Nunez v. N.Y.C. Department of Correction

Background

The defendants submitted letters concerning their withholding of documents requested by the plaintiffs. The documents concerned several incidents that were the subject of open investigations. The defendants asserted that the documents were protected by the law-enforcement privilege. The court reviewed the defendants’ letters, the plaintiffs’ opposition, and the defendants’ reply.

The litigation concerns compliance with orders issued in the Nunez case. The opinion states that the plaintiffs represent every person incarcerated in the Rikers Island jails in this litigation. The plaintiffs argued that the requested materials directly concerned the harm they faced and the Department’s repeated failures to comply with the court’s orders. They also said the materials included details from the monitoring team that were important to evaluating the City’s compliance with those orders.

Law-enforcement privilege

The court explained that the party asserting the law-enforcement privilege bears the burden of showing that the privilege applies. The privilege can cover information about law-enforcement techniques and procedures, confidential sources, the safety of witnesses and law-enforcement personnel, the privacy of people involved in investigations, or information that would seriously impair future investigations.

The privilege is not absolute and cannot be used simply to shield law-enforcement agencies from public scrutiny. The fact that an investigation remains open does not automatically prevent disclosure. When records are both relevant and essential to presenting the case, the need for disclosure can outweigh the need for secrecy.

The defendants emphasized the importance of confidentiality in open investigations and cited concerns about cooperation by people in custody, safety concerns, and the investigators’ ability to complete their work. The court found these concerns conclusory. In particular, the defendants did not explain why it would be insufficient to provide the documents under the existing protective order with a “Confidential—Attorney’s Eyes Only” designation.

Under that protective order, attorneys receiving confidential materials generally may not disclose them to anyone other than attorneys representing the parties, those attorneys’ agents and staff, the monitor and the monitor’s staff, or the court in a sealed filing. The court stated that it was not clear what safety or privacy problems would result from sharing the information with the plaintiffs’ counsel in this litigation.

Ruling

The court agreed that the requested documents were relevant and essential to presenting the case, particularly given continuing issues concerning the defendants’ compliance with the court’s orders and the anticipated request to appoint a receiver. It directed the defendants to produce the relevant documents by October 25, 2023.

The defendants may designate particular documents “Confidential—Attorney’s Eyes Only” under paragraph 2 of the protective order to the extent they contend in good faith that those documents are covered by the law-enforcement privilege. The order did not state that every document covered by an open investigation must be disclosed without protection; instead, it required production subject to that confidentiality designation where appropriate.