Z.Q. v. New York City Department of Education
- Tarnofsky
- 1:20-cv-09866
- U.S. District Court · Southern District of New York
- 3
In Z.Q. v. New York City Department of Education, Judge Tarnofsky found the privilege log inadequate and ordered defendants to update it by June 20, 2025.
The defendants, including the New York City Department of Education, must provide an updated privilege log; the plaintiffs receive more information with which to challenge the privilege assertions.
What happened
Z.Q. v. New York City Department of Education concerns the defendants’ updated log identifying documents withheld under the deliberative process privilege. The plaintiffs argued that the log did not provide enough information to evaluate those privilege claims.
The court reviewed 30 selected log entries, the withheld documents, and a supporting declaration. The court said defendants should identify when policies were rejected, even if the policies were never enacted, and questioned whether some entries related to specific agency decisions at all.
The court concluded that the log did not sufficiently support the claimed privilege and ordered defendants to provide an updated log by June 20, 2025. Judge Robyn F. Tarnofsky also noted that many, though not all, reviewed documents did not appear to contain protected material.
The detailed version
- Z.Q. v. New York City Department of Education · No. 1:20-cv-09866
- Tarnofsky
- June 13, 2025
Background
The plaintiffs challenged the defendants’ updated deliberative process privilege log. The log concerned documents withheld on the ground that they reflected protected internal deliberations. The plaintiffs argued that the log did not provide enough information for them to evaluate and challenge the privilege claims.
At a June 5, 2025 conference, the defendants said the remaining documents concerned policies that were never enacted. They argued that this prevented them from identifying the policies and enactment dates. The court ordered the plaintiffs to select 30 log entries and ordered the defendants to provide the corresponding withheld documents for private judicial review. The court reviewed the log entries, the documents, and a declaration supporting the privilege claims.
Court’s analysis
The court explained that, to show that a document is pre-decisional—that is, created before the relevant agency decision—the party asserting the privilege must identify the specific agency decision connected to the document and confirm that the document came before that decision in time.
The court stated that the defendants should be able to identify when policies were rejected, even if they were never enacted. Those dates could allow the plaintiffs to test whether the documents came before the specific decisions connected to them. The court identified entries concerning staffing of summer programs, school transportation, services for students over age 21, returning to in-person special education, and compensatory services. It also identified entries concerning less concrete subjects, including partnering with families of students with disabilities, parent communication for special-education recovery services, and Department of Education testimony about school busing.
For the less concrete entries, the court said it was unclear whether the documents related to deliberations that led to an agency decision or were part of the consultative process. The court also noted that many, though not all, of the reviewed documents did not appear to contain material protected by the deliberative process privilege.
Ruling
The court concluded that the information in the current privilege log was insufficient to support the claimed privilege. It ordered the defendants to provide an updated log by June 20, 2025. The opinion does not state that the court finally decided whether any particular document was privileged.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.