Stinson et al v. The City of New York

Filing 200

OPINION: For the reasons set forth above, Plaintiff's request for production of the Books is denied. It is so ordered. (See Opinion.) (Signed by Judge Robert W. Sweet on 1/23/2015) (ajs)

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USDCSDNY
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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DOCUMENT
i ELECTRONICALLY FILED
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DATEFI-L-ED-:-+-1-=~..,.....-

SHARIF STINSON, et al.,
Plaintiffs,
10 Civ. 4228
- against OPINION
CITY OF NEW YORK, et al.,
Defendants.

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A P P E A R A N C E S:

Attorneys for the Plaintiffs
COHEN & FITCH LLP
225 Broadway, Suite 2700
New York, NY 10007
By:
Gerald M. Cohen, Esq.
Joshua P. Fitch, Esq.
THE LAW OFFICES OF JON L. NORINSBERG, ESQ.
225 Broadway, Suite 2700
New York, NY 10007
By:
Jon L. Norinsberg, Esq.
QUINN EMANUEL URQUHART & SULLIVAN, LLP
51 Madison Avenue
New York, NY 10010
By:
Stephen R. Neuwirth, Esq.
Steig D. Olson, Esq.
Elinor C. Sutton, Esq.
Attorneys for the Defendant
ZACHARY W. CARTER
CORPORATION COUNSEL OF THE CITY OF NEW YORK
100 Church Street
New York, NY 10007
By:
Steven M. Silverberg, Esq.
Qiana C. Smith-Williams, Esq.

(RWS)

Sweet, D.J.

Plaintiffs Sharif Stinson, Mariam Farnum, Charlene
Finley, Ryburn Walkes, Jamel Towe, Christian Dudley, Jocelyn
Ferdinand, Gary Shaw, Michael Bennett, Chanel Meausa, David
Thompson, Joseph Sarpong, Jeremy Thames, Sean Pettigrew, Leander
Griffin, Brian Morris, Mica Ancrum, Ricardo Jones, Victor
Breland, and Michael Riddick (collectively, "Plaintiffs") have
requested access to inadvertently disclosed documents, namely
the New York City Police Department Briefing Book for fiscal
year 2013 and Topics of the City Council Book (together, the
"Books").

Defendants City of New York and Raymond Kelly, the

Commissioner of the New York Police Department ("NYPD," together
with the City of New York, "Defendants") have asserted privilege
over the Books.

Upon the conclusions set forth below, Plaintiffs'
request is denied.

Background & Prior Proceedings

The facts and prior proceedings in this action are
generally set forth in a prior decision and order of this Court
dated April 23, 2012 granting Plaintiffs' motion for class

1

certification.

See Stinson v. City of New York, 282 F.R.D. 360,

365 (S.D.N.Y. 2012).

Prior proceedings relating to the instant

assertion of privilege are set forth in a prior decision and
order of this Court dated October 10, 2014 denying Plaintiffs
request to retain the Books in their possession for the purposes
of litigating the claim of privilege.

(See Dkt. No. 173.)

Familiarity with these opinions is assumed.

Applicable Standard

Federal Rule of Civil Procedure 26 states that
"[p]arties may obtain discovery regarding any matter, not
privileged, which is relevant to the subject matter involved in
the pending action

"

Fed. R. Civ. P. 26(b) (1).

Rule 26

also provides that when a party withholds documents on the
grounds of privilege, that party must both "expressly make the
claim" and "describe the nature of the documents,
communications, or tangible things not produced or disclosed and do so in a manner that, without revealing information itself
privileged or protected, will enable other parties to assess the
claim."

Fed. R. Civ. P. 26(b) (5) (A).

"The burden is on the

party claiming the protection of a privilege to establish those
facts that are the essential elements of the privileged
relationship."

von Bulow by Auersperg v. von Bulow, 811 F.2d

2

136, 144 (2d Cir. 1987)
City of New York,

(citations omitted); see also In re The

607 F.3d 923, 944-45 (2d Cir. 2010)

("the

party asserting the law enforcement privilege bears the burden
of showing that the privilege applies to the documents in
question")

(citations omitted) .

The Books Are Subject to Deliberative Privilege

The deliberative process privilege is a subspecies of
work-product privilege that "covers documents reflecting
advisory opinions, recommendations and deliberations comprising
part of a process by which governmental decisions and policies
are formulated."

Dep't of the Interior v. Klamath Water Users

Protective Ass'n, 532 U.S. 1, 8 (2001)

(quoting NLRB v. Sears,

Roebuck & Co., 421 U.S. 132, 150 (1975)).

The deliberative

process privilege extends to documents that are "(l)
'predecisional,' i.e.,

'prepared in order to assist an agency

decisionmaker in arriving at his decision,' and (2)
'deliberative,'

~'

. related to the process by

'actually

which polices are formulated.'"

Brennan Ctr. for Justice at NYU

Sch. of Law v. U.S. Dep't of Justice,
2012)

(citation omitted).

697 F.3d 184, 194

(2d Cir.

The purpose of the deliberative

process privilege is to "enhance 'the quality of agency
decisions,' by protecting open and frank discussion among those

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who make them within the Government."
(internal citations omitted).

Klamath,

532 U.S. at 8-9

The privilege is based 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 .
Dep't of Justice,

312 F.3d 70,

If

76

Tigue v. United States

(2d Cir. 2002); see also

Coastal States Gas Corp. v. Dep't of Energy,
(D.C. Cir. 1980).

617 F.2d 854,

866

Courts afford "considerable deference" to the

judgment of the agency,

since the agency is in the best position

to know how to prevent injuring the quality of agency decisionmaking.

NAACP Legal Def.

HUD, No.

07 Civ 3378

Nov. 30, 2007)

& Educ. Fund,

Inc. v. United States

(GEL), 2007 WL 4233008, at *10

(S.D.N.Y.

(citation omitted).

A document is predecisional when it is "prepared in
order to assist an agency decisionmaker in arriving at his
decision."
Cir. 1999)

Grand Cent.

P'ship v. Cuomo, 166 F.3d 473,

482

(2d

(internal quotation marks and citations omitted).

Such documents may include: "recommendations, draft documents,
proposals, suggestions, and other subjective documents which
reflect the personal opinions of the writer rather than the
policy of the agency."

Id.

A document is deliberative if it is:

4

"'actually .
. related to the process by which
policies are formulated.'" Factors used to
determine whether a document is deliberative
include "whether the document '(i) formed an
essential link in a specified consultative
process, (ii) reflects the personal opinions of
the writer rather than the policy of the agency,
and (iii) if released, would inaccurately reflect
or prematurely disclose the views of the
agency.'"

S.E.C. v. Collins & Aikman Corp., 256 F.R.D. 403, 416 (S.D.N.Y.
2009)

(footnotes and citations omitted).

However, "materials

are not to be withheld on the basis of deliberative process
privilege simply because the agency deems them confidential and
would prefer not to disclose them."
9162(KBF), 2013 WL 5549921, at *2
(citations omitted).

Toney-Dick v. Doar, 12 Civ.

(S.D.N.Y. Oct. 3, 2012)

The deliberative process privilege is

qualified: "it does not protect factual matters, matters that
are peripheral to policy formulation, or matters that are
incorporated in the final decision or policy."
York State Educ. Dep't, 248 F.R.D. 383, 388

Alleyne v. New

(N.D.N.Y. 2008)

(citation omitted).

In assessing the assertion of a qualified privilege,
courts must balance the public interest in nondisclosure against
the need of the particular litigant for access to the privilege
information,

keeping in mind that the burden of persuasion rests

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on the party seeking to prevent disclosure.

MacNamara v. City

of New York, 249 F.R.D. 70, 79 (S.D.N.Y. 2008).

Courts in this

Circuit may consider a number of factors:

Factors favoring disclosure include: ( 1) the
relevance of the requested materials to the
[requesting party's] case, (2) the importance of
the materials to the [requesting party's] case,
including availability of the information from
alternative sources, ( 3) the strength of the
[requesting party's] case .
., and (4) the
importance [of disclosure] 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 of
internal candor.

Davis v. City of New York, 08 Civ. 1034(SAS), 2011 WL 1742748,
at *2-3 (S.D.N.Y. May 5, 2011)

(citations omitted).

"Whether

the showing of relevance and need rises to the requisite level
is a discretionary determination that must necessarily be made
on a case-by-case basis."

Kitevski v. City of New York, No. 04

Civ. 7402 (RCC) (RLE), 2006 WL 680527, at *3

(S.D.N.Y. Mar. 16,

2006) .

Broadly speaking, Plaintiffs contend that the
assertion of the deliberative process privilege is inappropriate
in this case because (1) the privilege should not be used in
civil rights cases against police departments;

(2) the privilege

does not apply to any backward-looking sections of the Books, of

6

which the Books, the Plaintiffs contend, contain much;

(3)

Defendants have not met their burden of establishing that the
material relates to a specific policy decision; and (4) the
Books contain a substantial amount of purely factual material,
which is not covered by the privilege and must then necessarily
be produced.

Courts in this Circuit have determined that
deliberative process privilege is applicable in civil rights
litigation involving police departments.
City of New York, 08 CV 1034

See, e.g., Floyd v.

(SAS) (Dkt. Nos. 229, 232)

(upholding defendants' assertion of deliberative process
privilege); Ingles v. City of New York, 01 CV 8279 (DC), 2004 WL
2274653 (S.D.N.Y. Oct. 7, 2004)

(deliberative process privilege

assertion sustained); Thompson v. Lynbrook Police Dep't, 172
F.R.D. 23 (E.D.N.Y. 1997)

(upholding assertion of deliberative

process privilege over intra-departmental memoranda).

Nat'l

Cong. for Puerto Rican Rights v. City of New York, 194 F.R.D. 88
(S.D.N.Y. 2000), cited by Plaintiffs, does not provide a bar to
the privilege's application in the instant action.

In Nat'l

Cong. for Puerto Rican Rights, the briefing documents appeared
to be "news articles, departmental records and other
publications" used to prepare former Mayor Giuliani to testify
before the United States Civil Rights Commission, while here,

7

the Books consist of thought processes of counsel and high
ranking officials regarding topics to be discussed during
oversight hearing testimony.

194 F.R.D. at 97.

Nat'l Cong. for

Puerto Rican Rights holds that the decision about what
collection of already-created materials, such as news articles,
to include in a briefing for testimony is not protected, but
does not speak directly about materials which are original work,
created and formulated specifically for the purposes of
providing carefully vetted testimony, as is what is at issue
here.

1

1 Plaintiffs challenge Defendants'
assertion that "this type of briefing in
advance of legislative testimony has been previously found to be protected
pursuant to the deliberative process" (Oct. 8 Letter at 6) as inapposite
because the decisions Defendants cite concern Freedom Of Information Act
("FOIA") requests made of federal government agencies outside of the private
litigation context.
While it is true that the instant litigation does not
implicate FOIA Exemption 5, which was enacted by Congress "to promote the
full and frank discussion of issues within and among federal agencies," Grand
Cent. P'ship Inc. v. Cuomo, 166 F.3d 473, 484 (2d Cir. 19999), the purpose of
the exemption was "to incorporate the government's common law privileges in
the civil discovery context into FOIA." Bureau of Nat'l Affairs, Inc. v.
U.S. Dep't of Justice, 742 F.2d 1484, 1496 (D.C. Cir. 1984) (citing Envtl.
Prot. Agency v. Mink, 410 U.S. 73, 86 (1973)).
The deliberative process
privilege:

is commonly asserted in actions where a party seeks
documents from the federal government under [FOIA].
Although the privilege is codified in FOIA, see 5 U.S.C. §
552 (b) (5), it is derived from, and still applied as, a
common law privilege in federal court .
. Thus, in
addressing the privilege, district courts in this Circuit
and elsewhere frequently rely on authority applying the
privilege in both FOIA and non-FOIA actions.
MacNamara, 249 F.R.D. 70, 78 n. 6 (S.D.N.Y. 2008) (citations omitted). As
such, analogy to cases involving similar circumstances and documents does not
appear to be inappropriate.

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With respect to Plaintiffs' concerns that information
that is backward-looking or purely factual should be unredacted,
it is one aspect of the deliberative process privilege that
summary factual material used in recommendation documents can be
part of the deliberative process and precluded from disclosure.
MacNamara, 249 F.R.D. at 81.

While the facts themselves are not

generally privileged, the context in which the facts were
written and the fact that they were carefully chosen, worded,
and included discloses opinions and thought processes regarding
the polices contemplated in the Books and which would be
testified to before the City Council.

As such, it is

impractical for the Defendants to parse out and sever "factual"
portions of the Books for production.

2

As to Plaintiffs' assertion that the Defendants have
failed to identify the policy to which the Books are concerned,

2

Susan Petito, Assistant Deputy Commissioner for Legislative Affairs for the
NYPD ("Petito") has noted that:
I personally review all of the summaries prepared by OMAP
staff gleaned from the responses from commands as they are
included in the draft of the Briefing Book.
Sometimes, I
determine that additional information is needed on a
particular topic, and I make sure that the additional
information is obtained from the appropriate source and
included in the Books.
I also edit the Briefing Book as a
whole.
The review and editing stage is vital; it is at
this point that I used my knowledge and expertise to frame
the best possible responses for the Commissioner, keeping
in mind what information is for public disclosure and what
is not.
(Petito Deel. 11 9-10.)

9

Defendants have represented via affidavit that the Books provide
information regarding expenditures and needs of the NYPD - the
Books prepare the Commissioner for testimony at City Council
oversight hearings regarding the preliminary budget process, at
which he must testify regarding the general needs of the police
force.

3

Decisions regarding the resources needed for effective

policing are an adequately significant public policy deserving
of the protection of the deliberative process privilege.
Furthermore, other courts have recognized budgetary
recommendations as protected.

See generally Bureau of Nat'l

Affairs, 742 F.2d 1484; see also Sec. Fin. Life Ins. Co. v.
Dep't of Treasury, Civil No. 03-102

(SBC), 2005 U.S. Dist. LEXIS

6641, at *33 (D.D.C. Apr. 12, 2005); Judicial Watch, Inc. v.
Consumer Fin. Prot. Bureau, 2014 U.S. Dist. LEXIS 40820, at *1315 (D.D.C. Mar. 27, 2014).

3

Specifically, Petito has stated:
The Briefing Book and Topics Book are used to prepare the
Police Commissioner for his testimony before the New York
City Council each year.
Each year, the City Council holds
Oversight Hearings to finaliz[e] the City's Budget . . .
[T]he Books include detailed information concerning the
Department's counterterrorism efforts, including
information pertaining to technology and officer
deployment.
The Books also contain specific information
about the funding/proposed funding of counterterrorism
efforts. Additionally, the Books contain information
pertaining to other strategic crime-fighting initiatives
that reveal enforcement methods and deployment of
resources.

(Petito Deel. 11 4-5, 17.)

10

Plaintiffs also specifically contend that the Books
are not predecisional.

Plaintiffs state that,

from what they

recall of the Books, much of the content included summaries of
prior policies, decisions and events, rather than prospective
analysis of various policy options.

However, Defendants aver

that the Books are predecisional because they are advisory in
that their purpose is to provide the Commissioner with the
information necessary to make informed choices concerning what
policy positions to take before the City Council on a host of
budgetary, legislative and legal positions.

Specifically, Defendants explain, with regard to
process, that the creation of the Books involves a comprehensive
organization of information gathering from officials within
various departments of the NYPD.

(Petito Deel.

~

8.)

That

information is then reviewed and edited by at least one attorney
to be framed into the "best possible responses for the
Commissioner, keeping in mind what information is for public
disclosure and what is not."

(Petito Deel.

~

10.)

Information

is routinely added to the Books and, once the Books are
finalized, various members of the Commissioner's staff begin the
process of preparing the Commissioner to appear as a witness at
the hearing.

(Petito Deel.

~~

12-13.)

11

However:

The "answers" in the [B]ooks are just suggested
responses to the City Council's anticipated
questions.
The Commissioner is free, of course,
to use or not use the response, in whole or in
part, or he can tailor it any way that he
chooses.
It is not uncommon for the Commissioner
not to use one of the proposed "answers"
contained in the Books.
The Commissioner has
final say over the substance of his testimony
before the City Council.

(Petito Deel.

~

11.)

The process undertaken by NYPD staff is

not unlike the creation of upstream recommendations by
subordinates to superiors which lay out suggestions regarding a
particular course of action and which are generally covered by
the deliberative process privilege.
(".

MacNamara, 249 F.R.D. at 81

. a document may be deemed 'deliberative' not only where

it explicitly weighs competing policy alternatives, but also
where it contains a preliminary outline of a policy prepared by
lower-ranking government officials for presentation to a
superior with final policymaking authority"); see also Russell
L. Weaver and James T.R. Jones, The Deliberative Process
Privilege, 54 Mo. L. Rev. 279, 291-92

(1989).

As such, the

Books are deemed predecisional.

Additionally, based on the descriptions of the
creation process and for the reasons discussed above, the Books
are also deemed deliberative because they reflect collective
"deliberations comprising part of a process by which

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governmental decisions and policies are formulated," Grand Cent.
P'ship, 166 F.3d at 482.

Attorney-Client Privilege, Work Product Privilege, and Law
Enforcement Privilege, and Relevancy Arguments Are Moot

Having found that the deliberative process privilege
applies to the Books, Defendants' assertions of attorney-client
privilege, work-product privilege, law enforcement privilege,
and relevancy, and Plaintiffs objections, are denied as moot.
It is worth noting, however, that in the event that the
deliberative process privilege did not apply, it is unlikely
that the application of most of the other privileges, and the
relevancy objections, would be appropriate, given the narrow
construction of attorney-client communications, Fed. Hous. Fin.
Agency v. HSBC N. Am. Holdings,

Inc., No. 11 Civ. 6189(DLC),

2014 WL 1327952, at *l (S.D.N.Y. Apr. 3, 2014)

("The mere fact

that attorneys are involved in a communication does not cloak it
with privilege.") and the fact that the Books cannot credibly be
said to have been prepared in anticipation of litigation, Nat'l
Cong. for Puerto Rican Rights,

194 F.R.D. at 109 (the work-

product privilege "does not apply to [m]aterials assembled in
the ordinary course of business, or pursuant to public
requirements unrelated to litigation").

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Conclusion

For the reasons set forth above, Plaintiffs' request
for production of the Books is denied.

It is so ordered.

Dated:

New York, New York
January
2015

J-j,

Robert W. Sweet
U.S.D.J.

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