State of New York v. Mayorkas

Background

The plaintiffs challenged the Acting Secretary of Homeland Security’s decision to prohibit New York residents from enrolling or re-enrolling in Trusted Traveler Programs, including the Global Entry Program. The plaintiffs’ cases included claims under the Administrative Procedure Act, which allows courts to review certain agency actions, as well as constitutional claims. The constitutional claims were the subject of a separate pending motion to dismiss, and the court did not decide discovery relating to those claims in this order.

Defendants produced a revised administrative record and a privilege log identifying redactions and 170 documents withheld in full. Defendants relied on the deliberative-process privilege, the law-enforcement privilege, the attorney-client privilege, and the work-product doctrine. Plaintiffs moved to compel production of all withheld or redacted materials.

Legal standards

The deliberative-process privilege protects qualifying agency communications that are both predecisional—prepared to help an agency decisionmaker reach a decision—and deliberative—related to the process of developing policy. The privilege generally does not protect purely factual material. It is qualified, meaning the court balances the government’s interest in confidentiality against the litigant’s need for disclosure.

The law-enforcement privilege protects information about law-enforcement techniques and procedures, confidential sources, witnesses, personnel, individuals involved in investigations, and information that could interfere with an investigation. It is also qualified, but the presumption against disclosure is strong.

The attorney-client privilege protects confidential communications between government lawyers and their clients made to obtain or provide legal advice. The work-product doctrine protects attorneys’ mental impressions, opinions, and legal theories concerning specific litigation.

Court’s analysis

The court reviewed the disputed documents in camera, meaning privately and outside the parties’ presence. It upheld defendants’ withholding of numerous draft documents, internal agency communications, recommendations, proposals, subjective assessments, and confidential attorney communications under the deliberative-process or attorney-client privileges. It also upheld redactions on certain administrative-record pages under the law-enforcement privilege.

The court ordered full production of Document Nos. PRIV_007 and PRIV_166 because they contained factual material not protected by the deliberative-process privilege. It also ordered production of factual portions of Document Nos. PRIV_008, PRIV_022, and PRIV_031, subject to specified redactions.

The court upheld the withholding or redaction of Document Nos. PRIV_009, PRIV_053, and PRIV_081 and specified administrative-record pages because they concerned internal discussions of potential policy responses, including options the agency did not ultimately select. But it ordered production of Document No. PRIV_001 because the document directly clarified the agency’s stated reasons for excluding New York residents from the Trusted Traveler Programs. The court found that the need for disclosure was strong because the plaintiffs alleged that the decision was arbitrary and capricious, the document was important to reviewing that claim, and the document’s views had been incorporated into the agency’s stated justifications.

The court also ordered production of administrative-record pages DHSGLL018 to DHSGLL020 and Document No. PRIV_032 because they concerned the extent of Department of Homeland Security access to state motor-vehicle databases and did not contain information protected by the law-enforcement privilege.

The court ordered production of administrative-record pages DHSGLL052 and DHSGLL054 to DHSGLL061, subject to allowing defendants to redact Section 5.10 on page DHSGLL061. Although the law-enforcement privilege applied to the material, the court found that the plaintiffs had shown a good-faith, non-frivolous suit, a lack of equivalent information from other sources, and a compelling need to evaluate the agency’s justification concerning Trusted Traveler vetting. The court concluded that the information primarily described discretion in the vetting process rather than fixed rules that could be exploited.

Finally, the court ordered production of specified portions of administrative-record pages DHSGLL025 and DHSGLL038 to DHSGLL039. It found that defendants had waived the deliberative-process privilege over related statements by voluntarily disclosing other statements in the same portions of the documents, and that defendants had not shown that the law-enforcement privilege protected the additional material.

Disposition

Judge Jesse M. Furman ordered that plaintiffs’ motion to compel was GRANTED in part and DENIED in part. By June 17, 2020, defendants had to disclose in full specified administrative-record pages and Document Nos. PRIV_001, PRIV_007, PRIV_032, and PRIV_166. Defendants also had to disclose Document Nos. PRIV_008, PRIV_022, and PRIV_031 and specified administrative-record pages subject to the approved redactions. Defendants could redact email addresses, telephone numbers, and other contact information consistent with an earlier court order. By June 15, 2020, the parties had to meet and confer and submit an agreed proposed protective order governing the disclosed documents. The clerk was directed to terminate the two docket entries containing the motions.