E.B. v. New York City Board of Education

233 F.R.D. 289, 2005 U.S. Dist. LEXIS 35898, 2005 WL 3263888
CourtDistrict Court, E.D. New York
DecidedDecember 1, 2005
DocketNo. CV 2002-5118CPSMDG
StatusPublished
Cited by15 cases

This text of 233 F.R.D. 289 (E.B. v. New York City Board of Education) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
E.B. v. New York City Board of Education, 233 F.R.D. 289, 2005 U.S. Dist. LEXIS 35898, 2005 WL 3263888 (E.D.N.Y. 2005).

Opinion

ORDER

GO, United States Magistrate Judge.

Plaintiffs are a class of disabled children who bring this action against defendants the New York City Board of Education, the New York City Department of Education (“DOE”), and Joel Klein, the Chancellor of the New York City School District, alleging violations of 42 U.S.C. § 1983, the Fourteenth Amendment to the United States Constitution, the Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq. (“IDEA”), Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132, et seq. Plaintiffs claim that under defendants’ policies, plaintiffs and other disabled students are illegally excluded from school without notice of their right to a hearing, and that during this period of exclusion they do not receive a free and appropriate public education.

Plaintiffs move to compel defendants to produce documents withheld under a claim that they are protected from disclosure by the deliberative process and/or self-critical analysis privileges. At this Court’s request, defendants submitted the documents at issue for in camera review.1 For the reasons set forth below, plaintiffs’ motion is granted.

DISCUSSION

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.” Tigue v. U.S. Dep’t of Justice, 312 F.3d 70, 76 (2d Cir.2002); Grand Cent. P’ship, Inc. v. Cuomo, 166 F.3d 473, 482 (2d [292]*292Cir.1999). The rationale underlying the privilege is that- “those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process.” Grand Cent., 166 F.3d at 481 (quoting United States v. Nixon, 418 U.S. 683, 705, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974)).

To qualify for protection under the deliberative process privilege, a document must be both “predecisional” and “deliberative.” Tigue, 312 F.3d at 76; Grand Cent., 166 F.3d at 482. A document is predecisional “when it is prepared in order to assist an agency decisionmaker in arriving at his decision.” Tigue, 312 F.3d at 80; Grand Cent., 166 F.3d at 482. The privilege protects “recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency.” Tigue, 312 F.3d at 80; Grand Cent., 166 F.3d at 482. However, “the privilege does not protect a document which is merely peripheral to actual policy formation; the record must bear on the formulation or exercise of policy-oriented judgment.” Tigue, 312 F.3d at 80; Grand Cent., 166 F.3d at 482. The document must have been created to assist the agency in the formulation of a specific decision on policy rather than “part of a routine and ongoing process of agency self-evaluation.” Tigue, 312 F.3d at 80 (quoting Maricopa Audubon Soc’y v. U.S. Forest Serv., 108 F.3d 1089, 1094 (9th Cir.1997)); see also Grand Cent., 166 F.3d at 482 (courts require a showing that “pinpoint[s] the specific agency decision to which the document correlates”). By contrast, explaining or interpreting an existing policy or measuring compliance with existing procedures is not predecisional, and thus is not privileged. See Turkmen v. Ashcroft, No. 02-CV-2307, 2004 U.S. Dist. LEXIS 14537, at *8 (E.D.N.Y. July 29, 2004); Powell v. New York City Health & Hosps. Corp., No. 03 Civ. 3264, 2003 WL 22871908, at *1 (S.D.N.Y. Dec. 4, 2003); Tortorici v. Goord, 216 F.R.D. 256, 258 (S.D.N.Y.2003); Nat’l Congress for Puerto Rican Rights v. City of New York, 194 F.R.D. 88, 97 (S.D.N.Y.2000).

A document is deliberative when it is “actually ... related to the process by which policies are formulated.” Grand Cent., 166 F.3d at 482; Hopkins v. U.S. Dep’t of Hous. & Urban Dev., 929 F.2d 81, 84 (2d Cir.1991). The privilege does not extend to “purely factual, investigative matters” nor “factual observations.” EPA v. Mink, 410 U.S. 73, 89, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973); Grand Cent., 166 F.3d at 482; Hopkins, 929 F.2d at 85. “Thus, factual findings and conclusions, as opposed to opinions and recommendations are not protected.” Reino De Espana v. Am. Bureau of Shipping, 2005 WL 1813017, at *11 (S.D.N.Y. Aug. 1, 2005).

Nor are comments relating to the adequacy of personnel and equipment or other logistical issues protected because they are not policy matters. Haus v. City of New York, No. 03 Civ. 4915, 2004 WL 3019762, at *3 (S.D.N.Y. Dec. 29, 2004); Turkmen, 2004 U.S. Dist. LEXIS 14537, at *16; Nat’l Congress, 194 F.R.D. at 93, 95. Indeed, “routine operating decisions cannot be transformed into policy formulation at the highest levels of government simply because they are made at public institutions.” Mitchell v. Fishbein, 227 F.R.D. 239, 251 (S.D.N.Y.2005) (quoting Torres v. City Univ. of New York, 1992 WL 380561, at *7 (S.D.N.Y. Dec. 3, 1992)); Scott v. Board of Ed. of the City of East Orange, 219 F.R.D. 333, 337 (D.N.J.2004).

Since the deliberative process privilege is a qualified privilege, if it is found to apply, the court must weigh the various competing interests for and against disclosure. See Mr. and Mrs. B v. Bd. of Educ., 35 F.Supp.2d 224, 228 (E.D.N.Y.1998); United States Postal Serv. v. Phelps Dodge Refining Corp., 852 F.Supp. 156, 165 (E.D.N.Y.1994). Factors the courts consider in balancing the parties’ competing interests include:

1) the relevance of the evidence to be protected; 2) the availability of other evidence; 3) the “seriousness” of the litigation and the issues involved; 4) the role of the government in the litigation; and 5) the possibility of future timidity by government employees who will be forced to recognize that their secrets are violable.

[293]*293Phelps Dodge, 852 F.Supp. at 165; Torres, 1992 WL 380561, at *7.

The documents withheld by defendants under the deliberative process privilege can be divided into three categories: 1) draft flowcharts outlining the special education suspension process (EB004897-4902); 2) proposals for DOE’s electronic data management (EB006229-6235); and 3) on-site reviews of suspension centers and suspension hearing centers (EB004903-5012), (EB005041-5112). Draft Flowcharts

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
233 F.R.D. 289, 2005 U.S. Dist. LEXIS 35898, 2005 WL 3263888, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eb-v-new-york-city-board-of-education-nyed-2005.