MEMORANDUM AND ORDER

LEWIS KAPLAN, District Judge

Plaintiffs here challenge the constitutionality of certain New York City regulations (the "Parade Regulations") insofar as they regulate group bicycle riding. The Court previously denied their motion for a preliminary injunction. The matter now is before the Court on plaintiffs' motion to compel production of documents withheld by defendants on the ground of the deliberative process privilege.

The crux of the present dispute is plaintiffs' desire to obtain production of documents relating to the rationale for the 2007 amendment to the Parade Regulations. The City initially asserted the deliberative process privilege with respect to 99 documents of which 47 relate to the various Parade Regulation amendments. Of those 47 documents, 11 were withheld solely on the basis of the deliberative process privilege and 36 on the basis of other privileges as well.

The parties seem to agree that the deliberative process privilege is "a sub species of the work-product privilege that `covers documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.'" It exists in recognition of the fact that "officials will not communicate candidly among 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." Nevertheless, the privilege is not absolute, and the parties diverge here as to its application in this case.

Plaintiffs' position, which rests principally on district court decisions, is that the deliberative process privilege "evaporates" altogether where the deliberative process itself is "central to the dispute," as plaintiffs claim is the case here. Nevertheless, as defendants argue, many cases have employed a balancing test where such privilege claims are made, weighing "(i) the relevance of the evidence sought to be protected; (ii) the availability of other evidence; (iii) the seriousness of the litigation and the issues involved; (iv) the role of the government in the litigation; and (v) the possibility of future timidity by government employees who will be forced to recognize that their secrets are violable." Indeed, this seems to be the more accepted view. Moreover, the difference between the parties as to whether the privilege is categorically inapplicable or dependent on a balancing of factors where the information sought is important to resolution of the dispute is more stylistic than substantive. The more important the presumptively privileged information is to the proper resolution of the controversy, the more likely the party seeking the discovery is to prevail on the point.

In this case, plaintiffs assert that the documents relating to the process by which the 2007 amendment to the Parade Regulations was adopted are critical because "[t]he litigation centers in large part on Plaintiffs' charge that Defendants adopted the current version of the Rules . . . for the unconstitutional purpose of retaliating against, and selectively prosecuting, persons affiliated with the Critical Mass bicycle rides." In fact, however, the retaliation claims in the complaint (the fifth and sixth causes of action) contend only that certain plaintiffs were arrested or given summonses in retaliation for exercising what they claim are their First Amendment rights. Moreover, in litigating the preliminary injunction motion, which was the subject of an evidentiary hearing and extensive briefing, plaintiffs did not contend that the Parade Regulations amendment was adopted to retaliate against them. Indeed, their memorandum in support of the motion for a preliminary injunction seemed to adopt the defendants' contention that the amendment was a response to previous state court decisions. Nevertheless, almost lost in plaintiffs' 43-page amended complaint is an allegation that the Parade Regulations were "part" of a campaign "to retaliate and selectively prosecute the laws against the Individual Plaintiffs based upon their association with Manhattan Critical Mass and their other exercises of constitutionally protected rights."

The point of all this is plain enough. Contrary to plaintiffs' rhetoric, this litigation does not — or at least to this point has not — "center[ed] in large part" on any claim that the 2007 amendment was adopted for a retaliatory purpose. On the other hand, contrary to defendants' rhetoric, the question whether there was a retaliatory purpose to the legislation is not entirely alien to this case.

In these circumstances, a categorical approach to the deliberative process privilege seems inappropriate. Certainly it would be inappropriate without examining the documents in question, as the documents in fact may shed no light at all on the subjective motivation for the amendment and thus have no real role in resolving the action, even if proof of a retaliatory motive becomes a significant part of plaintiffs' case. Accordingly, defendants shall submit for in camera review the 11 documents relating to the amendment of the Parade Regulations that have been withheld from disclosure solely on the basis of the deliberative process privilege. There is no need to rule on the deliberative process privilege claim as to the remaining documents as long as the attorney-client and other privilege claims with respect to them remain unchallenged and unresolved.

SO ORDERED.