Martin v. Albany Business Journal, Inc.

• Decision Date: 13 January 1992
• Docket Number: No. 90-CV-299.,90-CV-299.
• Citation: 780 F. Supp. 927
• Parties: Lynn MARTIN, Secretary of Labor, United States Department of Labor, Plaintiff, v. ALBANY BUSINESS JOURNAL, INC. d/b/a Capital District Business Review, Defendant.
• Court: U.S. District Court — Northern District of New York

780 F. Supp. 927

Lynn MARTIN, Secretary of Labor, United States Department of Labor, Plaintiff, v. ALBANY BUSINESS JOURNAL, INC. d/b/a Capital District Business Review, Defendant.

No. 90-CV-299.

United States District Court, N.D. New York.

January 13, 1992.

COPYRIGHT MATERIAL OMITTED

Robert P. Davis, Solicitor of Labor, U.S. Dept. of Labor, New York City (Patricia M. Rodenhausen, Regional Sol., Diane Wade, of counsel), for plaintiff.

Williams & Connolly, Washington, D.C. (John G. Kester, Diana L. Schacht, of counsel), for defendant.

MEMORANDUM-DECISION AND ORDER

McCURN, Chief Judge.

The Secretary of the United States Department of Labor ("DOL") commenced this action in March, 1990 under the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. (1988) ("FLSA").¹ The DOL alleges that certain reporters at the defendant publisher, the Albany Business Journal ("ABJ"), are entitled to back-pay as compensation for overtime work. Jurisdiction is based on 29 U.S.C. § 217 (1988) and 28 U.S.C. § 1331 (West Supp.1991).

The litigation is now in the discovery phase. This motion addresses various disputes that have arisen concerning the permissible breadth of ABJ's discovery.²

I. STATEMENT OF FACTS

The defendant ABJ publishes the Capital District Business Review, a weekly newspaper focussing on business subjects. On March 16, 1990, the DOL filed a complaint in this court against ABJ, alleging that ABJ failed to pay proper "overtime compensation" to its reporters as required by the FLSA. The wages of twelve reporters are at issue. In its answer, ABJ raised as an affirmative defense that the reporters in question were employed in a professional capacity and, as such, were exempt from the FLSA's overtime compensation requirements.³

Discovery is now underway. As part of its discovery, ABJ has sought from DOL the identities and statements of ABJ employees (past and present) who were interviewed by DOL representatives. DOL has objected to this discovery, asserting (1) informant's privilege, and (2) work-product privilege. DOL invoked these privileges through an affidavit submitted by John R. Fraser, the Acting Director of the DOL's Wage and Hour Division. DOL concedes that Fraser has "no personal knowledge of the investigation which led to the filing of this civil action." Pl.Mem. in Support of Motion to Quash (3/7/91), at 2-3.

DOL's privilege objections are the basis of its motion now before the court, for a protective order precluding defendant's discovery of the aforementioned information, pursuant to Fed.R.Civ.P. 26(c).⁴

II. DISCUSSION

Fed.R.Civ.P. 26(b)(1) provides that "parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action...." (emphasis added). DOL's motion to preclude ABJ from obtaining the identities of, and statements and other written materials provided by, employees (past and present) interviewed by DOL representatives is grounded in the claimed existence of two privileges: (1) informant's privilege, and (2) work-product privilege. The court will discuss seriatim the applicability of each privilege to this case.

A. Informant's Privilege

The "informant's privilege" is the government's evidentiary privilege to withhold the identity of persons who provide the government with information of possible violations of law. E.g. Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 627, 1 L.Ed.2d 639 (1957); Brock v. On Shore Quality Control Specialists, Inc., 811 F.2d 282 (5th Cir.1987) (citing numerous instances of application in FLSA context); In re United States, 565 F.2d 19, 22 (2d Cir.1977), cert. denied sub nom, Bell v. Socialist Workers Party, 436 U.S. 962, 98 S.Ct. 3082, 57 L.Ed.2d 1129 (1978). The rule "is founded on the proposition that an informer may well suffer adverse effects from the disclosure of his identity." In re United States, 565 F.2d at 19.⁵ The rule concerning application of the informant's privilege in the Second Circuit is set forth most extensively in In re United States, 565 F.2d at 22-24.

The informant's privilege is not absolute. The Second Circuit instructs that "where the identification of an informer or the production of communications is essential to a fair determination of the issues in the case, the privilege cannot be invoked." In re United States, 565 F.2d at 22-23 (citing, e.g., Roviaro, 353 U.S. at 60-61, 77 S.Ct. at 627-28). Hence, a case-specific "balancing test" is required to determine whether the privilege may be properly invoked in a given case. Id.; On Shore, 811 F.2d at 283.

1. Invocation of the informant's privilege

ABJ argues that the court should not even consider DOL's assertion of the informant's privilege because the privilege was not properly invoked. ABJ argues that the informant's privilege can be invoked only by a formal claim of privilege asserted by the head of the department having control over the requested information, in this case the Secretary of Labor. ABJ also argues that the assertion of the privilege must be based upon the actual personal consideration of the facts of this case by the official, and that the official invoking the privilege must explain why the sought information falls within the scope of the privilege. DOL, of course, disagrees and contends that the privilege was properly invoked in this case by Fraser, the Acting Administrator of DOL's Wage and Hour Division.

The question of whether the "formal claim of privilege" requirement applies to the informant's privilege is apparently one of first impression.⁶ At oral argument, the court asked the parties to provide supplemental briefing on the issue of proper invocation of the informant's privilege. The parties have done so. After considering the arguments and case authority on point, the court concludes that the informant's privilege was not properly invoked in this case.

ABJ correctly stated the standard for proper invocation of the informant's privilege. In sum, the informant's privilege is properly invoked only when it is asserted by a formal claim of privilege lodged by the head of the department having control over the requested information. The "agency head" may delegate his authority to claim the privilege, but only to a subordinate of high authority, and the delegation must be accompanied by guidelines on the use of the privilege. Finally, the assertion of the privilege must based upon actual personal consideration of the facts by that official. Cf. Mary Imogene Bassett Hosp. v. Sullivan, 136 F.R.D. 42, 44 (N.D.N.Y.1991) (Cholakis, J.); Mobil Oil Corp. v. Department of Energy, 520 F.Supp. 414, 416 (N.D.N.Y.1981) (Munson, C.J.).

The applicability of this stringent standard to the informant's privilege is compelled by a simple syllogism, which in turn is supported by two inescapable premises. The first premise is that the informant's privilege is a governmental privilege. The Supreme Court held so nearly thirty-five years ago in the principal informant's privilege case, Roviaro v. United States, 353 U.S. at 59, 77 S.Ct. at 627, when it wrote:

What is usually referred to as the informer's privilege is in reality the Government's privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law.

(emphasis added). Since then, courts having spoken on the issue have also identified the informant's privilege as a governmental privilege. See Brennan v. Glens Falls Nat'l Bank & Trust, 75 Lab.Cas. (CCH) ¶ 33,177, at 46, 787, 1974 WL 301 (N.D.N.Y. 1974) (Foley, J.); Youngblood v. Gates, 112 F.R.D. 342, 347 (C.D.Cal.1985); see also Brock v. R.J. Auto Parts and Serv., Inc., 864 F.2d 677, 679 (10th Cir.1988) ("government's privilege to withhold the identity of persons providing information ..."). No courts have even remotely suggested that the informant's privilege is anything other than a governmental privilege. This premise (that the informant's privilege is a governmental privilege) is hardly extraordinary; a privilege is a "governmental privilege" simply by virtue of the fact that it is uniquely the government's privilege to assert. See Note, Discovery of Government Documents and the Official Information Privilege, 76 Colum.L.Rev. 142, 166 (1976), cited in, e.g., Garber v. United States, 73 F.R.D. 364, 365 (D.D.C.1976), aff'd, 578 F.2d 414 (D.C.Cir.1978). The informant's privilege is one of many governmental privileges.⁷

Second, all government privileges must satisfy specific, formal requirements for proper invocation. United States v. O'Neill, 619 F.2d 222, 225-26 (3d Cir.1980); Carr v. Monroe Mfg. Co., 431 F.2d 384, 388 (5th Cir.1970), cert. denied sub nom, Aldridge v. Carr, 400 U.S. 1000, 91 S.Ct. 456, 27 L.Ed.2d 451 (1971).⁸ This is so regardless of the type of governmental privilege asserted. O'Neill, 619 F.2d at 226; see Coastal Corp. v. Duncan, 86 F.R.D. 514, 517 (D.Del.1980) (applies to all "executive privileges"). The formal invocation requirements have been required for invocation of the military secrets privilege, United States v. Reynolds, 345 U.S. 1, 7-8, 73 S.Ct. 528, 531-32, 97 L.Ed. 727 (1953); the executive privilege, e.g. Black v. Sheraton Corp. of America, 564 F.2d 531, 543 (D.C.Cir.1977); the official information privilege, Garber v. United States, 73 F.R.D. 364, 364-64 (D.D.C.1976); and the law enforcement investigatory privilege, In re Sealed Case, 856 F.2d 268, 271 (D.C.Cir. 1988). Two courts within this district have applied the requirements to the deliberative processes, or predecisional, privilege. Mary Imogene Bassett Hosp. v. Sullivan, 136 F.R.D. 42, 44 (N.D.N.Y.1991) (Cholakis, J.); Mobil Oil Corp. v. Department of Energy, 520 F.Supp. 414, 416 (N.D.N.Y.) (Munson, J.), rev'd on other grounds, 659 F.2d 150 (T.E.C.A.), cert. denied, 454 U.S. 1110, 102 S.Ct. 687, 70 L.Ed.2d 651 (1981).

The conclusion that these two premises yields is that the informant's privilege, being a...