Belbachir v. United States

Filing 124

WRITTEN Opinion entered by the Honorable Philip G. Reinhard on 8/9/2011: For the reasons stated below, the magistrate judge's ruling on plaintiff's motion to compel will not be set aside. Plaintiff's objection is denied. [For further details see order.] Electronic Notices.(jat, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Philip G. Reinhard

CASE NUMBER

08 C 50193

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

8/9/2011

Belbachir vs. United States

DOCKET ENTRY TEXT:

For the reasons stated below, the magistrate judge’s ruling on plaintiff’s motion to compel will not be set
aside. Plaintiff’s objection is denied.

O[ For further details see text below.]

Electronic Notices.

STATEMENT - OPINION
Plaintiff, the Estate of Hassiba Belbachir, objects, pursuant to Fed. R. Civ. P. 72 (a), to the magistrate
judge’s order denying plaintiff’s motion to compel production of an unredacted copy of a document identified
as “bates document 2588.” Defendant, United States of America, opposes release of this document asserting
the deliberative process privilege and the magistrate judge concluded the deliberative process privilege
precluded compelling discovery of the subject document. The magistrate judge’s order will only be modified
or set aside on objection if it “is clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72 (a). The clearly
erroneous standard is highly deferential and “means the district court can overturn the magistrate judge’s
ruling only if the district court is left with the definite and firm conviction that a mistake has been made.”
Miller v. City of Plymouth, No. 09-CV-205, 2011 WL 1458491, *3 (N.D. Ind. Apr. 15, 2011), quoting,
Weeks v. Samsung Heavy Indus. Co., 126 F.3d 926, 943 (7th Cir. 1997). “[T]he district court may not reverse
the magistrate judge’s decision simply because it would have arrived at a different conclusion.” Id., citing
Pinkston v. Madry, 440 F.3d 879, 888 (7th Cir. 2006).
“[D]ocuments reflecting the deliberative or policy-making processes of governmental agencies are
privileged from disclosure.” Enviro Tech Int’l, Inc. v. Envtl Prot. Agency, 371 F.3d 370, 374 (7th Cir. 2004).
“The deliberative process privilege rests on the obvious realization that officials will not communicate
candidly among themselves if each remark is a potential item of discovery.” Id. The deliberative process
privilege applies to predecisional policy discussions. Id. To qualify for the privilege, a document must be
both “antecedent to the adoption of an agency policy” and “actually related to the process by which policies
are formulated.” Id. at 374-75 (internal quotation marks omitted). The document in question is an internal
government email sent March 29, 2005 whose subject line reads “Imprortant (sic). Establishment of Suicide
Reviews.” The magistrate judge, after an in camera review of the document, concluded that “[t]he
information contained in the redacted communication appears to be an attempt by a government
decisionmaker to advise on how to proceed with the formulation of policy in light of certain events. It
constitutes the very type of information that the deliberative process doctrine was created to protect.”
Plaintiff contends the magistrate judge erred in denying the motion to compel production of this
08C50193 Belbachir vs. United States

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STATEMENT - OPINION
document. Plaintiff argues the government failed to properly and timely assert the privilege, thus waiving it
and that even if this failure is overlooked and the privilege is applied, plaintiff has shown a particularized
need for the document that outweighs the interests of the government to withhold it.
Plaintiff contends the following is required to invoke the privilege: “(1) the department head with
control over the matter must make a formal claim of the privilege, after personal consideration of the
problem; (2) the responsible official must demonstrate, typically by affidavit, precise and certain reasons for
preserving the confidentiality of the documents in question; and (3) the official must specifically identify and
describe the documents.” Evans v. City of Chicago, 231 F.R.D. 302, 316 (N.D. Ill. 2005) (internal citations
and quotation marks omitted). Plaintiff points out that the record does not contain any evidence that “the
department head with control over the matter” made a formal claim of privilege after personal consideration.
There is no affidavit by such a “responsible official” demonstrating the “precise and certain reasons for
preserving the confidentiality of the document.” Plaintiff maintains this is fatal to the privilege claim because
it shows the government did not meet the required threshold showing. See Id. However, courts also have
discretion to conduct in camera reviews as an acceptable means of dealing with privilege claims especially
where a small number of documents are at issue. See Maynard v. CIA, 986 F.2d 547, 557-58 (1st Cir. 1993);
Town of Winthrop v. FAA, No. 08-1703, 2009 WL 1260410, *3 (1st Cir. May 8, 2009) (unpublished).1 The
court has inherent power to control discovery and using an in camera inspection to resolve the dispute here
was not clearly erroneous.
The court has reviewed the magistrate judge’s order and the document in question and concludes the
magistrate judge’s decision that the deliberative process privilege covers this document is not clearly
erroneous or contrary to law. The document includes advice and opinion concerning possible future agency
action. It is not directed to policies existing at the time of Ms. Belbachir’s death. It is, as the magistrate judge
observed, “the very type of information that the deliberative process doctrine was created to protect.”
The magistrate judge aslo concluded that plaintiff had not shown a particularized need for the
document. The magistrate judge balanced the needs of the plaintiff against those of the government and
concluded the balance fell in the government’s favor. The key need for plaintiff is to discover information
concerning the policies or practices in place prior to Ms. Belbachir’s death. The magistrate judge concluded
the document would not be essential to plaintiff’s obtaining this information which the magistrate judge saw
as discoverable by other means. This decision is not clearly erroneous.
For the foregoing reasons, the magistrate judge’s ruling on plaintiff’s motion to compel will not be set
aside. Plaintiff’s objection is denied.

1. While these cases arise under the Freedom of Information Act, 5 U.S.C. § 552, most cases
dealing with the deliberative process privilege do so and the deliberative process privilege in the
FOIA is coextensive with the common law deliberative process privilege. See In re U.S., Misc.
No. 885, 2009 WL 905475 , *5, n. 3 (Fed. Cir. 2009) (unpublished).

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