Morales v. City of New York et al

Filing 44

ORDER re: 41 Order on Motion to Compel. For all of these reasons, Defendants are directed produce to Plaintiff unredacted copies of the documents they have labeled Priv-Redact 0001 and 0002 no later than one week from the date of this Order. SO ORDERED. (Signed by Magistrate Judge Debra C. Freeman on 12/12/2019) Copies to All counsel (via ECF). (kv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
RICARDO MORALES,

USDCSDNY
DOCUMENT
ELECTRONICALtY FILED ~.
DOC#: _______
DATE FIL~D: 12Jril10J,
I,

Plaintiff,
-against-

'

18cv1573 (JGK) (DF)
ORDER

CITY OF NEW YORK, et al.,
Defendants.
DEBRA FREEMAN, United States Magistrate Judge:

On November 21, 2019, this Court issued an Order (Dkt. 41) finding, inter alia, that
Defendants had not demonstrated that certain otherwise discoverable documents could be
withheld from production or redacted based on a claimed deliberative process privilege, and thus
directing Defendants to produce those documents. More specifically, this Court found that
Defendants had not shown that the communications reflected in those documents were
deliberative and predecisional - requirements for invoking the privilege. This Court, however,
also stated in its Order that Defendants potentially had a valid argument for withholding or
red~cting two documents (marked as Priv-Redact 0001 and 0002), both of which contained
internal email communications, and the Court directed Defendants to provide it with unredacted
copies of those documents for in camera review.
Having received the two documents and reviewed the relevant email communications
contained therein, this Court finds that neither document is protected by the deliberative process
privilege. Although Defendants' letter justifying their invocation of the privilege had described
the documents as reflecting internal deliberation of an executive order regarding deed-restriction
modifications (see Dkt. 38, at 3 (suggesting that this executive order was issued by
Mayor Bill DeBlasio four days after the emails were written)), the emails contain absolutely

no reference, express or implied, to any contemplated executive order or any other City policy or
action. As an alternative rationale for withholding or redacting the documents, Defendants had
contended that the emails feature internal "discussions on what to say to the press regarding the
deed restriction removal process." (Id.) Even setting aside this Court's previously noted
skepticism that discussions of this kind would constitute government policymaking entitled to
protection under the deliberative process privilege (see Dkt. 41, at 8), the emails at issue do not,
in fact, contain any discussions about what to say to the press or any reference to the deedrestriction removal process. The emails, more accurately, reflect the reactions of City officials to
the rumored investigative activities of the press. Defendants have cited no authority, and this
Court is aware of none, supporting the proposition that government officials' mere reactions to
external events, without any deliberative discussion of what agency determination should be
made in response to those events, represent substantive policymaking.
For all of these reasons, Defendants are directed produce to Plaintiff unredacted copies of
the documents they have labeled Priv-Redact 0001 and 0002 no later than one week from the
date of this Order.
Dated: New York, New York
December 12, 2019
SO ORDERED
~

c:tfp____

DEBRA FREEMAN
United States Magistrate Judge
Copies to:
All counsel (via ECF)

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