King v. Tulsa County Sheriff's Office et al

Filing 68

OPINION AND ORDER by Magistrate Judge T Lane Wilson ; granting in part and denying in part 58 Motion to Compel (Re: 65 Minute Order, ) (crp, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
DONALD FRANCIS KING,
Plaintiff,
vs.
STANLEY GLANZ, in his official
capacity as Sheriff of Tulsa County,
and LAMONT HILL,
Defendants.

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Case No. 12-cv-137-JED-TLW

OPINION AND ORDER

Before the Court is plaintiff’s Motion to Compel. (Dkt. # 58). The Court previously

entered a partial ruling (dkt. # 65), taking under advisement the issue of the application of the
deliberative process privilege to certain documents related to a December 16, 2010 hearing of the
Critical Incident Review Board. At a hearing on December 9, 2013, the Court stated that it would
review the documents in camera to determine whether the privilege applied. (Dkt. # 67).
Defendants produced those documents on December 10, 2013. The Court has reviewed those
documents and, for the reasons that follow, holds that plaintiff’s motion to compel should be
GRANTED with respect to those documents.
BACKGROUND INFORMATION
Plaintiff is suing defendants for damages for civil rights violations resulting from an
officer-involved shooting. (Dkt. # 44). Plaintiff’s Third Amended Complaint alleges that Tulsa
County Sheriff’s Deputy Lamont Hill shot plaintiff “without warning or justifiable reason”
during a domestic disturbance call involving plaintiff as the perpetrator. Id. Plaintiff contends
that defendant Hill used excessive force and that defendant Glanz is liable under the theories of
respondeat superior and negligent training, supervision, and discipline. Id.

MOTION TO COMPEL
During the discovery period, plaintiff served interrogatories and requests for production.
Among those requests was Request for Production 4 to defendant Glanz, asking for “copies of
any documents that are a result of any administrative proceedings related to Lamont Hill’s
activities as a law enforcement officer while employed by the Tulsa County Sheriff’s Office.”
(Dkt. # 58, Ex. C). In response, defendant Glanz asserted a number of objections, including an
assertion that “the Critical Incident Review of this incident is privileged. (Deliberative Process
privilege.)”1 Id.
Plaintiff argues that the deliberative process privilege is not applicable for two reasons.
(Dkt. # 58). First, plaintiff contends that any deliberations or discussions contained in the Critical
Incident Review are not the type of communication intended to be privileged because they “are
not deliberations that seek to create or affect Policy or render a decision that would create or
affect Policy. They are reviews where the facts and circumstances of a shooting incident are
discussed in light of already existing Policies and Procedures.” Id. Second, plaintiff argues that
the information presented at hearings such as the Critical Incident Review is factual, which is not
subject to the privilege. Id. Defendant Glanz argues that the review board process, as described
in the undersheriff’s affidavit attached to the response, is both predecisional and deliberative.
(Dkt. # 63).

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The Critical Incident Review is an administrative hearing routinely held after officer-involved
shootings that evaluates “whether the employee adhered to departmental policy, and whether
there are any recommendations related to changes in policy, training, equipment, or tactical
issues, following an open discussion of those topics.” (Dkt. # 63-3, Affidavit of Tulsa County
Undersheriff Tim Albin). In cases where the officer did not follow the policy, the Board “must
then make recommendations regarding what personnel actions should be taken relative to the
affected employee.” Id.
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ANALYSIS
Rules for Applying the Deliberative Process Privilege
The deliberative process privilege protects “documents reflecting advisory opinions,
recommendations and deliberations comprising part of a process by which governmental
decisions and policies are formulated” from discovery. NLRB v. Sears, Roebuck & Co. 421 U.S.
132, 150, 92 S.Ct. 1504, 44 L.Ed.2d 29 (1975) (internal quotations and citation omitted). The
privilege exists to “protect[] open and frank discussion” among agency personnel in order “to
enhance ‘the quality of agency decisions.’” Department of Interior v. Klamath Water Users
Protective Ass’n, 532 U.S. 1, 8-9 (2001) (quoting Sears, Roebuck, 421 U.S. at 151). The
privilege serves the secondary purpose of “prevent[ing] the premature disclosure of proposed
policies, and avoids ‘misleading the public by dissemination of documents suggesting reasons
and rationales for a course of action which were not in fact the ultimate reasons for the agency’s
action.’” Trentadue v. Integrity Comm., 501 F.3d 1215, 1226 (10th Cir. 2007) (quoting Coastal
States Gas Corp. v. Department of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)). The privilege
protects both intra-agency and inter-agency documents. See Renegotiation Bd. v. Grumman
Aircraft Engineering Corp., 421 U.S. 168, 188, 95 S.Ct. 1491, 44 L.Ed. 2d 57 (1975).
To qualify for protection under the privilege, the party seeking to invoke the privilege
bears the burden of proving that the document at issue is both predecisional and deliberative.
Trentadue, 501 F.3d at 1226, 1227 (citations omitted). The case law does not articulate a specific
burden of proof, but an agency can meet its burden through the submission of evidence such as
affidavits, a detailed privilege log, and other evidence. See, e.g., Loving v. Department of
Defense, 550 F.3d 32, 41 (D.C. Cir. 2008); Boyd v. Department of Justice, 475 F.3d 381, 392
(D.C.Cir. 2007); Coastal States, 617 F.2d at 861. Even if the agency meets its burden, however,

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the privilege is a qualified one and can be “overcome by a sufficient showing of need.” In re
Sealed Case, 121 F.3d 729, 738 (D.C. Cir. 1997).
A document is predecisional if it is “‘prepared in order to assist an agency decisionmaker
in arriving at his decision.’” Trentadue, 501 F.3d at 1227 (quoting Renegotiation Bd., 421 U.S. at
184). Several circuit courts, including the District of Columbia Circuit, apply a temporal test to
determine whether a document is predecisional. See, e.g., Enviro Tech Int’l v. United States
Environmental Protection Agency, 371 F.3d 370, 375 (7th Cir. 2004) (stating that a predecisional
document is “‘actually [a]ntecedent to the adoption of an agency policy,’”) (citations omitted);
Texaco Puerto Rico, Inc. v. Department of Consumer Affairs, 60 F.3d 867, 884 (1st Cir. 1995);
National Wildlife Fed’n v. United States Forest Svc., 861 F.2d 1114, 1117 (9th Cir. 1988);
Senate of the Commonwealth of Puerto Rico on Behalf of Judiciary Comm. v. United States
Dep’t of Justice, 923 F.2d 574, 585 (D.C. Cir. 1987) (holding that “[a] document is
‘predecisional’ if it precedes, in temporal sequence, the ‘decision’ to which it relates.”).
The Tenth Circuit has not adopted a temporal test. Instead, the Tenth Circuit has
indicated that courts should consider the substance of the document and the circumstances of
each case. See Casad v. United States Dep’t of Health & Human Svcs., 301 F.3d 1247, 1252
(10th Cir. 2002). In Casad, the Tenth Circuit cited two factors that are “helpful” in determining
whether a document is predecisional: (1) “the ‘nature of the decisionmaking authority vested in
the officer or person issuing the disputed document;’” and (2) “the relative positions in the
agency’s ‘chain of command’ occupied by the document’s author and recipient.” Casad, 301
F.3d at 1252) (citations omitted).2 Additionally, at least one district court within the Tenth
Circuit has interpreted the Supreme Court’s holding in Sears, Roebuck as rejecting the temporal

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Notably, the Tenth Circuit derives these factors from cases issued from the District of
Columbia Circuit Court, which applies a temporal test.
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test. See Securities and Exchange Comm’n v. Naccio, 704 F.Supp.2d 1099, 1110-1111 (D.Colo.
2010). In Naccio, the district court held that the predecisional test “is one that requires
examination of the advice being given, its connection to an agency decision, and the purpose that
advise [sic] is intended to serve. The fact that the discussion post-dates a particular decision does
not automatically render that discussion discoverable.” Naccio, 704 F.Supp.2d at 1110. The
Supreme Court, in Sears, Roebuck, did acknowledge that “the line between pre-decisional
documents and postdecisional documents may not always be a bright one” and cited
circumstances in which even a final agency decision could be considered predecisional if it
functioned as a guide for cases yet to be determined. Sears, Roebuck, 421 U.S. at 153, n. 19.
The Tenth Circuit recognizes that identifying a document as deliberative is a difficult
task. See Trentadue, 501 F.3d at 1227. The Court must review each document and consider both
its contents and its context “because the deliberative process privilege is so dependent upon the
individual document and the role it plays in the administrative process.” Coastal States Gas
Corp., 617 F.2d at 867. Documents that are deliberative and, therefore, covered under the
privilege 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. at 866. Factual materials do not qualify as deliberative unless its “disclosure
‘would so expose the deliberative process within an agency that it must be deemed exempted.’”
Trentadue, 501 F.3d at 1228 (quoting Mead Data, Inc, v. United States Dep’t of the Air Force,
566 F.2d 22, 256 (D.C. Cir. 1977)). The Tenth Circuit exempts factual materials only if (1) “they
are inextricably intertwined with deliberative materials” or (2) “their disclosure would reveal
deliberative material.” Id. at 1229.

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Application of the Rules to the Documents Listed in the Privilege Log
As an initial matter, defendant Glanz has offered only an affidavit from the undersheriff
to establish that the documents listed in the privilege log (dkt. # 63, Ex. 2) are subject to the
deliberative process privilege. The undersheriff’s affidavit describes generally the purpose of the
Critical Incident Review Board. However, neither the affidavit nor defendant Glanz’s response
raises any argument with respect to the particular documents at issue, other than to argue that
they were created as a result of a proceeding that would likely produce predecisional,
deliberative documents. While the purpose of the review board may lend itself to the creation of
documents, such as transcripts or reports, that are subject to the deliberative process privilege,
defendant Glanz may not rely on this evidence generally to establish that particular documents
are privileged. As Trentadue states, the party seeking to invoke the privilege bears the burden of
proving that the document at issue is both predecisional and deliberative. Trentadue, 501 F.3d at
1226, 1227 (citations omitted). Defendant Glanz has not met this burden.3
Nonetheless, the undersigned has reviewed the documents identified in the privilege log
in camera and will address the application of the rules to each document in turn.
Audio CD of the December 16, 2010, Hearing of the Critical Incident Review Board
The Critical Incident Review Board met on December 16, 2010, to review the facts and
circumstances of the shooting. At that hearing, defendant Hill described the events that led to the
shooting. His statements resemble those that one would expect to hear during a deposition or
during testimony at trial. While these facts were elicited prior to the Board’s determination, they

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Counsel for defendant Glanz might argue that he was not provided an opportunity to supply
evidence to meet this burden with respect to each individual document, as opposed to the process
as a whole. But no such request was made. More importantly, were the Court to perceive a need
for additional evidence an opportunity to provide it would have been provided. After having
reviewed the documents, the Court perceives no such need.
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are purely factual in nature; therefore, this portion of the audio CD is not deliberative. See
Trentadue, 501 F.3d at 1228, 1229.
Following defendant Hill’s statements, the Board members cast their vote to determine
whether defendant Hill’s actions were within policy. Those votes were made without any
discussion among the members of the Board.4 Accordingly, the votes taken are not deliberative
because they do not qualify as “recommendations, draft documents, proposals, suggestions, and
other subjective documents which reflect the personal opinions of the writer rather than the
policy of the agency.” Coastal States Gas Corp., 617 F.2d at 866.
For these reasons, the Court finds that the entire audio CD is not subject to the
deliberative process privilege and should be produced.
Review Board Form
This two-page form is also factual in nature. It contains basic information about plaintiff,
about defendant Hill, and sets forth, without comment, the Board’s recommendation of the action
to be taken. Accordingly, the Court finds that this form is not subject to the deliberative process
privilege and should be produced.
Memorandum Dated December 16, 2010
This memorandum summarizes the facts revealed during the hearing on December 16,
2010. It is not predecisional because it records both the content of the hearing and the outcome.
Like the audio CD of the hearing, it is also factual in nature and contains no information
regarding any deliberations among the members of the Board. The Court notes that the memo
specifically states that “[t]he Board made no recommendations.” The author of the
memorandum, Deputy Clint Caskey, includes no personal thoughts or opinions – the content is

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The audio CD appears to run continuously from the beginning of the hearing through the vote;
therefore, the undersigned presumes that there were no deliberations.
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purely a written summary of the hearing. The Court finds that this memorandum is not subject to
the deliberative process privilege and should be produced.
Sketch
The sketch is a drawing of the scene, created by defendant Hill as he gave his statement
to the Critical Incident Review Board. It was intended to serve as a visual aid to the Board
members reviewing the evidence during the hearing. Like defendant Hill’s statements, it is
factual in nature. Accordingly, the Court finds that the sketch is not subject to the deliberative
process privilege and should be produced.
Additional Analysis
As a final note, the Court has researched the application of the deliberative process
privilege to hearings involving officer-involved shootings. The Court found two cases that
support the analysis conducted supra. The first case, Kirk v. Kulwicki, 2008 WL 1882690 (E.D.
Mich. April 24, 2008) (unpublished)5 involved an identical claim – a civil rights action in which
an officer was accused of using excessive force by shooting the plaintiff. The district court found
that the portions of the report that contained “evaluative material” were subject to the privilege,
but that the remainder of the report, specifically “the facts upon which an agency’s decisions are
based,” were subject to discovery. Id. at *1. Defendants were ordered to produce a redacted copy
of the report. See id. In the second case, Duenez v. City of Manteca, 2013 WL 684654, *12 (E.D.
Cal., February 22, 2013) (unpublished), another civil rights action alleging violations resulting
from a fatal officer-involved shooting, the district court held that the use of the deliberative
process privilege was not proper “in relation to internal affairs investigations and records of
witness/police officer statements, as these communications are not designed to contribute to the

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10th Cir. R. 32.1 provides that “[u]npublished opinions are not precedential, but may be cited
for their persuasive value.”
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formulation of important public policy and are routinely generated.” Id. While the Court does not
adopt this wholesale rejection of the privilege, this persuasive authority supports the Court’s
holding that the privilege does not apply to the documents contained in defendant Glanz’s
privilege log.
CONCLUSIONS
For the reasons set forth, plaintiff’s motion to compel (dkt. # 58) is GRANTED with
respect to the issue of the deliberative process privilege. Defendant Glanz shall produce the
documents listed in the privilege log, dkt. # 63, Ex. 2,6 on or before December 20, 2013, unless
defendant intends to appeal this decision, in which case he shall provide written notice of such
intent to plaintiff, and the documents shall be produced within three business days of a decision
by the District Court, so long as doing so will not be inconsistent with the District Court’s
decision. For administrative purposes, the Court notes that defendant’s motion to compel, in its
entirety, is GRANTED IN PART and DENIED IN PART, in light of the Court’s previous
rulings on the remaining issues raised in the motion. (Dkt. # 65). The parties will bear their own
fees and costs.
SO ORDERED this 16th day of December, 2013.

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The Court notes that defendant Glanz provided the Court with the original sketch for in camera
review. Counsel for defendants shall make arrangements with the courtroom deputy to retrieve
the packet of documents produced for in camera inspection.
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