Noel v. City of New York

357 F. Supp. 3d 298
CourtDistrict Court, S.D. Illinois
DecidedJanuary 23, 2019
Docket15-CV-05236 (LTS) (KHP)
StatusPublished
Cited by3 cases

This text of 357 F. Supp. 3d 298 (Noel v. City of New York) is published on Counsel Stack Legal Research, covering District Court, S.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Noel v. City of New York, 357 F. Supp. 3d 298 (S.D. Ill. 2019).

Opinion

KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE

In light of the Honorable Laura Taylor Swain's December 12, 2018 Order, this Court directed the parties to supplement their prior briefing on deliberative process privilege as to certain documents submitted for in camera review in late 2017 and addressed in this Court's February 1, 2018 privilege decision. (Doc. Nos. 259, 655, 661.) See *302Noel v. City of New York , No. 15-cv-05236 (LTS) (KHP), 2018 WL 6786238 (S.D.N.Y. Dec. 12, 2018) ; Winfield v. City of New York , No. 15-cv-05236 (LTS) (KHP), 2018 WL 716013 (S.D.N.Y. Feb. 1, 2018). Judge Swain's Order also impacted this Court's September 13, 2018 decision as to a PowerPoint presentation that the City claimed was subject to the deliberative process privilege and was substantially identical to two of the documents addressed in the Court's February 1 decision (referred to collectively as the "Clawback Documents"). (Doc. No. 547.) Eight documents in total are at issue.1 The parties submitted their supplemental briefs on January 11, 2019. This Court has now re-reviewed the documents and the parties' original, as well as the supplemental briefing. Its analysis, consistent with Judge Swain's December 12 Order, is discussed below.

DISCUSSION

I. Legal Standard

The deliberative process privilege, also referred to as the executive privilege, protects "documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." NLRB v. Sears, Roebuck & Co. , 421 U.S. 132, 150, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975) (internal quotation marks and citation omitted). It applies to both the ultimate executive decision-maker and the executive's staff members. See Hopkins v. H.U.D. , 929 F.2d 81, 85 (2d Cir. 1991) (work product, opinions, and recommendations of staff are part of the deliberative process). It also applies to both inter- and intra-agency deliberative communications. See In re Delphi Corp. , 276 F.R.D. 81, 84 (S.D.N.Y. 2011) (citing Tigue v. U.S. Dep't of Justice , 312 F.3d 70, 77 (2d Cir. 2002) ).

The privilege " 'protects the decision-making processes of the executive branch in order to safeguard the quality and integrity of governmental decisions.' " Marisol A. v. Giuliani , No. 95-cv-10533 (RJW), 1998 WL 132810, at *6 (S.D.N.Y. Mar. 23, 1998) (quoting Hopkins , 929 F.2d at 84 ). It is motivated by "the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news" and the desire to "enhance the quality of agency decisions by protecting open and frank discussion among those who make them within the Government." Fed. Hous. Fin. Agency v. HSBC N. Am. Holdings Inc. , No. 11-cv-6189 (DLC), 2014 WL 1909446, at *1 (S.D.N.Y. May 13, 2014) (quoting Dep't of Interior v. Klamath Water Users Protective Ass'n , 532 U.S. 1, 8-9, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001) ); see also Marisol A. , 1998 WL 132810, at *6 (the deliberative process privilege is premised upon the notion that "effective decision-making requires *303a free flow of information amongst government officials and that this free flow would be constrained if these communications had the potential to be revealed to outsiders") (internal citations omitted).

The privilege protects the documents and communications used in the decision-making process when such documents are both (1) pre-decisional and (2) deliberative. Marisol A. , 1998 WL 132810, at *6. A document is "pre-decisional" when it is prepared to aid the decisionmaker in arriving at a decision. Hopkins , 929 F.2d at 84 ; Marisol A. , 1998 WL 132810, at *6. In assessing whether a document is pre-decisional, courts also consider whether the government can: "(i) pinpoint the specific agency decision to which the document correlates, (ii) establish that its author prepared the document for the purpose of assisting the agency official charged with making the agency decision, and (iii) verify that the document precedes, in temporal sequence, the decision to which it relates." Nat'l Congress for Puerto Rican Rights ex rel. Perez v. City of New York , 194 F.R.D. 88, 92 (S.D.N.Y. 2000) (internal quotation marks and citation omitted). This assessment is designed to distinguish pre-decisional documents from those that are "merely part of a routine and ongoing process of agency self-evaluation," which are not covered by the privilege. Tigue , 312 F.3d at 80 ; see also Charles v. City of New York , No. 11-cv-0980 (KAM) (JO), 2011 WL 5838478, at *1 (E.D.N.Y. Nov. 18, 2011).

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