New York v. U.S. Dep't of Commerce

• Court: U.S. District Court — Southern District of New York
• Writing for the Court: JESSE M. FURMAN, United States District Judge
• Decision Date: 05 October 2018
• Docket Number: 18-CV-2921 (JMF)
• Citation: New York v. U.S. Dep't of Commerce, 18-CV-2921 (JMF) (S.D. N.Y. Oct 05, 2018)
• Parties: STATE OF NEW YORK, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants.

STATE OF NEW YORK, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants.

18-CV-2921 (JMF)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

October 5, 2018

MEMORANDUM OPINION AND ORDER

JESSE M. FURMAN, United States District Judge:

On September 20, 2018, Plaintiffs filed a letter motion seeking a discovery conference or an order compelling production of certain Department of Justice ("DOJ") documents withheld on the basis of the deliberative process privilege. (Docket No. 343 ("Pls.' Letter"). After Defendants responded (Docket No. 348 ("Defs.' Letter")), the Court directed them to submit the remaining twenty-five disputed documents for in camera review. (Docket No. 357). Upon review of the documents, Plaintiffs' motion is GRANTED in part and DENIED in part.

The deliberative process privilege is designed to protect the "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) (internal quotation marks omitted). It does so "by preserving and encouraging candid discussion between officials." Nat'l Council of La Raza v. Dep't of Justice, 411 F.3d 350, 356 (2d Cir. 2005). Pursuant to the privilege, the Government may withhold "an inter- or intra-agency document . . . if it is: (1) predecisional, i.e., prepared in order to assist an agency decisionmaker in arriving at his decision, and (2) deliberative, i.e., actually related to the process by which policies are formulated." Nat'l Council of La Raza, 411 F.3d at 356 (alterations and internal quotations marks omitted). "[W]hile the agency need not show ex post that a decision was made" based on the document, "it must be able to demonstrate that, ex ante, the document for which [the] privilege is claimed related to a specific decision facing the agency." Tigue, 312 F.3d at 80.

As a threshold matter, the parties dispute whether the privilege can apply to agency communications about "how to explain, interpret, or 'message' an already-decided policy." (Pls.' Letter 2). Plaintiffs argue that such communications are necessarily post-decisional, and they certainly are with respect to the "already-decided policy." (Id.). Defendants wisely concede that point, but contend that such communications are "pre-decisional" with respect to a different decision — namely the decision about what to say to the public, the press, or Congress. (See Defs.' Letter 2). The First and D.C. Circuits have held that deliberations about such "messaging" decisions can be protected by the deliberative process privilege. See, e.g., N.H. Right to Life v. U.S. Dep't of Health & Human Servs., 778 F.3d 43, 54 (1st Cir. 2015); Access Reports v. Dep't of Justice, 926 F.2d 1192, 1196-97 (D.C. Cir. 1991). The Second Circuit has not squarely addressed the issue, and district courts within the Circuit have reached different conclusions. Compare, e.g., Nat'l Day Laborer Org. Network v. U.S. Immigration & Customs Enf't Agency, 811 F. Supp. 2d 713, 741 (S.D.N.Y. 2011), amended on reconsideration (Aug. 8, 2011) ("'[M]essaging' is no more than an explanation of an existing policy, which is not protected by the deliberative process privilege."), and Fox News Network, LLC v. U.S. Dep't of the Treasury, 739 F. Supp. 2d 515, 543-45 (S.D.N.Y. 2010) (explaining that "opinions and recommendations regarding press inquiries do not qualify as deliberations about substantive policy decisions" and collecting additional cases from this District), with Seife v. U.S. Dep't ofState, 298 F. Supp. 3d 592, 616-17 (S.D.N.Y. 2018) (holding that "decisions regarding press strategy may be exempt from disclosure under the deliberative process privilege").¹

Upon review of the relevant case law, the Court agrees with the Government that "messaging" communications can be protected by the deliberative process privilege. After all, an agency's decisions about what and how to communicate with Congress, the press, or the public can, in and of themselves, involve substantive policymaking (or at least substantive policy refinement) of the type that Congress has delegated to the agency, and the purposes of the privilege are served by protecting the deliberations leading to those decisions. By way of example, deliberations within the Federal Reserve about the timing and content of a policy announcement, although post-decisional with respect to the particular policy to be announced, also relate to a future decision (what to say and when to say it) that implicates questions within the scope of the agency's delegated policymaking authority — and are therefore the type of deliberations the privilege is designed to protect.²

That said, not all "messaging" decisions are so intimately bound up with an agency's central policy mission. Thus, the Government goes too far in suggesting that all deliberations over what to say are protected by the privilege. Indeed, taken to its logical conclusion, that suggestion would render the privilege's restriction to "predecisional" deliberations a nullity because, given that agencies are in constant communication with the public, the press, and Congress, all "messaging" deliberations would be "predecisional" with respect to some futuremessaging "decision" (whether or not the agency ultimately made such a decision, as it need not to trigger the privilege, Tigue, 312 F.3d at 80). Instead, the privilege protects only those "messaging" communications that are both "predecisional" and "deliberative" with respect to a "messaging" decision of the type that Congress has actually (if perhaps only impliedly) asked the agency to make. Put differently, where "messaging" communications amount to little more than deliberations over how to spin a prior decision, or merely reflect an effort to ensure that an agency's statement is consistent with its prior decision, protection would do little to advance the purposes underlying the privilege. "[T]he key inquiry," therefore, is whether the disputed materials "reflect deliberations about what 'message' should be delivered to the public about an already-decided policy decision, or whether the communications are of a nature that they would reveal the deliberative process underlying a not-yet-finalized policy decision," including the very decision about what "message" to deliver — provided that the particular "messaging" decision is among those that Congress has asked the agency to make. Citizens Union of City of New York v. Attorney Gen. of New York, 269 F. Supp. 3d 124, 164 (S.D.N.Y. 2017); see Fox News Network, 739 F. Supp. 2d at 545 (concluding that "messaging" documents "are properly withheld if their release would reveal the status of internal deliberations on substantive policy matters").

Even if that inquiry favors withholding the disputed materials, however, that does not necessarily end the matter, because a document protected by the deliberative process privilege may still be subject to disclosure. Most relevant here, the privilege may be overcome in certain circumstances where "the litigation involves a question concerning the intent of the governmental decisionmakers or the decisionmaking process itself." In re Delphi Corp., 276 F.R.D. 81, 85 (S.D.N.Y. 2011) (internal quotation marks omitted). To determine whether that exception applies, a court must weigh "(1) the relevance of the evidence the agency seeks toprotect; (2) the availability of other evidence; (3) the seriousness of the litigation; (4) the role of the agency in the litigation; and (5) the possibility that disclosure will inhibit future candid debate among agency decision-makers." Id.

Applying the foregoing standards to the remaining documents in dispute, the Court concludes that the drafts of the "Gary Letter" (Bates Nos. 2722, 2736, 2739, and 2786), the e-mail discussing a pending FOIA request (Bates No. 14683), and an e-mail concerning a response to a Commissioner of the U.S. Civil Rights Commission (Bates No. 14687) are protected by the deliberative process privilege and, given DOJ's subordinate role in Secretary Ross's decision to add the citizenship question, need not be disclosed.³ By contrast, the Court concludes that the briefing paper for the Attorney General (Bates No. 2967), the draft responses to...