government's intent in rendering its policy decision and closely tied to the underlying litigation." Children First Found., Inc. v. Martinez, 04-CV-0927, 2007 U.S. Dist. LEXIS 90723, 26-28 (N.D.N.Y Dec. 10, 2007) (privilege found to have evaporated where plaintiff claimed that decision makers engaged in and facilitated discrimination in rendering policy decision); McPeek v. Ashcroft, 202 F.R.D. 332, 335 (D.D.C. 2001) ("It is certainly true that this privilege yields when the lawsuit is directed at the government's subjective motivation in taking a particular action."); State of New York v. Oneida Indian Nation of New York (Oneida II), No. 95-CV-0522, 2007 U.S. Dist. LEXIS 57469, at *41-42 (N.D.N.Y. Aug. 7, 2007) (where intent of compact was directly at issue, privilege did not apply to materials explaining government's intentions during negotiation process).
Affirmative requests for discovery are subject to a different analysis than are disputes over the propriety of privilege assertions. Courts have recognized only a handful of "rare case" exceptions to the "record rule" that would allow for consideration of extra-record evidence. These include: (1) where the movant has presented "a strong showing of bad faith or improper behavior by agency decision makers," Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420, 91 S. Ct. 814, 28 L. Ed. 2d 136 (1971); (2) where the court wishes to obtain background information as an aid to understanding highly technical matters, Animal Defense Council v. Hodel, 840 F.2d 1432, 1436 (9th Cir. 1988), or to determine the adequacy of the procedures and facts considered, Former Employees of Pittsburgh Logistics Sys., Inc. v. United States Sec'y of Labor, 27 CIT 339, 343, ...