IN RE: NEW YORK CITY POLICING DURING SUMMER 2020 DEMONSTRATIONS

Background

The plaintiffs moved to compel the City to produce documents relating to an after-action review of the New York City Police Department’s response to the summer 2020 demonstrations. The City opposed the motion, asserting the deliberative-process privilege. That privilege can protect documents containing advice, recommendations, and internal discussions used in forming government decisions and policies.

The court had previously explained that documents covered by the privilege generally must be both predecisional—prepared to help an agency decisionmaker reach a decision—and deliberative—connected to the agency’s process for developing policy.

The City’s privilege claim

Plaintiffs argued that the City had not properly invoked the privilege because it had not submitted an affidavit from the NYPD head or a properly authorized high-level delegate. The City initially submitted two affirmations from Thomas Conforti. The first described the documents and work involved in preparing the after-action review but did not invoke the privilege or identify authority to invoke it. The second supplied additional information but did not cure those omissions.

After the court allowed the City to respond, the City submitted a third affirmation from Conforti. Conforti stated that he had reviewed the documents and determined that they were privileged. He also stated that former Commissioner Dermot Shea had delegated the preparation of the report to him. But the affirmation did not show that either the former or current commissioner had delegated to him the authority to invoke the privilege. The court further noted that Conforti had retired and was a private citizen when he made the latest invocation.

The court explained that the privilege belongs to the government, not to individual officials, and that an agency head may delegate the authority to invoke it only to a high-level subordinate under guidelines issued by the agency head. The court concluded that the City had not properly invoked the privilege.

Ruling and next steps

The court declined to grant the plaintiffs’ motion to compel solely because of the defective invocation. It stated that the court’s earlier comments may have led the City to believe that a declaration from Conforti would be sufficient and that the issue should preferably be decided on the merits rather than on a procedural defect. The court therefore gave the City one final opportunity to file a proper declaration by February 6, 2023. If the City filed a declaration that properly invoked the privilege, the court would then decide the remaining issues in the plaintiffs’ motion. The order did not finally grant or deny the motion to compel.