Peck v. United States, 76 Civ. 983 (CES).
| Decision Date | 17 August 1981 |
| Docket Number | No. 76 Civ. 983 (CES).,76 Civ. 983 (CES). |
| Citation | 522 F. Supp. 245 |
| Parties | James PECK, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Rabinowitz, Boudin, Standard, Krinsky & Lieberman, New York City, for plaintiff; Edward Copeland, Eric M. Lieberman, Lewis A. Kornhauser, New York City, of counsel.
John S. Martin, Jr., U. S. Atty., for defendant; Peter C. Salerno, Asst. U. S. Atty., New York City, of counsel.
The defendant moves for reargument of our Memorandum Decision of May 1, 1981 ordering disclosure of portions of the Task Force Report on Gary Thomas Rowe, Jr. ("Rowe Report"). 514 F.Supp. 210. Defendant asserts several grounds for reargument: (1) the official information privilege cannot, as a matter of law, be waived; (2) the official information privilege was not waived in this case; and (3) the decision failed to take into account the informant's privilege in granting "full disclosure of the relevant portions of the Rowe Report." Alternatively, defendant sought a stay of our order pending the outcome of an appeal in Playboy Enterprises, Inc. v. United States Department of Justice, 516 F.Supp. 233 (D.D.C.1981), which ordered almost the entire Rowe Report disclosed pursuant to a Freedom of Information Act request. See 5 U.S.C. § 552(b)(5) (1976).
We are unpersuaded that the official information privilege cannot be waived. The leading treaties on evidence would treat the official information privilege precisely as it would other common law privileges. See 8 Wigmore, Evidence § 2379 (McNaughton rev. 1961). Thus, waiver of the official information privilege may be predicated on "implied intention" or "the objective consideration that when a party's conduct touches a certain point of disclosure, fairness requires that his privilege shall cease whether he intended that result or not." Id. § 2327. See also McCormick, Evidence § 93 (2d ed. 1972).
In support of its contention that the official information privilege was not waived in the present case, the defendant filed a supplemental declaration of a Special Assistant to former Attorney General Civiletti. The declaration states that two summaries were prepared—one for public release and one for internal Department of Justice purposes. The declaration also states "at no time was it considered that the work product of the Office of Professional Responsibility task force itself would be released to the public; that document was intended to form the basis for the Attorney General's decisions, including his decision on which matters were appropriate for public release." This information does not alter the outcome of our prior decision. The test for waiver is essentially an objective one, and the intent of the party who made partial disclosure concerning the remainder of the privileged matter is not dispositive.
By Supplemental Memorandum of July 22, 1981, the government also suggests that the work-product doctrine and the privilege for investigative and law enforcement records bar any disclosure of the Rowe Report. Additionally, the government seeks to prevent disclosure of transcripts of Grand Jury testimony. None of these theories protect the portions of the Rowe Report that we ordered disclosed.
It was an oversight, however, not to reaffirm a holding of our first decision on the Rowe Report recognizing the informant privilege "to preclude the release of material in that Report that would jeopardize the physical safety of present and former informants of the FBI." Peck v. United States, 88 F.R.D. 65, 73 (S.D.N.Y.1980). Thus, the Memorandum Decision of May 1, 1981 should not be construed to require the disclosure of informants or third parties supplying confidential information to the FBI. There is no privilege to protect the names or identifying data of FBI agents who were not acting in undercover capacities and were not furnishing confidential information.
Finally, a stay is deemed necessary by the defendant in order to avoid "mooting" the appeal of Playboy Enterprises. The mootness doctrine requires that an actual case or controversy exist at all stages of the action. See, e. g., DeFunis v. Odegaard, 416 U.S. 312, 319, 94 S.Ct. 1704, 1707, 40...
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New York 1 News v. Office of President of Borough of Staten Island
...may be waived (citations omitted)." Peck v. United States, 514 F.Supp. 210, 212 (S.D.N.Y.1981), reargument denied and granted in part, 522 F.Supp. 245, appeal dsmd 680 F.2d 9). Interestingly, in Peck, supra, upon denying in part a subsequent motion for reargument, the court rejected defenda......
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...litigation). Third, considerations of comity weigh heavily in favor of dismissing or staying a proceeding. See Peck v. U.S., 522 F. Supp. 245, 247 (S.D.N.Y. 1981) The application of the "prior action pending" or "other suit pending" doctrine requires that there be "the same rights asserted ......
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Kusuma Nio v. U.S. Dep't of Homeland Sec.
...can be 'waived' " through "a voluntary surrender."); cf. Peck v. United States , 514 F.Supp. 210, 212 (S.D.N.Y.), on reargument, 522 F.Supp. 245 (S.D.N.Y. 1981) (finding the government waived the official information privilege after it released a summary of an investigation that revealed a ......