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holding that the sensitive investigation records of non-party individuals should be "guard[ed] against disclosure that has the potential to invade their privacy and impair their personal reputations"
Summary of this case from Dorsett v. County of NassauOpinion
No. 01 Civ. 8906 (AGS)(DF)
February 24, 2003
MEMORANDUM AND ORDER
Before the Court is an application by Defendant the City of New York (the "City") for a protective order, and a motion by The Daily News for leave to intervene in this action for the purpose of opposing the proposed protective order. For the following reasons, the motion to intervene is granted, but the City's request for a protective order is also granted, to the limited extent described below.
BACKGROUND
In this case, Plaintiffs, who identify themselves as "Moorish-Americans," claim that they were denied equal protection of the law when they were allegedly singled out for discharge from their employment with the New York City Department of Corrections because of their race, religion or creed. According to Defendants, Plaintiffs were legitimately terminated because, in submissions to their employer, they had falsely claimed that they were exempt from paying federal, state and local income taxes. Plaintiffs, however, assert that other City or Department employees, who were white or otherwise not Moorish-American, had made similar "false" claims about their tax status, but that these employees were not made to suffer the same adverse consequences for their conduct.
The case has been referred to me for the supervision of discovery, and an issue has arisen as to whether the City's production of tax, disciplinary, investigatory, and personnel records relating to City employees other than Plaintiffs should be covered by a protective order, limiting disclosure of such records to the parties for their use in this action. The City has already produced some information relating to the claimed tax status of non-party employees, but this production was purportedly made in reliance on an oral representation by Plaintiffs' counsel that such information would be kept confidential. (See letter dated February 13, 2003, from Michael E. DeLarco, Esq., to the Court ("2/13/03 DeLarco Ltr.") at 1; letter dated February 20, 2003, from Michael E. DeLarco, Esq., to the Court ("2/20/03 DeLarco Ltr.") at 1-2.)
Plaintiffs' counsel denies that she ever agreed "orally or otherwise" to a confidentiality order (see letter dated February 21, 2003, from Irene Donna Thomas, Esq., to the Court (2/21/03 Thomas Ltr.") at 1), and, indeed, she did not sign the proposed stipulated confidentiality order sent to her by the City (see letter dated February 14, 2003, from Irene Donna Thomas, Esq., to the Court ("2/14/03 Thomas Ltr.")). Counsel's specific objection to the proposed order is that it would unfairly restrict only Plaintiffs' ability to disseminate information, while permitting the City to disclose any information it desires. (See id. at 1.)
The City brought the matter to the Court's attention after it became apparent that Plaintiffs' counsel had gone ahead and shown some of the produced documents to the press, specifically, to a reporter from The Daily News. (See 2/13/03 DeLarco Ltr. at 1; 2/14/03 Thomas Ltr. at 2.) The City protested that this breached counsel's prior agreement in principle, and requested an immediate order prohibiting any further disclosure of employee tax, investigatory and disciplinary records. (See 2/13/03 DeLarco Ltr.)
On February 14, 2003, the Court ordered that, pending further discussion with the parties at a conference scheduled for February 19, both parties should "mutually treat all employee records and records regarding allegations [or] investigations of employee misconduct as confidential and not for public disclosure." The purpose of this ruling was to protect personal and potentially sensitive information from disclosure until the Court could consider the matter more fully.
On February 18, 2003, the Court received a letter application from counsel for The Daily News, seeking to intervene in the action for the limited purpose of challenging the protective order requested by the City. The Daily News asserts that, "[a]s a news organization seeking to secure its and the public's right of access to proceedings herein," it is entitled to intervention as of right, pursuant to Fed.R.Civ.P. 24(a)(2). (Letter dated February 18, 2003, from Jonathan R. Donnellan, Esq., to the Court ("2/18/03 Donnellan Ltr.") at 1.) At a minimum, The Daily News contends that it should be granted permissive intervention, pursuant to Fed.R.Civ.P. 24(b)(2), because its "assertion of its and the public's access rights and the main action have in common certain questions of law and fact — i.e., the propriety and scope of any protective order in this action." (Id.)
With respect to the documents at issue, The Daily News argues that the records are relevant to the question of whether public officers have complied with City and Department of Corrections policies prohibiting employees from claiming an excessive number of tax exemptions. (See letter dated February 21, 2003, from Jonathan R. Donnellan, Esq., to the Court ("2/21/03 Donnellan Ltr.") at 2-3.) According to The Daily News, the public should have access to information "concerning public servants' performance of their duties," and the City has not adequately demonstrated "good cause" for restricting public disclosure of such information. (See id. at 4.)
Despite Plaintiffs' apparent initial willingness to agree to a protective order that would equally restrict both Plaintiffs' and Defendants' ability to disclose protected materials, Plaintiffs' counsel now joins in The Daily News's argument that the City has not met the "good cause" standard necessary for the issuance of any protective order. (See letter dated February 19, 2003, from Irene Donna Thomas, Esq., to the Court ("2/19/03 Thomas Ltr.").)
Although the City does not oppose The Daily News's motion for intervention, it argues that the Court's temporary protective order of February 14 should continue, without modification. The City does, however, make that request with one caveat: in light of the fact that The Daily News is apparently planning to publish an article referring to the information that has already been disclosed by Plaintiffs' counsel, the City asks for limited permission to respond to the reporter's inquiries, so that the anticipated article will not be "one-sided." (2/20/03 DeLarco Ltr. at 1, 4-5.)
DISCUSSION I. THE MOTION TO INTERVENE IS GRANTED.
Regardless of whether The Daily News is entitled to intervention as of right, the Court agrees that it is, in any event, entitled to permissive intervention, in order to articulate the public interest in access to the records at issue. See, e.g., Universal City Studios, Inc. v. Reimerdes, No. 00 Civ. 0277 (LAK), 2000 U.S. Dist. LEXIS 11927 (S.D.N.Y. June 7, 2000) (granting newspapers leave to intervene for purpose of opposing a motion for a protective order); In re NASDAQ Market-Makers Antitrust Litig., 164 F.R.D. 346, 350-51 (S.D.N.Y. 1996) (granting newspaper's motion for intervention as of right to gain access to discovery materials); In re Application of The Akron Beacon Journal (Havens v. Metropolitan Life Ins. Co.), No. 94 Civ. 1402 (CSH), 1995 U.S. Dist. LEXIS 5183, at *6-22 (S.D.N.Y. Apr. 20, 1995) (granting newspaper permissive intervention); Savitt v. Vacco, Nos. 95-CV-1842 (RSP/DRH), 95-CV-1853 (RSP/DRH), 1996 U.S. Dist. LEXIS 16875, at *25-26 (N.D.N.Y. Nov. 8, 1996) ("The Second Circuit Court of Appeals and its district courts have consistently held that news agencies have standing to challenge protective orders in cases of public interest") (citing cases). Further, as noted above, the City has not expressed any opposition to the requested intervention itself.
The Daily News's motion to intervene is, therefore, granted, for the limited purpose of opposing the City's application for a protective order.
II. THE MOTION FOR A PROTECTIVE ORDER IS GRANTED IN PART AND DENIED IN PART. A. The City Has the Burden to Demonstrate Good Cause for the Requested Protective Order.As a preliminary matter, the Court notes that it was not asked to — and did not — issue a protective order prior to the City's production of the documents that were subsequently disclosed to the press by Plaintiffs' counsel. The City nonetheless argues that, because of Plaintiffs' counsel's purported "verbal representation that she would sign [the proposed stipulated] order and abide by its terms" (see 2/20/03 DeLarco Ltr. at 1), the Court should deem the proposed order to have been in place at the time of the City's document production. Further, the City argues that, because it produced documents in reliance on the order that it believed would be signed by opposing counsel (and, presumably, by the Court), the Court should treat the instant matter as an application by Plaintiffs and The Daily News for a modification of a pre-existing order. Thus, the City seeks to assign to Plaintiffs the burden of showing "improvidence in the grant of the order or some extraordinary circumstance or compelling need." (See id. at 2-3 (quoting S.E.C. v. Thestreet.com, 273 F.3d 222, 229 (2d Cir. 2001) (internal quotation omitted)).)
Regardless of whether Plaintiffs' counsel expressed a willingness to enter into a confidentiality agreement, there is no question that the City did not secure a written agreement prior to making its production. In addition, there is no question that the Court did not issue any protective order until February 14, well after the City produced documents in October 2002. Moreover, the Court issued its February 14 Order merely to preserve the status quo until the matter could be addressed in the conference scheduled for February 19. It was the Court's intention to hear argument at that time or to allow for further briefing, so that the City's request for a protective order could be given full and measured consideration on the merits. Therefore, it remains the City's burden to make a sufficient showing to justify issuance of a protective order; there is no basis to shift the burden to Plaintiffs (or to The Daily News, for that matter) to defeat or modify any existing order.
Under the Federal Rules, the City must demonstrate "good cause" for the protective order it seeks. See Fed.R.Civ.P. 26(c); see also In re "Agent Orange" Products Liab. Litig., 821 F.2d 139, 145-46 (2d Cir. 1987) ("A plain reading of the language of Rule 26(c) demonstrates that the party seeking a protective order has the burden of showing that good cause exists for issuance of that order. It is equally apparent that the obverse also is true, i.e., if good cause is not shown, the discovery materials in question should not receive judicial protection and therefore would be open to the public for inspection.").
In this case, the City asserts that the documents at issue should be protected from disclosure because they contain "highly sensitive and private information of non-party employees." (2/20/03 DeLarco Ltr. at 3.) The City further asserts that it has shown good cause for non-disclosure because the particular records sought — employee tax information, as well as disciplinary charges, settlements and plea negotiations concerning such charges — "have the potential to stigmatize, embarrass and even incriminate the non-party employees." (Id. at 4.) For the different types of information sought, the Court must balance these asserted privacy concerns of individual non-parties against the public's interest in obtaining access to records relating to Plaintiffs' equal protection claim. See U.S. v. Amodeo, 71 F.3d 1044 (2d Cir. 1995) (weighing privacy interests against the common law presumption of public access to judicial records); In re Savitt/Adler Litig., No. 95-CV-1842, 1997 U.S. Dist. LEXIS 23671, at *8-9 (N.D.N.Y. Dec. 23, 1997) (weighing, inter alia, potential damage to the reputations and privacy interests of non-party employees against presumption of public access), modified by 1998 U.S. Dist. LEXIS 1419 (N.D.N.Y. Feb. 5, 1998).
B. To Protect the Privacy Interests of Non-Parties, Their Identities Should Be Redacted From Any Investigatory or Personnel Files Disclosed to the Public.Here, the documents at issue can be divided into two basic categories: (1) records showing how may tax exemptions were claimed by various employees of the City or the Department of Corrections, and (2) files regarding the City's investigation into whether such records were false or fraudulent. It appears that the second category of files may contain charges against particular employees, settlement or plea agreements relating to such charges, information regarding the employee's overall work history (including any history of other types of disciplinary charges or proceedings), and various types of personal information from the individuals' personnel files.
With respect to the tax records at issue, the City analogizes the records to tax returns, which are a type of personal information that this Court has generally recognized as confidential. (See 2/20/03 DeLarco Ltr. at 3-4 and cases cited therein). There is, however, a significant difference between an individual's tax returns, which show detailed information regarding that individual's income and financial status, and the tax information that has been (or will be) produced in this case, which should merely reflect the claimed number of tax exemptions submitted by certain employees to their employer. Nonetheless, this information is still personal in nature, and does not relate to the employees' performance of their official duties. As such, public access to this information would be intrusive of the non-party employees' personal privacy, and that privacy should be protected, if this can be done in a manner consistent with the public's reasonable interest in access to evidence relating to Plaintiffs' equal protection claim.
In this vein, the Court notes that The Daily News has emphasized the opinion of the New York State Department of State's Committee on Open Government (the body charged with interpreting the State's Freedom of Information Law), which The Daily News quotes as stating: "With regard to records pertaining to public officers and employees, the courts have found that, as a general rule, records that are relevant to the performance of their official duties are available, for disclosure in such instances would result in permissible rather than an unwarranted invasion of personal privacy." (See 2/21/03 Donnellan Ltr. at 3.) The Court agrees that a lesser degree of protection should be accorded to records regarding the performance of public officers' official duties, but disagrees with The Daily News's implicit suggestion that, because the City may have adopted a policy prohibiting employees from claiming more than a certain number of tax exemptions, any evidence of violation of that policy is tantamount to evidence of misconduct in the performance of the employees' official duties. See Amodeo, 71 F.3d at 1044, 1051 ("In determining the weight to be accorded an assertion of a right of privacy, courts should first consider the degree to which the subject matter is traditionally considered private rather than public.").
The records concerning the investigation of non-party employees are even more potentially sensitive, as these records may contain a variety of types of personal information, as well as allegations that have not been fully investigated, substantiated, or proven. The individuals involved are not parties to this action, and are not being charged with wrongdoing in this case, and the Court should therefore make reasonable efforts to guard against disclosure that has the potential to invade their privacy and impair their personal reputations. See, generally, Amodeo, 71 F.3d at 1048-49; see also Flaherty v. Seroussi, 209 F.R.D. 300, 304 (N.D.N.Y. 2002) (whereas municipality's financial records were "presumptively open to the public," a protective order was warranted to prevent public disclosure of "medical, educational, and other inherently private information concerning individual employees of the City," as well as "allegations and investigations which have not ripened into employment actions").
Given the nature of the records at issue, the Court is persuaded that the City has shown good cause for a protective order in this action, but the Court is not convinced that such an order should provide blanket coverage for virtually all produced documents. Under Rule 26(c), the Court may fashion "any order which justice requires to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense." Here, the course that would best protect non-parties from embarrassment or oppression, while still affording the press a reasonable opportunity to obtain relevant information about the conduct of a City investigation, would appear to be a middle course between unfettered disclosure and a complete prohibition on disclosure.
Perhaps the most closely analogous case the Court has found is the Savitt/Adler case, where the press was interested in obtaining access to personnel files of employees of the New York State Department of Law, after the plaintiffs in that case raised charges that they had been discriminated against because they lacked political connections to the Republican Party. In re Savitt/Adler Litig., 1997 U.S. Dist. LEXIS 23671, at *2. Recognizing that the press was entitled to have sufficient means to assess the basis for the court's rulings on the merits of the action, as well as the underlying question of whether the State Attorney General had hired attorneys based on political patronage, the court nonetheless determined that some of the information at issue, including unsworn information, could be "quite damaging" to non-party employees, and that those employees' privacy interests were "entitled to substantial weight in the balancing analysis." Id. at *10.
As part of its analysis, the court noted that New York exempts the employment histories of public employees from disclosure under the Freedom of Information Law, which demonstrated to the Court that such materials "are traditionally considered private." Id. at *9-10.
After consideration of the competing interests, the court in Savitt/Adler concluded that the defendants' request to redact the names and identifying details of the non-party employees would protect those employees' privacy interests, without unduly limiting the public's ability to gauge the validity of the charges advanced in the lawsuit. See id. at *10. As the court summarized:
The public can assess the Attorney General's actions without the names of the individual [Assistant Attorneys General ("AAG")]. The redacted record will reveal what political influence a particular AAG may have had — both by virtue of letters of recommendation and by connection to particular political figures — and the evaluations that the AAG received both before and after hiring. All that will be missing is the identity of the AAG concerned. Because the redaction sought is minimal and largely unrelated to the public interest, I conclude that defendants have demonstrated both that a higher value will be served by redaction and that their proposed redactions are narrowly tailored to serve that interest.
Id. at *13.
Similarly, in this case, the public can assess the City's actions in discharging Plaintiffs without the names of the individual employees; while protecting the privacy of those employees, the redacted records will still reveal the number of tax exemptions claimed by the employees and will show whether those employees were investigated and/or subjected to discipline for submitting false tax documents. As in Savitt/Adler, redacting the employees' names will have minimal consequence on the public's ability to determine whether the City's stated policies regarding tax submissions were uniformly applied, or applied in a manner than singled out Plaintiffs for adverse action.
Accordingly, if any party wishes to disclose the produced files to the press or to anyone else (other than the parties, their counsel, experts retained by the parties in connection with this litigation, or witnesses at deposition), that party shall first redact the documents. The redactions shall remove the name of each non-party employee who is the subject of the records, as well as any specific identifying information, such as the employee's social security number, date of birth, or address. Further, the party wishing to make the disclosure shall first provide a copy of the document(s), in redacted form, to opposing counsel, so as to enable counsel to review the redactions and to object if counsel believes that the redactions are insufficient to protect employee identities. The documents should not be disclosed to the public until after counsel has confirmed that there are no disputes concerning the extent of the redactions. Any disputes regarding redactions are to be brought to the Court's attention in advance of public disclosure, and, if necessary, the Court will conduct an in camera review of representative samples of the documents, and will direct the redactions that are to be made. The parties should note that this ruling, in its entirety, is intended to apply to all parties, not just to Plaintiffs.
Deposition transcripts and Court papers containing the identities of non-party City employees should be treated similarly. Such information is not to be disclosed to the public except in redacted form, and any Court filings containing the identities of non-parties should be filed under seal, with redacted copies filed publicly.
C. Documents Already Disclosed To the Public
Even if certain documents have already been disclosed to the press without redactions, no further disclosure or dissemination of such documents may be made. In addition, to the extent that any party has disclosed tax, investigatory, or disciplinary records relating to non-party employees, that party should, to the extent possible, make diligent efforts to recover the documents that were disclosed and prevent further disclosure.
As the City is concerned that it should be permitted to speak with The Daily News reporter before a "one-sided" story is published, the Court emphasizes that this ruling is not a "gag order." Counsel for both Plaintiffs and Defendants are free to speak with the press about this case generally, and about any documents that are already in the hands of the press or the public. In speaking with the press, however, neither counsel may, either directly or indirectly, disclose the identities of any non-party employees whose names have not already been disclosed.
CONCLUSION
For all of the above-stated reasons, The Daily News's motion to intervene is granted. The City's motion for a protective order is granted to the extent that records relating to non-party employees of the City shall be redacted prior to any disclosure to the public, so as to delete the names of the non-parties, as well as identifying details, such as their social security numbers, dates of birth, and addresses.
SO ORDERED