Floyd et al v. The City of New York et al
Filing
232
MEMORANDUM OPINION AND ORDER #102343: PlaintiffS seek production of all documents related to the creation and implementation of the NYPD'S Operations Order No. 52, dated October 17, 2011 and two other related orders. In this instance, however, because plaintiffs have failed to demonstrate that the documents are issue are relevant and because the final Orders promulgated by the NYPD are as helpful to the plaintiffs as the draft Orders and cover memoranda, defendants' strong interest in encouraging deliberative candor carries their burden of persuasion. Accordingly, plaintiffs' request for these documents is DENIED (Signed by Judge Shira A. Scheindlin on 9/7/2012) (ago) Modified on 9/19/2012 (ft).
"
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------------------- )(
DAVID FLOYD, LALIT CLARKSON,
DEON DENNIS, and DAVID OURLICHT,
on behalf of themselves and all others
similarly situated,
Plaintiffs,
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ELECfF.ONIC/\LLY FILED ~ \
DOC #:
DATE F1LED~
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MEMORANDUM
OPINION AND ORDER
08 Civ. 1034 (SAS)
- againstTHE CITY OF NEW YORK, et al.,
Defendants.
----------------------------------------------------- )(
SHIRA A. SCHEINDLIN, U.S.D.J.:
Plaintiffs seek production of all documents related to the creation and
implementation of the NYPD's Operations Order No. 52, dated October 17,2011,
and two other related orders. The subject of Order 52, which was distributed to all
commands ''by direction of the Police Commissioner" is "Police Officer
Performance Objectives."i Among other things, it mandates that officers engage in
proactive enforcement activities including ''the issuance of summonses, the
stopping and questioning of suspicious individuals, and the arrests of criminals,"
and that "Department managers can and must set performance goals" related to
Operations Order 52 at 1,5.
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those activities. 2
A committee of high-ranking NYPD officials was tasked with making
recommendations to the Commissioner regarding the promulgation of the Orders.
Pursuant to the deliberative process privilege, defendants seek to shield from
disclosure the documents produced by members of that committee. Defendants
have submitted the approximately 1300 pages of documents at issue to the Court
for in camera review, and I have examined a significant portion of them. A large
majority of the pages are from draft versions of the Orders that were circulated
among committee members. A small percentage of pages are cover memos that
summarize changes and express opinions on the Orders. And a very small
percentage constitute Power Point slides discussing the Orders.
The deliberative process privilege protects from disclosure
"documents reflecting advisory opinions, recommendations and
deliberations comprising part of a process by which governmental
decisions and policies are formulated." The privilege is intended
"to enhance the quality of agency decisions, by protecting open
and frank discussion among those who make them within the
Government. ,,3
In order for a document to be covered by the deliberative process
2
[d. at 1.
Davis v. City ofNew York, No. 10 Civ. 699, 2011 WL 1742748, at *2
(S.D.N.Y. May 5,2011) (quoting National Council ofLa Raza v. Department of
Justice, 411 F.3d 350,356 (2d Or. 2005) and Tigue v. United States Dep't of
Justice, 312 F.3d 70, 76 (2d Cir. 2002)).
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privilege, it must be both predecisional and deliberative. 4 As I have previously
explained:
The deliberative process privilege is merely a qualified privilege;
thus when the existence of [the] privilege is established, there is
a need to balance the public interest in nondisclosure against the
need of the particular litigant for access to the privileged
information. Factors favoring disclosure include: (1) the
relevance ofthe requested materials to the requesting party's case,
(2) the importance of the materials to the requesting party's case,
including the availability of the information from alternative
sources, (3) the strength ofthe requesting party's case ... and (4)
the importance ofdisclosure to the public interest. Factors against
disclosure include (1) threats to public safety, (2) the invasion of
government officials' privacy, (3) the weakening of government
programs, and (4) the chilling ofinttrnal candor. 5
In this case, defendants' interest outweighs plaintiffs'. Having
examined the documents, I conclude that they are not relevant to plaintiffs' case
and there is no particular public interest in their disclosure. The documents
primarily address mundane and technical questions regarding how and when
officers should report to their supervisors (i.e., the very topics detailed in
paragraphs four through twenty-two of Order 52).
Plaintiffs pose the following questions as examples of the importance
4
See National Council o/La Raza, 411 F.3d at 356.
Davis v. City o/New York, 2011 WL 1742748, at *2-3 (quoting
MacNamara v. City o/New York, 249 F.R.D. 70, 79 (S.D.N.Y.2008) and King v.
Conde, 121 F.RD. 180, 191-93 (E.D.N.Y. 1988)) (quotation marks omitted).
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of these documents to proving their allegations of deliberative indifference on the
part of defendants:
For example, what ifthe day after this Court's summary judgment
decision someone involved in promulgating Operations Order No.
52 warned that perhaps they should reconsider to prevent the risk
of constitutional violations, and what if a high ranking NYPD
official responded that the order would issue despite that risk?
Who decided to emphasize "can and must"?6
First, in my review of the documents I have seen no references to this
lawsuit or to the constitutional rights of civilians or even any discussion of stops
and frisks (beyond the references to them that appear in the Order). The vast
majority of the edits and comments relate merely to reporting procedures that are
irrelevant to this lawsuit. And defendants were clearly aware of this lawsuit at the
time Order 52 was issued. Second, it does not matter who initially recommended
emphasizing the words "can and must" because, ultimately, the Police
Commissioner ordered that they be emphasized and distributed the order to all
commands. The City is clearly responsible for that decision, regardless of who
initially suggested it.
When asserting the deliberative process privilege, "the burden of
persuasion rests on the party seeking to prevent disclosure" and "that burden is a
heavy one, in view of 'the great weight of the policy in favor of discovery in civil
6
8/24112 Letter from Darius Charney to the Court at 2.
4
rights actions and the normal presumption in favor of broad discovery.",7 In this
instance, however, because plaintiffs have failed to demonstrate that the documents
at issue are relevant and because the final Orders promulgated by the NYFD are as
helpful to plaintiffs as the draft Orders and cover memoranda, defendants' strong
interest in encouraging deliberative candor carries their burden of persuasion.
Accordingly, plaintiffs' request for these documents is DENIED.
SO ORDERED:
III
Dated:
September 7, 2012
New York, New York
Davis, 2011 WL 1742748, at *3 (citing King, 121 F.RD. at 191, and
MacNamara, 249 F.RD. at 80).
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- Appearances
For Plaintiffs:
Darius Charney, Esq.
Center for Constitutional Rights
666 Broadway, 7th Floor
New York, New York 10012
(212) 614-6464
For Defendants:
Susanna Publicker
Assistant Corporation Counsel
New York City Law Department
100 Church Street
New York, New York 10007
(212) 788-8084
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