Illinois League of Advocates for the Developmental et al v. Illinois Department of Human Services et al

Filing 215

MEMORANDUM Opinion and Order Signed by the Honorable Marvin E. Aspen on 9/3/2013:Judicial staff mailed notice(gl, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ILLINOIS LEAGUE OF ADVOCATES
FOR THE DEVELOPMENTALLY,
DISABLED, et al.
Plaintiffs,
v.
PATRICK QUINN, et al.
Defendants.

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Case No. 13 C 1300
Judge Marvin E. Aspen

MEMORANDUM OPINION AND ORDER
MARVIN E. ASPEN, District Court Judge:
Presently before us is Defendants’1 disputed claim of privilege with respect to numerous
documents identified during the parties’ expedited discovery. (Dkt. No. 184.) After reviewing
the documents in camera and considering the parties’ positions, we allow the motion in part, and
deny it in part. As discussed below, Defendants shall produce the documents identified as
categories 1 through 4, and categories 6 through 8, within three business hours. The documents
included as the fifth category are shielded by the deliberative process privilege.
BACKGROUND
We assume familiarity with the factual background of this case, previously recounted in
other opinions, and discuss only those facts pertinent to the present dispute. Plaintiffs seek a
preliminary injunction preventing the closure of the Murray Developmental Center (“Murray”)

1

For purposes of this opinion, and unless otherwise indicated, “Defendants” refers to
Illinois Department of Human Services (“DHS”), Kevin Casey, and Michelle R.B. Saddler.

and the transfer of its residents to other locations, if those residents have not consented to such
transfer. (Pls.’ Mem. ISO Legal Theory at 7.) Plaintiffs also ask that we enjoin the Defendants,
including Defendant Community Resources Associates (“CRA”), from conducting any pretransfer assessments or related activities, unless undertaken with a guardian’s approval. (Id.)
The preliminary injunction hearing is scheduled to commence September 9, 2013 at 10 a.m. In
preparation for the hearing, the parties have engaged in expedited discovery.
During the course of discovery, Defendants identified roughly 100 documents they
contend are protected by the deliberative process privilege. Defendants group these documents
into eight categories: (1) DHS communications about funding and budgeting proposals for
Community Integrated Living Arrangements (“CILAs”); (2) agency communications about
proposed policies and procedures for Murray in preparation for its closure; (3) documents
concerning the Active Community Care Transition (“ACCT”) process;2
(4) memos from CRA to DHS about closing the Murray and Jacksonville facilities;
(5) documents showing DHS’s deliberations and opinions about proposed legislation;
(6) documents showing recommendations and deliberations about the Rebalancing Initiative;
(7) documents about proposals on the Regional Management Structure; and (8) one document
containing pre-decisional deliberations about eligibility to receive benefits. (Mem. at 2–3.) In
support of their assertion of privilege, Defendants submitted their privilege log and filed a
declaration from Kevin Casey, the Director of Developmental Disabilities for DHS. (Dkt. Nos.
184-2 & 186-1 (Casey Decl.).) Casey states that he believes all of these withheld documents are

2

Neither party has defined the ACCT process, but we assume for present purposes that it
is the name given, or perhaps a working group effectuating, CRA’s assessment process
undertaken on behalf of DHS.
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pre-decisional and should remain confidential. (Casey Decl. ¶¶ 5, 7–8.) In compliance with our
earlier orders (Dkt. Nos. 174 & 178), Defendants submitted the documents for in camera review.

Plaintiffs contest Defendants’ assertion of the deliberative process privilege on several
grounds. Plaintiffs argue that Defendants have not sufficiently demonstrated the privilege and,
moreover, that it does not apply under these circumstances because Defendants’ intent is at issue.
(Resp. at 1–3.) They further contend that, even if Defendants met their burden, Plaintiffs have a
particularized need for the documents that trumps the privilege. (Id. at 3–5.) Having considered
the parties’ briefs, including the recently-filed sur-reply, we will consider each argument in turn.
Our applications of law to fact in deciding Defendants’ claim of privilege are subject to
review on appeal for clear error. Valero Energy Corp. v. U.S., 569 F.3d 626, 630 (7th Cir.
2009); U.S. v. BDO Seidman, LLP, 492 F.3d 806, 814 (7th Cir. 2007). “Findings regarding
privilege are fact-intensive, case-specific questions that fall within the district court’s expertise,
and, under these circumstances, a light appellate touch is best.” Valero Energy Corp., 569 F.3d
at 630 (internal quotation omitted). “On the other hand, the scope of a privilege is a question of
law,” which is reviewed de novo. BDO Seidman, LLP, 492 F.3d at 814; Sandra T.E. v. S.
Berwyn Sch. Dist. 100, 600 F.3d 612, 618–19 (7th Cir. 2010); Jenkins v. Bartlett, 487 F.3d 482,
491 (7th Cir. 2007) (reviewing de novo the district court’s assumption that an attorney
performing investigative work is not acting as an attorney, for purposes of the attorney-client
privilege).
ANALYSIS

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“The deliberative process privilege protects communications that are part of the decisionmaking process of a governmental agency.” U.S. v. Farley, 11 F.3d 1385, 1389 (7th Cir. 1993)
(citing NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150–52, 95 S. Ct. 1504, 1516–17 (1975));
Evans v. City of Chi., 231 F.R.D. 302, 315–16 (N.D. Ill. 2005); Tumas v. Bd. of Educ. of Lyons
Twp. High Sch. Dist. 204, No. 06 C 1943, 2007 WL 2228695, at *1 (N.D. Ill. July 31, 2007).
The privilege protects “communications made prior to and as a part of an agency determination”
because “frank discussion of legal and policy matters is essential” to governmental
decisionmaking. Farley, 11 F.3d at 1389; Evans, 231 F.R.D. at 316; Tumas, 2007 WL 2228695,
at *1. “[T]he ultimate purpose of this long-recognized privilege is to prevent injury to the
quality of agency decisions.” Sears, Roebuck & Co., 421 U.S. at 150, 95 S. Ct. at 1516.
Accordingly, the privilege covers “documents reflecting advisory opinions, recommendations
and deliberations comprising part of a process by which governmental decisions and policies are
formulated.” Id.; see Evans, 231 F.R.D. at 316. Nonetheless, the privilege is not absolute, and it
“may be overcome where there is a sufficient showing of particularized need to outweigh the
reasons for confidentiality.” Farley, 11 F.3d at 1389; Tumas, 2007 WL 2228695, at *1; see also
Sronkoski v. Schaumburg Sch. Dist., No. 54, No. 08 C 721, 2009 WL 1940779, at *1 (N.D. Ill.
July 1, 2009).
We therefore follow a two-step analysis when evaluating Defendants’ claim. We first
must decide whether Defendants have complied with procedural requirements and shown that
the privilege in fact applies to each of the withheld documents. If the privilege applies, we
consider whether Plaintiffs have shown a particularized need for any of the materials that

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warrants disclosure. Sronkoski, 2009 WL 1940779, at *1; Evans, 231 F.R.D. at 316; Ferrell v.
U.S. Dep’t of Housing & Urban Dev., 177 F.R.D. 425, 428 (N.D. Ill. 1998).
A.

Availability of the Privilege Where Intent Is at Issue
Before we undertake the two-part analysis, we briefly consider a threshold question

raised by the parties: whether, as a matter of law, the deliberative process privilege applies where
the government’s intent is at issue. As Plaintiffs point out, several district and magistrate judges
in the Seventh Circuit have concluded that this privilege has no effect where the intent behind
the government’s decision-making process is directly at question. U.S. v. Lake County Bd. of
Commrs., 233 F.R.D. 523, 526–27 (N.D. Ind. 2005) (holding that the privilege “does not apply
in civil rights cases in which the defendant’s intent to discriminate is at issue”); see Glenwood
Halsted LLC v. Vill. of Glenwood, No. 11 C 6772, 2013 WL 140794, at *3 (N.D. Ill. Jan. 11,
2013); Lewis v. Phillips, No. 10 C 3163, 2012 WL 5499448, at *2 (C.D. Ill. Nov. 13, 2012);
Dunnet Bay Constr. Co. v. Hannig, No. 10 C 3051, 2012 WL 1599893, at *3 (C.D. Ill. May 7,
2012); Anderson v. Marion Cty. Sheriff’s Dep’t, 220 F.R.D. 555, 561 (S.D. Ind. 2004); Anderson
v. Cornejo, No. 97 C 7556, 2001 WL 826878, at *2 (N.D. Ill. 2001). The Seventh Circuit has
not yet evaluated this approach.
In the absence of clear precedent, we are reluctant to preclude reliance on the
privilege—generally a case-specific proposition—as a matter of law. See, e.g., Valero Energy
Corp., 569 F.3d at 630 (noting that questions of privilege are “fact-intensive, case-specific
questions”); First Heights Bank, FSB v. U.S., 46 Fed. Cl. 312, 322 (Fed. Cl. 2000) (declining to
follow the line of cases precluding this privilege as a matter of law). Nonetheless, in light of our
conclusions below requiring additional disclosures, we need not rule on this specific question.

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As recognized by the above cases, the government’s intent, where directly contested, is without
question a critical factor to consider when analyzing a litigant’s need for withheld documents.
U.S. v. Bd. of Educ. of City of Chi., 610 F. Supp. 695, 700 (N.D. Ill. 1985) (rejecting assertion of
privilege where the decisionmaking process “is the case”); see In re Delphi Corp., 276 F.R.D.
81, 84–86 (S.D.N.Y. 2011) (subjecting the privilege to the balancing test, noting that disclosure
will often follow anyway where the deliberative process is the central issue); Vietnam Veterans
of Am. v. C.I.A., No. 09 C 37, 2011 WL 4635139, *10 (N.D. Cal. Oct. 5, 2011) (declining to
decide this same issue because the government’s “intent is properly considered as a factor in the
substantial need analysis”). We will explore Plaintiffs’ particularized need for the documents
below.
B.

Defendants’ Assertion of the Privilege
Defendants must satisfy both procedural and substantive requirements to establish the

deliberative process privilege. Procedurally, the government must submit a formal claim from
the appropriate department head, asserting the privilege based on his or her consideration of the
circumstances. Evans, 231 F.R.D. at 316; Ferrell, 177 F.R.D. at 428. In that claim, typically an
affidavit, the responsible official must “demonstrate . . . precise and certain reasons for
preserving the confidentiality of the documents in question” and “specifically identify and
describe the documents.” Ferrell, 177 F.R.D. at 428 (quoting K.L. v. Edgar, 964 F. Supp. 1206,
1209 (N.D. Ill. 1997)); Evans, 231 F.R.D. at 316.
More substantively, in its proof the government must demonstrate that the documents are
pre-decisional and deliberative. Enviro Tech Int’l, Inc. v. U.S. Envi. Protection Agency, 371
F.3d 370, 374–75 (7th Cir. 2004); Sronkoski, 2009 WL 1940779, at *1; Evans, 231 F.R.D. at

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316. “[T]o qualify for the privilege, a document must be both pre-decisional in the sense that it
is actually antecedent to the adoption of an agency policy, and deliberative in the sense that it is
actually related to the process by which policies are formulated.” Enviro Tech Int’l, Inc., 371
F.3d at 375; Sronkoski, 2009 WL 1940779, at *2; Tumas, 2007 WL 2228695, at *2. The
privilege does not extend to purely factual material or documents addressing an agency’s final
decision on a policy or its implementation. Enviro Tech Int’l, Inc., 371 F.3d at 374; Farley, 11
F.3d at 1389; Sronkoski, 2009 WL 1940779, at *2.
Defendants have complied with the procedural requirements for their assertion of
privilege. The declaration of Kevin Casey sufficiently sets forth his authority to claim the
privilege and his rationale for doing so. Referencing the privilege log, Casey describes the
withheld documents by specific Bates number and by category based on his reason for nondisclosure. (Casey Decl. ¶¶ 6–8.) He states that all of the documents are pre-decisional and
“contain communications, opinions, recommendations and deliberations that are part of the
procedure through which DHS formulates decisions and policies.” (Id. ¶ 5.) For example, he
describes the second category as document concerning “proposed policies and procedures at
Murray Developmental Center.” (Id. ¶ 6.) He identifies several reasons for preserving
confidentiality of these documents, including their reflection of internal DHS deliberations and
of DHS recommendations to the Governor and other decisionmakers. (Id. ¶ 8.) While we are
sensitive to Plaintiffs’ concern that Casey’s declaration is too generic, we are equally sensitive to
the reality that it is hard to be very specific without violating the confidences the deliberative
process privilege is meant to protect.

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We find that Defendants have also established that the documents are predecisional and
deliberative. Plaintiffs argue that the withheld documents—all of which are dated within the last
nine months—cannot be predecisional or deliberative because Defendants decided to close
Murray in early 2012. (Resp. at 3.) That may be, but Plaintiffs’ case does not rest solely on the
initial selection of Murray for closure. Their claims also focus significantly on interim decisions
made about the transition process, including resident assessments and communications about
available options. The withheld documents touch on these and related issues. Deliberations
concerning how to close Murray, as a practical matter, remain ongoing. In light of these unique
circumstances, and despite the fact that Defendants lamentably did not specify which decision is
reflected in which document, we conclude that these documents fall within the scope of
privilege.
C.

Plaintiffs’ Particularized Need for the Documents
Because Defendants successfully invoked the privilege, Plaintiffs have the burden of

showing their particularized need for the withheld documents. Farley, 11 F.3d at 1389; Tumas,
2007 WL 2228695, at *5; Evans, 231 F.R.D. at 316. As we balance the need for disclosure
against Defendants’ need for confidentiality, we consider:
(1) the relevance of the documents to the litigation; (2) the availability of other
evidence that would serve the same purpose as the documents sought; (3) the
government’s role in the litigation; (4) the seriousness of the litigation and the issues
involved in it; and (5) the degree to which disclosure would tend to chill future
deliberations within government agencies, that is would hinder frank and
independent discussion about governmental policies and decisions.
Ferrell, 177 F.R.D. at 429 (quoting Edgar, 964 F. Supp. at 1209); see Tumas, 2007 WL
2228695, at *5; Evans, 231 F.R.D. at 316.
1.

Relevance
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a.

Categories 1–4 and 6–8

Having reviewed in camera every document submitted, we conclude that documents in
seven of the eight categories are relevant. As Defendants indicated, the documents in the first
category concern needs, requests, and sources of CILA funding. Funding of CILAs and SODCs
is clearly an issue in the litigation, highly relevant both to Plaintiffs’ claims and Defendants’
likely affirmative defenses. Plaintiffs indicate that Defendants already provided deposition
testimony on funding issues, (see Resp. at 4 & Ex. B), and we see no reason these documents
would not be relevant as well.
The second category of documents is also particularly necessary to Plaintiffs’ claims.
These documents reflect Defendants’ internal discussions about policies and procedures for
actually closing Murray, such as what meetings should take place, what should be discussed, and
who should be present. The documents address who is involved in important transition-related
decisions and what information is available to residents and their guardians.3 These documents
go directly to the questions raised in Plaintiffs’ complaint, which alleges that Murray residents
are being forced to relocate to CILAs in the absence of any other meaningful choice.
The third category of documents includes three versions of a draft policy addressing
ACCT housing options. The draft policy discusses core principles underlying the ACCT
process, which is apparently underway for Murray residents, as well as requirements flowing
from those principles. The requirements discussed shed some light on the process of selecting

3

In their privilege log, Defendants claim that three documents within this category are
also protected by the marital communications privilege. The documents apparently were sent
from Mary Casey to Kevin Casey but no other details are provided. Because Defendants have
not supported this claim of privilege or explained why it should apply, they may not rely on it at
this time.
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alternative residential options for Murray residents. The fourth category of documents similarly
concerns whether, and what type of, housing options might be available upon the closure of
Murray. For example, the document identified as DP DHS 257–260 identifies specific
challenges for placing Murray residents and options for securing necessary housing
development. The documents within the third and fourth categories are undisputedly relevant to
Plaintiffs’ claims, which focus on their alleged deprivation of choice in residential options.
We turn then to the sixth and seventh categories, which generally discuss staffing and
management issues. For example, the proposals constituting the sixth category suggest
additional positions—a Re-Balancing Unit—to assist on-site with SODC closures and related
follow-up duties. The correspondence and proposals included in the seventh category
recommend a regional management structure, including a support team, that could oversee and
support SODC closures consistent with the Rebalancing Initiative. Both sets of documents
describe certain organizational needs created by the Rebalancing Initiative and the closing of
SODCs like Murray. The documents identify groups of people who Defendants feel should play
a role in the closures, to one degree or another, to meet those organizational needs. As with
many of the documents submitted for our review, we cannot predict whether these materials will
ultimately prove beneficial, prejudicial, or neutral as potential evidence, for either party.
Nonetheless, the sixth and seventh categories contain relevant documents.
The eighth category consists of a single email summarizing a weekly staffing meeting, at
which the participants discussed potential changes to policies concerning eligibility for services
for the developmentally disabled. This email suggests a change to the Eligibility Protocol for
individuals who transition out of SODCs. Although, on its face, the email does not reveal a

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specific consequence of the proposed change, this discussion is relevant to the determination of
services for Murray residents who transition elsewhere.
On the whole, the documents described above are relevant and, in some instances,
necessary to Plaintiffs’ claims.4 Plaintiffs allege, among other things, that Defendants have
intentionally discriminated against them and their wards. Defendants’ reasoning behind the
decision to close Murray, how to close Murray, and where to place its current residents, are
therefore central issues to be litigated. These documents reflect different aspects of Defendants’
decisionmaking process, and their relevance weighs heavily in favor of disclosure.
b.

Category 5

Finally, we evaluate the relevance of the fifth category of documents, which include
comments about proposed changes to an Illinois statute. That statute, 405 ILCS 30/4.6, governs
what happens to the net proceeds from a sale of state land that follows the closure a facility
previously operated to care for the mentally ill or the developmentally disabled. The statute, for
example, requires that such net proceeds should be used to provide services and supports for
individuals with mental health or developmental disabilities needs. Having reviewed these
documents, we conclude that they are not relevant to the claims or defenses asserted in this
lawsuit. Neither the statute, nor the proposed changes, nor Defendants’ opinions thereon, have
any bearing on Plaintiffs’ claims. The statute concerns how the State will direct proceeds from
the hypothetical sales of land in the future, following unspecified facility closures. It does not

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Defendants argue that Plaintiffs’ assertion of particularized need is conclusory and that
they have not shown how these internal documents could be relevant. (Reply at 3–4.)
Defendants fail to appreciate the difficulty of Plaintiffs’ position in attempting to show a need
for documents they have not seen. We are sensitive to Plaintiffs’ plight in asserting need, as we
have been sensitive to Defendants’ plight in asserting privilege.
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touch on whether Murray, or any SODC, should be closed, when, or how. It does not materially
address funding for any particular location or type of facility within the State health system. The
documents in this category do not address these issues or reveal Defendants’ intent underlying
the conduct challenged by Plaintiffs. Accordingly, Plaintiffs cannot show a particularized need
for this fifth set of documents.
2.

Other Factors Relevant to Balancing the Parties’ Respective Needs

As to all other document categories, however, we consider the remaining factors relevant
to assessing Plaintiffs’ need. The second factor asks whether Plaintiffs could obtain the same
information from sources other than the withheld documents. For the most part, Defendants do
not argue that this information is available elsewhere. They contend that they have already
disclosed details about the second category of documents—concerning policies about Murray
and its closure—because they produced drafts of the discharge policy that they shared during
discussions about the policy with AFSCME. (Reply at 4.) Even if Defendants provided some
information from this category, nothing is as likely to reveal their underlying intent as their own
internal discussions on this most critical topic. Mulligan v. Vill. of Riverside, No. 11 C 8200,
2013 WL 1340581, at *2 (N.D. Ill. Apr. 1, 2013) (“Because Mulligan is alleging that the Village
wrongfully discriminated against him, there is a particularized need for the information because
the Village’s intent is directly at issue.”); Anderson, 2001 WL 826878, at *4 (“Proof of such
[subjective] intent is not easily obtained.”); see also Sronkoski, 2009 WL 1940779, at *3; Bd. of
Educ. of City of Chi., 610 F. Supp. at 700. Both the relevance of the pertinent documents from
these categories “and the unavailability of this precise information in question from other
sources weighs in favor of a finding of particularized need.” Evans, 231 F.R.D. at 317.

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The third and fourth factors also significantly support Plaintiffs’ request for disclosure.
The government is not only a defendant and the pertinent decisionmaker in this case, it is also
the provider of the essential public services at the heart of the dispute. See id. at 317 (noting that
the government’s role as a nonparty weighs against a finding of need); Ferrell, 177 F.R.D. at 430
(holding that “ the government’s obvious direct role in the litigation” favors disclosure).
Without question, this litigation is of the utmost importance for Plaintiffs and their wards, who
allegedly face serious physical and emotional trauma should the assessment and transfer process
continue. This case also has important ramifications for Defendants, who seek to improve
efficiency, to effectuate public policy favoring the de-institutionalization of the disabled when
feasible, and to control the state budget—all worthy goals. And on a broader level, the citizens
of Illinois have an interest in this litigation, which touches on how such closings should be
handled, how the government allocates its public resources for the disabled, and whether our
most vulnerable citizens are receiving appropriate care. Few cases involve such serious
questions with such serious consequences.
The fifth and final factor requires us to gauge “the degree to which disclosure of the
documents . . . would hinder frank and independent discussion about governmental policies and
decisions.” Ferrell, 177 F.R.D. at 429 (quoting Edgar, 964 F. Supp. at 1209); Evans, 231 F.R.D.
at 316. This factor weighs in favor of preserving the deliberative process privilege. Requiring
disclosure of the withheld materials certainly will give Defendants pause, along with their
internal decisionmakers. But we do not expect any initial chill spread by disclosure to deter
Defendants from engaging in thorough, honest deliberations on future policies and decisions.
Ultimately, Plaintiffs’ need for the documents and the importance of the issues raised in this

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litigation decidedly outweigh Defendants’ desire for secrecy. We do not lightly set aside their
confidentiality, and we do so with full confidence that their frank and necessary deliberations
will continue as they fulfill their duties. Under the circumstances present here, however, the
privilege must yield to Plaintiffs’ particularized need.

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CONCLUSION
As set forth above, the deliberative process privilege does not protect the documents
identified by Defendants as categories 1 through 4, and categories 6 through 8. Defendants must
provide these documents to Plaintiffs as soon as possible and, in any event, within three business
hours from the issuance of this opinion. The documents included as category 5 need not be
disclosed, as they are shielded by the privilege. It is so ordered.

________________________________
Honorable Marvin E. Aspen
U.S. District Court Judge
Dated: September 3, 2013

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