IN RE: NEW YORK CITY POLICING DURING SUMMER 2020 DEMONSTRATIONS
- Colleen McMahon
- 1:20-cv-08924
- U.S. District Court · Southern District of New York
- 9
In re New York City Policing During Summer 2020 Demonstrations: Magistrate Judge Gorenstein granted plaintiffs’ motion to compel in part and denied it in part.
The plaintiffs and the City defendants were affected: the City must produce specified factual and non-deliberative portions of the after-action-review materials, while most of the requested documents remain protected from disclosure.
What happened
In re New York City Policing During Summer 2020 Demonstrations involves consolidated actions alleging improper New York City Police Department policing during demonstrations in 2020. The plaintiffs sought documents concerning the police department’s after-action review of those operations.
The court held that nearly all of the requested documents were protected by the deliberative process privilege because they contained pre-decision recommendations and discussions about future police policies. The plaintiffs did not show that their need for the documents outweighed the government’s interest in protecting candid internal discussions.
Magistrate Judge Gabriel W. Gorenstein granted in part and denied in part the motion to compel. He ordered the City to produce specified factual material and certain non-deliberative portions in redacted form within seven days, while denying the request for the remaining materials.
The detailed version
- IN RE: NEW YORK CITY POLICING DURING SUMMER 2020 DEMONSTRATIONS · No. 1:20-cv-08924
- Colleen McMahon
- Feb. 15, 2023
Background
The case consists of consolidated actions against the City of New York and other defendants based on allegations concerning New York City Police Department policing of demonstrations during the late spring and summer of 2020. The plaintiffs moved to compel production of documents relating to an after-action review of the police operations. Thomas Conforti, who was then an Assistant Chief and Commanding Officer of the Operations Bureau, prepared the documents.
The requested materials included drafts of the full report and its sections, notes, and emails transmitting the documents or comments on them. The City asserted the deliberative process privilege, which protects certain internal government recommendations and discussions made while developing policy. The court had previously found that the City’s initial assertion was defective because Conforti had retired and his authority to assert the privilege was unclear. The City later submitted a new declaration from an employee with delegated authority, along with written guidelines from the NYPD Commissioner. The court found that this corrected assertion properly invoked the privilege.
Why the Privilege Applied
The court reviewed the documents privately, along with declarations describing how the review was conducted. It found that the materials were prepared to help determine future NYPD policy for handling mass demonstrations. The review evaluated existing protocols, included Conforti’s thoughts and suggestions about possible policy changes, and was circulated among NYPD executives for comments and revisions. The report was given to the Commissioner, who neither approved nor released it to the entire NYPD.
The court concluded that the documents were both predecisional and deliberative. They were predecisional because they were intended to precede future policy decisions, and deliberative because they contained recommendations, drafts, subjective views, and discussions about future NYPD policy. The fact that the report was never approved or issued did not eliminate the privilege.
Severable Factual Material
The privilege does not protect purely factual or investigative material that can be separated without revealing protected deliberations. The court determined that certain charts, tables, and a slide could be produced because their disclosure would not reveal the protected discussions. It also ordered production in redacted form of non-deliberative portions of Documents 31 and 32 that described how the report was transmitted. The court noted that other charts and tables appeared to reveal the deliberative process through the selection of data and therefore were not ordered produced.
Balancing the Need for Disclosure
The deliberative process privilege is qualified, meaning that a court balances the public interest in confidentiality against the requesting party’s need for the information. The court considered the seriousness of the litigation and the plaintiffs’ argument that they needed the documents to support an allegation that the NYPD failed to learn from earlier protest-policing problems.
The court found that the plaintiffs had not shown a strong need for the analysis and recommendations made after the 2020 protests. It reasoned that the complaint mainly concerned whether the NYPD learned lessons from protests before 2020 and implemented them in time for the 2020 protests. The later review was therefore of only tangential relevance. The plaintiffs could also learn about the review process from Conforti’s declaration, question witnesses, and receive the severable process-related material ordered disclosed.
The court concluded that exposing the internal analysis and recommendations could discourage government officials from candidly evaluating police practices and proposing policy improvements in the future. The plaintiffs did not show that their need outweighed that governmental interest.
Disposition
The court granted in part and denied in part the motion to compel, Docket No. 680. The City was ordered to produce, within seven days of the decision, the specified materials containing purely severable factual matter and the specified non-deliberative portions in redacted form. The motion to compel production of the remaining materials was denied.
Read the full 9-page opinion on CourtListener, the free public archive maintained by the Free Law Project.