State of New York v. Mayorkas

Background

This opinion addresses two related cases challenging the Acting Secretary of Homeland Security’s decision to prohibit New York residents from enrolling or re-enrolling in Trusted Traveler Programs, including Global Entry. The plaintiffs asserted, among other things, that the decision violated the Administrative Procedure Act (APA).

Before the initial pretrial conference, the parties disputed whether the defendants had to produce a privilege log. A privilege log is a list identifying documents withheld because of attorney-client privilege, deliberative-process privilege, or another asserted protection, together with enough information to allow the opposing party and the court to evaluate the claim. The court had previously ordered the defendants to produce such a log within one week after producing the administrative record. The defendants then sought relief from that requirement.

Analysis

The court adhered to its earlier order. Under the APA, a court reviews the “whole record”—the full administrative record that was before the agency decisionmaker when the challenged action was taken. Although privileged documents are not technically part of the administrative record when privilege is properly invoked, the court must be able to evaluate whether the privilege assertion was properly made and applied. Without a privilege log, the court could not perform that review.

The defendants conceded that they had redacted portions of documents in the administrative record based on privilege. The court found that the labels used for those redactions did not adequately describe the documents or explain why they were privileged. The court also found reason to believe that entire documents may have been omitted. In particular, the administrative record was only 64 pages long, which the court viewed as raising questions about whether the record was complete for a significant agency decision.

The court rejected the defendants’ arguments that privileged materials could not be part of the record and that a privilege log would undermine the presumption that an agency properly compiled its record. The court also noted that the defendants had not shown that producing the log would impose an undue burden.

Disposition

The court required the defendants to produce, no later than May 1, 2020, a log listing documents withheld in whole or in part from the administrative record on the basis of privilege. The court expressly did not order production of the documents claimed to be privileged. If the plaintiffs challenged an assertion, the parties were required to meet and confer in good faith and, if necessary, agree on procedures for presenting the dispute to the court, while giving the government an opportunity to be heard. Judge Jesse M. Furman entered the order.