MARCIA S. KRIEGER, Chief District Judge.
The Court assumes the reader's familiarity with Mr. Mohammed's remaining claims and the proceedings to date. In short, Mr. Mohammed, an inmate of the Federal Bureau of Prisons ("BOP") asserts a single Bivens claim challenging the BOP's imposition of Special Administrative Measures ("SAMs") against him that limit, in various ways, his ability to communicate with family members and friends.
After the close of the discovery period and the Magistrate Judge's representation that discovery was "substantially complete," and following the resolution of dispositive motions, this conducted a final pre-trial conference. At the conference the parties represented that each had issues with regard to discovery requests made in October 2013. Because neither party had filed motions with regard to such issues, the Court set a date to do so. Given the age of the case, the Court also set the matter for trial beginning May 5, 2014.
During October 2013, Mr. Mohammed served requests for production on the Defendants, requesting, in essence, "any . . . document in possession of Defendant relating to Plaintiff's communications or SAMs." The Defendants produced certain documents responsive to these requests, but withheld others, claiming that such withheld documents were protected from disclosure by either the law enforcement privilege or the deliberative process privilege. In January 2014, Mr. Mohammed filed the instant Motion to Compel
The Court heard oral argument on the motions on February 19, 2014, at which time Mr. Mohammed narrowed his request to those documents reflecting the period of 2004 to 2007 for documents relating to restrictions on his ability to communicate with non-immediate family members and delays in mail screening, and documents from 2010 relating to a restriction on his ability to communicate with his brother, Nassor. Mr. Mohammed also agreed to withdraw a request for documents relating to his criminal prosecution in 1999.
The Court then directed the Defendants to produce the withheld documents, along with a comprehensive privilege log, for in camera review. The Defendants produced three separate sets of documents on CDs, each accompanied by a privilege log
The Court has now completed its in camera review of the documents and makes the following findings.
Although Mr. Mohammed's requests for production are clearly overbroad, the Defendants raise objections based only upon invocation of privileges; there is no objection as to the relevance of any of the requested documents. This is unfortunate. The Court was able to narrow the scope of the discovery request at the February hearing, but the parties were in the best position to tailor the request in light of the single claim to be tried but they did not do so. As a consequence, the Defendant has submitted and the Court has reviewed a multitude of documents that are not relevant to the claim set for trial.
The Court sua sponte conducted a preliminary threshold review of the documents for relevance. This review was narrow, only those documents that had no connection whatsoever to the issues to be tried in this case were excluded based on relevance. These documents fall into one of three categories: (i) documents that predate 2004, which Mr. Mohammed has given as the earliest relevant date,
Accordingly, the Court finds that the following documents (identified by Bates numbers) may be withheld by the Defendants on the grounds that they have no relevance whatsoever to the claim to be tried:
All three logs sometimes raise an objection to producing a listed document on the grounds that the document contains "personal identifying information for non-parties." Although such information may be withheld from a production in response to Freedom of Information Act request, 5 U.S.C. § 552(b)(6), the Federal Rules of Civil Procedure do not contemplate that the presence of a non-party's personal information in an otherwise properly-requested document operates to preclude production of that document. At most, a concern about the unnecessary disclosure of personal information relating to non-parties is a factor permitting the issuance of a protective order under Fed. R. Civ. P. 26(c), which is not sought here.
Once documents that relate solely to other inmates are excluded as irrelevant, the Court's review reveals relatively few documents that discuss other inmates in ways that reveal unnecessary personal information about them. The mere fact that a document mentions another inmate (or readily-ascertainable details of that inmate's conviction or sentence) is not sufficient to demonstrate that production of the document under an existing attorney eyes-only protective order would expose that inmate to "annoyance, embarrassment, oppression, or undue burden." Fed. R. Civ. P. 26(c). Moreover, there is no reason why any legitimate concerns of non-party inmate privacy that may exist cannot readily by cured by mere redaction of the non-party inmate's name.
Accordingly, the Court finds no entries in the logs that warrant protection from disclosure on the grounds that they contain non-party personal information.
The BOP and SDNY productions occasionally cite to the law enforcement privilege as a basis for withholding documents. The "law enforcement privilege" is the overarching name given to a bundle of privileges that relate to preserving the confidentiality of a law enforcement investigation In re City of New York, 607 F.3d 923, 944 (2d Cir. 2010). Materials that reveal: (i) law enforcement techniques and procedures; (ii) would undermine the confidentiality of sources; (iii) information that would endanger law enforcement personnel, witnesses, or the privacy of individuals involved in an investigation; or (iv) information that would otherwise interfere with an investigation, may all be subject to the privilege. Id. The privilege applies to protect information relating to completed investigations as well as ongoing ones, as "the ability of a law enforcement agency to conduct future investigations may be seriously impaired if certain information" from a completed investigation is revealed. Id.
The law enforcement privilege is a qualified, not absolute, one, which means that it can be overcome by a showing that the requesting party's need for the information outweighs the law enforcement agency's need for secrecy. See e.g. In re Dept. of Homeland Security, 459 F.3d 565, 569-70 (5
This Court's review of the various documents for which the law enforcement privilege is invoked reveals no document for which the privilege has been asserted that falls within its purview. There is no designation of any particular person — law enforcement officers, witnesses, or targets — involved in any ongoing or completed investigation. The documents disclose law enforcement "techniques" only in the most superficial and broad sense of the term, revealing only unremarkable facts such as that Mr. Mohammed's conversations in Swahili with friends and family members are monitored by Swahili-speaking interpreters associated with federal law enforcement agencies, that law enforcement agencies scrutinize Mr. Mohammed's oral and written communications with others to ensure that he is not passing on harmful messages, either overtly or in code, and that requests by Mr. Mohammed to add persons to the list of those with whom he is permitted to have contact has prompted federal law enforcement agencies to conduct a background check on those persons before granting approval.
Accordingly, the Court finds that none of the documents in any of the productions are subject to withholding on the basis of the law enforcement privilege.
The vast majority of the Defendants' claims of privilege invoke the deliberative process privilege. The deliberative process privilege covers "documents reflecting advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated." Dept. of Interior v. Klamath Water Users Protective Assn., 532 U.S. 1, 8-9 (2001). The purpose of the privilege is to ensure that "open and frank discussion" among governmental officials charged with making a decision, as officials "will not communicate candidly among themselves if each remark is a potential item of discovery and front page news." Id. The burden of avoiding disclosure lies with the party asserting the privilege, who must show that "disclosure would create a chilling effect" on intra-agency discussions. U.S. ex rel. Williams v. Renal Care Group, 696 F.3d 518, 527 (6th Cir. 2012).
To fall within the privilege, documents must be both "pre-decisional" and "deliberative." "Pre-decisional" means that they were created prior to the adoption of an official agency policy or position on the matter in question, rather than being post-decision explanations for the decision. "Deliberative" means that the documents were used to make recommendations or express opinions on legal or policy matters, and that the documents were created specifically for use during a decision-making process. Confidential Informant 59-05071 v. U.S., 108 Fed.Cl. 121, 135 (Fed. Cl. 2012). On the other hand, documents that simply recite factual information, summarize past events, or report on an investigation are not privileged unless the selection of the information reveals governmental decision-making. Id. at 135; Renal Care Group, Inc., 696 F.3d at 527. The key feature of a privileged document is the making of a recommendation, the statement of an opinion about the issues underlying the decision to be made, or the "give-and-take" of the consultative process. Confidential Informant, 108 Fed.Cl. at 138; Renal Care, 696 F.3d at 527.
As with the law enforcement privilege, the deliberative process privilege is qualified. Even if otherwise validly invoked, it can be overcome by a showing that the plaintiff's need for the information outweighs the governmental interest in preserving the confidentiality of deliberations.
To a large extent, the documents in each production consist of e-mail chains among various officials from each agency,
The Court has generally applied the following standards in ruling on invocations of the deliberative process privilege:
• Documents that are clearly identifiable as drafts are privileged. Such identification may be by the document itself — the document is watermarked as "draft," it has blank spaces in it where additional information is to be supplied, it has handwritten corrections or commentary attached, or it has typeface or other markings or formatting in it suggesting redlined changes are included or that the document is otherwise incomplete — or it may be accompanied by a transmittal memo that clearly refers to the document as a draft or solicits changes or corrections. However, the Court does not assume that the mere fact that a document is unsigned or undated makes it a draft; in an era of electronic signatures and transmittal of documents by e-mail, such formalities are sometimes overlooked. In some circumstances, although the Defendants have represented on the logs that a particular document is a draft, if none of the indicia of draft status mentioned above are found, it will be produced.
• Documents reflecting e-mail chains in which a participant offers corrections to or requests modification of a draft document (whether the draft document is included in or attached to the chain or not) are also deliberative in nature. The Court has also permitted the withholding of documents in which the sender requests and the recipients provide their consent to the contents of a draft document (whether included or not). There may be little harm in disclosing documents in which each recipient merely states that they consent to a proposed draft or decision, but obtaining such consent is an important component of the deliberative process and thus, the Court treats such documents as privileged.
• Documents, even those that appear to be final versions, are deliberative if their contents indicate that the authoring agency is merely giving a recommendation to the recipient agency or requesting the recipient agency to take a specific action for specific reasons. For example, the SDNY routinely writes an annual letter to OEO, captioned "Request for renewal of 28 C.F.R. 502.1 Special Administrative Measures [for] Kahlfan Khamis Mohammed." The first paragraph of that document typically reads, "The Government submits this letter in support of a renewal of the [SAMs] currently imposed . . ." and concludes with "for all of the foregoing reasons, this Office recommends SAMs be renewed for Khalfan Khamis Mohammed." The text of this letter makes clear that the SDNY is offering advice and opinion to the OEO in order to assist the OEO with deliberations as to whether the SAMs should be renewed. Thus, letters that "recommend" or "request" that another agency take a particular action usually fall within the deliberative process privilege.
• Documents that do nothing more than convey drafts from sender to recipient are not considered privileged (unless the draft is included in the document), nor are documents which merely solicit the recipient's comments or consent, without actually disclosing the recipient's position on the matter. These documents simply reflect administrative processing, not any internal deliberations or recommendations.
• Similarly, documents that merely reveal the administrative operations of an agency are not privileged. For example, a number of documents in the parties' productions concern various officials commenting to each other about delays in the signing of renewal letters. Where these comments also propose a change in agency direction to ameliorate the problem in the future, the deliberative privilege might apply. But when the documents simply consist of one party advising another of a deadline, expressing concern about meeting that deadline, or inquiring whether the deadline will be met, those communications reveal nothing deliberative and thus fall outside of the privilege.
• Finally, the Court has rejected a claim of privilege with regard to several documents that discuss the rationale for past decisions. Several documents created in 2013 (apparently in conjunction with the decision about renewal of SAMs for that year) involve the author asking the recipient about the justification or process that was used for a modification that was made in 2011 or earlier. Although such communications might arguably relate to a decision being made in 2013, discussion of the reasons that were given (or considered and rejected) for a decision made in 2011 are explanatory, rather than deliberative.
Based on these standards and the Court's review of each document listed in the log, the Court finds that the following documents
Having disposed of all other challenges, the Court finds that the following documents must be produced to Mr. Mohammed.
All documents on the final page of the log for which neither Bates numbers nor dates were provided. The Court finds that, by failing to adequately identify these documents in the record, the Defendants have not carried their burden of showing that the documents should be withheld from disclosure.
The Court directs that the Defendants shall produce the documents listed above to Mr. Mohammed within 7 days of the date of this Order. This production shall be subject to the existing protective order(s) that have applied to prior discovery produced to Mr. Mohammed.
For the foregoing reasons, Mr. Mohammed's Motion to Compel Discovery
In addition, the OEO log entries do not always correspond with the files on the CD. On many occasions, a single entry in the log will list a range of Bates numbers, but those pages are scattered in as many as 8 different files. Thus, the Court cannot simply follow the document sequence on the log itself, opening and reviewing each file listed in the "Bates Beginning" column, without having to also check to see whether the end of that file corresponds to the "Bates End" column on the log.
Finally, some documents appearing on the CD, for example Bates number 32-35, do not appear to correspond with any log entry, and several documents listed at the end of the log have no identifying Bates numbers or dates.
Several entries in the OEO's log refer to a periodically-issued document that is sometimes referred to as a "SAMs Master Listing." This lengthy document lists all of the inmates in BOP custody that are subject to SAMs, including certain information regarding each inmate's crime, the dates on which SAMs were imposed or modified for the inmate, and other information of a statistical nature. Because only a small portion of this document relates to Mr. Mohammed, the Court directs the Defendants to produce the generally-applicable portions of these documents, as well as the portions that specifically mention Mr. Mohammed; the remainder of the document — namely, the listing of other inmates subject to SAMs — are irrelevant to the claims herein and need not be produced. The Court will use a double-asterisk notation (**) to identify these documents in this Order. Those pages listed in the "Relevance" portion of the Order are pages that only contain information relating to other inmates and need not be produced. The Court will specifically identify the pages containing information to be produced from these documents in the "To be produced" section, infra., again using the double-asterisk identifier.
Also appearing several times in the OEO's production are e-mails in which the author sends copies of draft SAMs renewal letters for numerous inmates (including Mr. Mohammed) to the recipient. The OEO's production includes the draft letters relating to inmates other than Mr. Mohammed. Because letters regarding the renewal of SAMs for other inmates are irrelevant to Mr. Mohammed's claims, the Court excludes those documents on relevance grounds.
The Court rejects the Defendants' invocation of deliberative privilege with regard to this document. It appears in the record devoid of any other context to explain when and why it was created. Its contents do not clearly indicate that it was created during a deliberations over the implementation of a new policy; it is just as susceptible to an interpretation that it reflects notes taken by a new employee being advised of how the existing or newly-implemented procedures operate. The burden is on the Defendants to show, by a preponderance of the evidence, that the document is deliberative in nature. Here, it although it is possible that this document is pre-decisional and deliberative in nature, it is equally-likely that it is post-decisional in nature. Thus, the Defendants have not carried their burden to show that the document is privileged and the Court orders it produced.
