Opinion
02-CV-0243E(Sr).
January 27, 2004.
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
This Court has been asked to resolve a discovery dispute between the parties. Defendants refused to produce certain documents on the basis of the deliberative process privilege ("the DPP"). Plaintiffs objected for a variety of reasons, including the purported inapplicability of the DPP. For the foregoing reasons, defendants shall be required to produce documents 1-2 and 4-7 and page EC0015 of document 3.
See, e.g., DiPace v. Goord, 218 F.R.D. 399, 403 (S.D.N.Y. 2003) (discussing the DPP).
In order to invoke the DPP, "the document asserted to be privileged must be both `predecisional' and `deliberative.'" The DPP "applies to both intra-agency and inter-agency communications" and has been applied to municipal entities.
Nat'l Congress for Puerto Rican Rights v. City of New York, 194 F.R.D. 88, 92 (S.D.N.Y. 2000) (citing Hopkins v. U.S. Dep't of Housing Urban Dev., 929 F.2d 81, 84 (2d Cir. 1991)); see also Tigue v. U.S. Dep't of Justice, 312 F.3d 70, 76 (2d Cir. 2002) ("In order for a document to be protected by [the DPP], it must be: (1) an inter-agency or intra-agency document; (2) `predecisional'; and (3) deliberative."). Although many decisions addressing the DPP, including Hopkins, involved the Freedom of Information Act ("FOIA"), they nonetheless inform the DPP analysis in the non-FOIA context. See Azon v. Long Isl. R.R., 2001 WL 1658219, at *1 (S.D.N.Y. 2001) (citing Hopkins and other FOIA caselaw in the non-FOIA context).
DiPace, supra note 2, at 403.
Cipolla v. Cty. of Rensselaer, 2001 WL 1223489, at *2 (N.D.N.Y. 2001).
In order to be "predecisional," a document must have been "prepared in order to assist an agency decisionmaker in arriving at her decision." Accordingly, the DPP "protects recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency." Indeed, "information is `predecisional' if it precedes, in temporal sequence, the decision to which it relates * * * rather than a postdecisional memorand[um] setting forth the reason for an agency decision already made." Moreover, the DPP "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."
Nat'l Congress, supra note 3, at 92 (quoting Hopkins, supra, note 3) (internal quotations omitted).
Nat'l Congress, supra note 3, at 92 (quoting Grand Cent. P'shp, Inc. v. Cuomo, 166 F.3d 473, 482 (2d Cir. 1999)).
LNC Invs., Inc. v. Republic of Nicar., 1997 WL 729106, at *1 (S.D.N.Y. 1997) (citations and internal quotations omitted).
Grand Cent. P'shp, supra note 7, at 482 (internal quotations and citation omitted); see also Resolution Trust Corp. v. Diamond, 137 F.R.D. 634, 641 (S.D.N.Y. 1991) (holding that the DPP does not cover "materials related to the explanation, interpretation or application of an existing policy, as opposed to the formulation of a new policy").
A document is deliberative when it is "actually * * * related to the process by which policies are formulated." Accordingly, the DPP "focus[es] on documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." Conversely, the DPP "does not, as a general matter, extend to purely factual material." In other words, the DPP does not "protect factual findings and conclusions, as opposed to opinions and recommendations." Consequently, "[w]henever possible, facts that are separable from the privileged portion of a document should be disclosed."
Hopkins, supra note 3, at 84.
Hopkins, supra note 3, at 84-85 (internal quotations and citation omitted).
Hopkins, supra note 3, at 85.
Resolution Trust, supra note 9, at 641 ("The exercise of judgment in the formulation of a factual statement is not sufficient to lift it to the level of deliberation. The privilege also does not extend to materials related to the explanation, interpretation or application of an existing policy, as opposed to the formulation of a new policy.") (citation omitted); see also Rao v. New York City Health Hosps. Corp., 1993 WL 307860, at *1 (S.D.N.Y. 1993) (noting that the DPP "does not extend to working law communications, i.e., explanations of an existing decision, purely factual matters or factual data which can be severed from a deliberative memorandum or report") (internal quotations and citation omitted).
LNC Invs., supra note 8, at *2 (citing Hopkins, supra note 3, at 85).
Several courts have set forth procedural requirements required for the invocation of the DPP. First, a claim of the DPP "must be asserted by the head of the governmental agency which has control over the information to be protected, after personal review of the documents in question" or "the head of the agency may designate a subordinate in high authority who is competent to assess the confidential nature of the agency's documents." Second, "the information or documents sought to be shielded must be identified and described." Third, "the agency must provide `precise and certain' reasons for asserting confidentiality over the requested information." Nonetheless, the DPP is a qualified privilege that may be overcome. "Once a government agency establishes that the document at issue is privileged information, courts must strike a balance between the public interest in disclosing the documents and the government's interest in protecting them."
See, e.g., Rao, supra note 13, at *1-2 (applying the DPP procedural requirements to state entities); Mary Imogene Bassett Hosp. v. Sullivan, 136 F.R.D. 42, 44 (N.D.N.Y. 1991) (requiring federal agency to satisfy the DPP procedural requirements in a non-FOIA context).
LNC Invs., supra note 8, at *2.
LNC Invs., supra note 8, at *2.
LNC Invs., supra note 8, at *2.
Herman v. The Crescent Publ'g Group, 2000 WL 1371311, at *3 (S.D.N.Y. 2000).
LNC Invs., supra note 8, at *2 (noting that courts may consider factors including (1) the interest of the private litigant; (2) the need for accurate judicial fact-finding; (3) the relevance of the evidence sought; (4) the availability of other evidence; and (5) the role of the government in the litigation and issues involved).
"Underlying the [DPP] is the rationale that `those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process.'" In other words, the DPP "rests 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, and its object is to enhance the quality of agency decisions."
Grand Cent. P'shp, supra note 7, at 481 (quoting U.S. v. Nixon, 418 U.S. 683, 705 (1974)); see also Manzi v. DiCarlo, 982 F. Supp. 125, 130 (E.D.N.Y. 1997) (noting that the DPP is designed "to protect the decision making processes of the executive branch by shielding the intra-agency memoranda reflecting recommendations and deliberations about governmental policies.").
Dep't of the Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8-9 (2001) (internal quotations and citation omitted).
Assuming arguendo that defendants have satisfied the procedural requirements, if any, required for application of the DPP, this Court makes the following findings with respect to documents 1 through 7 listed in the defendants' privilege log in light of the principles discussed above. First, defendants will be required to produce documents 1 (EC0001-EC00012) and 2 (EC0013-EC0014) because these documents are not "deliberative." Indeed, documents 1 and 2 contain purely factual information.
It is not clear that the procedural requirements from FOIA exemption 5 cases are applicable in the non-FOIA context — as opposed to the substantive principles of the DPP analysis. See note 3 supra.
Second, document 3 (EC0015-EC0016) is covered by the DPP. Nonetheless, it should be redacted and produced inasmuch as it contains facts that are separable from the privileged material. Accordingly, defendants shall produce EC0015 but may continue to withhold EC0016.
EC0015 contains budget forecasts, i.e., factual data. Cf. Manzi, supra note 21, at 131 ("These documents contain primarily factual information regarding Senator DiCarlo's proposed budget or contemplated expenditures and are thus outside the deliberative process privilege.") (emphasis added).
Inasmuch as EC0016 appears irrelevant to this action, plaintiffs' interest in disclosure is outweighed by the defendants' interest in preserving privilege.
Third, defendants will be required to produce documents 4 (EC0017-EC0025), 5 (EC0026-EC0146), 6 (EC0147-EC0182) and 7 (EC0183-EC0195) because they are neither "predecisional" nor "deliberative." Document number 4 was generated after the 2002 budget had been passed and it contains factual information; it is not the type of draft document or proposal covered by the DPP. Documents 5 and 6 were generated after the 2002 budget was adopted. Moreover, it is irrelevant that documents 4-7 were "used by high level county personnel" because the DPP does not insulate any and all facts or documents relied on in making a decision. Documents 4-7 contain purely factual data rather than opinions or recommendations protected by the DPP.
The fact that document 4 was a formal report to the County Legislature and the County Executive demonstrates that this document is not a draft or the type of proposal covered by the DPP. This Court is aware of no decision extending the DPP to protect communications sent to multiple branches of government — as opposed to inter-agency communications. The same holds true with respect to document 7, a report to the County Executive from former State Comptroller H. Carl McCall.
Document 5 was previously published, further undermining defendant's claim of privilege. See, e.g., www.erie.gov/depts/government/comptroller/press072402.phtml.
See Manzi, supra note 21, at 131.
Accordingly, it is hereby ORDERED that defendants shall produce documents 1-2 and 4-7 and page EC0015 of document 3 within five business days after receiving this decision.
In other words, of the 195 pages of documents withheld by the defendants, only page EC0016 may be withheld pursuant to the DPP.