OPINION AND ORDER

SHIRA A. SCHEINDLIN, District Judge.

I. INTRODUCTION

In this civil-rights action, plaintiffs allege, among other things, that the New York City Police Department ("NYPD") requires rank and file officers—under threat of adverse employment consequences leveled by their superiors—to stop, question, and frisk specific numbers of individuals. Plaintiffs further contend that such mandatory quotas lead to unconstitutional racial profiling by officers, which is the gravamen of plaintiffs' complaint. The City of New York, Mayor Michael Bloomberg, Police Commissioner Raymond Kelly, and the other defendants adamantly deny the existence of compulsory quotas and racially-motivated policing. Defendants do not, however, disavow productivity goals aimed at ensuring police officers do the job for which they are employed and compensated. Defendants further state that any productivity goals are accompanied by a requirement that officers possess the legal predicate—reasonable suspicion of criminal activity—before pursuing a stop, question, and frisk.

By plaintiffs' own admission, they have encountered difficulty proving their quota theory, notwithstanding broad discovery.1 However, in the Spring of 2010, plaintiffs learned that Officer Adhyl Polanco of the 41st Precinct in the Bronx, Officer Adrian Schoolcraft of the 81st Precinct in Brooklyn, and officers from Transit District 23 in Queens separately alleged that "quotas"2 were imposed in their respective commands.3 The NYPD's Internal Affairs Bureau ("IAB"), which investigates claims of serious misconduct and corruption of members of the NYPD, is currently investigating these allegations.

Plaintiffs now seek an order from this Court compelling defendants to disclose documents from the IAB's investigations into the quota allegations. Defendants argue against disclosure on the grounds that the IAB files are confidential, contain irrelevant information, and are protected by the law enforcement privilege. Defendants provided the IAB files to the Court for in camera inspection, along with a declaration from Deputy Inspector David Grossi about the sensitive nature of the materials.

For the reasons provided below, defendants are ordered to disclose only those documents in the IAB files addressing the issue of quotas. From that limited set of documents, defendants may redact irrelevant information and may apply to the Court for redaction of truly sensitive information. All disclosures shall be subject to an attorneys' eyes only protective order.

II. THE LAW ENFORCEMENT PRIVILEGE

The purpose of the law enforcement privilege is `"to prevent disclosure of law enforcement techniques and procedures, to preserve the confidentiality of sources, to protect witness and law enforcement personnel, to safeguard the privacy of individuals involved in an investigation, and otherwise to prevent interference with an investigation.'"4 These are important goals of very real consequence.5 Nevertheless, the law enforcement privilege is not an instrument by which law enforcement agencies may shield themselves from public scrutiny. Therefore, courts must vigilantly review an assertion of the privilege and must often conduct an in camera inspection of the materials in question.6

The Second Circuit's recent decision in In re The City of New York enunciated with precision the legal standard for assessing when an invocation of the law enforcement privilege must yield to a party's need for discovery. The ultimate burden of showing that the law enforcement privilege blocks disclosure falls on the party asserting the privilege.7 Placing the burden on the party raising the privilege "ensure[s] that the privilege is presented in a deliberate, considered, and reasonably specific manner."8 To meet its burden, "[t]he party asserting the law enforcement privilege must show that the documents contain information that the law enforcement privilege is intended to protect."9

"[I]t should be clear that the focus of the law enforcement privilege is to protect information related to investigations."11 "`An investigation ... need not be ongoing for the law enforcement privilege to apply as the ability of a law enforcement agency to conduct future investigations may be seriously impaired if certain information' is revealed to the public."12 On the other hand, that an investigation is open does not guarantee protection from disclosure;13 otherwise, a party could simply keep an investigation open during the pendency of a lawsuit in order to avoid disclosure.

Because the law enforcement privilege is a qualified privilege (i.e., not absolute), the inquiry does not end with a successful showing that the privilege applies to the materials in question.14 While a "`strong presumption'" exists against lifting the privilege,15 the party seeking disclosure may rebut the presumption by establishing:

If the presumption against disclosure is successfully rebutted, "the district court must then weigh the public interest in nondisclosure against the need of the litigant for access to the privileged information before ultimately deciding whether disclosure is required."17 By its very nature, this "sensible balancing test"18 is multi-factored, non-mechanical, and circumstance-specific.

In balancing the interests favoring and disfavoring disclosure, the sensitivity of the information in question is a significant factor—the greater the sensitivity, the greater the protection, and vice versa. Further, the court "must consider the effect of a protective order restricting disclosure to the plaintiff and the plaintiffs attorney, or to the plaintiffs attorney alone. Such an order can mitigate many if not all of the oft-alleged injuries to the police and to law enforcement."19 Other protective measures are also available, such as redaction, limitations on where and when items may be viewed, and constraints on the manner in which information may be utilized post-disclosure.20

Another important factor is whether a lawsuit involves a matter of public concern such as civil rights—a factor that will usually support disclosure.21 The public has a profoundly important interest "in giving force to the federal civil rights law,"22 and in reasonable transparency from law enforcement agencies. As the court in Wood v. Breier eloquently explained:

In In re The City of New York, the Second Circuit took the "extraordinary"24 step of issuing a writ of mandamus to vacate a district court order compelling the NYPD to disclose "Field Reports" of undercover officers who had infiltrated organizations planning to protest the 2004 Republican National Convention ("RNC"). The Circuit held that the City of New York—the party asserting the privilege— met its burden of establishing that the law enforcement privilege applied to the Field Reports: (1) the documents "even in their redacted form, contain detailed information about the undercover operations of the NYPD"; (2) disclosing such information would hinder future NYPD undercover investigations; and (3) "even the redacted documents contain some information that could disclose the identity of an NYPD undercover officer."25

The risk of public disclosure of the Field Reports was so potentially perilous, the Circuit ruled that disclosure was not permitted even under various safeguards imposed by the district court26—namely that portions of the documents were to be redacted; that the production was limited to a single set of documents to be stored at the New York Civil Liberties Union; and that the documents were for attorneys' eyes only.27 Nor did the Circuit accept that filing the documents under seal with the district court would provide sufficient security from leaks.28

Turning to plaintiffs' rebuttal of the presumption against lifting the privilege, the Circuit explained that the only dispute between the parties was whether plaintiffs— suing the City for constitutional deprivations stemming from their arrests during demonstrations of the RNC—had a compelling need for the Field Reports. To assess this issue, the Circuit "review[ed] the general contours of the parties' putative arguments at trial" and observed that "[a]t issue ... is the seriousness of the threat facing the RNC and the City in the summer of 2004."29 Based upon its in camera review of the Field Reports, the Circuit held that because the documents did not undermine but rather reinforced information previously disclosed to plaintiffs, plaintiffs failed to establish any need for the Field Reports, let alone a compelling need.30 "In any event," the Circuit concluded, any need of plaintiffs for the information "certainly [did] not outweigh the public's substantial interest in nondisclosure as a means to preserve the integrity of the NYPD's undercover operations."31

III. APPLICATION

Based upon my careful in camera inspection of the nearly 2,100 pages at issue here, I make the following findings and conclusions. As an initial matter, the vast majority of documents in the IAB files are irrelevant to plaintiffs' claims—these irrelevant documents concern, for example, past inquiries entirely disconnected from the question of quotas and plaintiffs' broader claims.

For those documents that do concern quotas or are otherwise relevant, I find that defendants have met their burden that the law enforcement privilege is applicable to these items. At the general level, because IAB investigations are confidential, including within the NYPD, public disclosure of either the existence of an ongoing investigation or the specific investigative steps taken or planned could possibly taint the inquiry or chill the accessibility and candor of complainants and witnesses.32 Here, of course, the officers' quota allegations have been publicly disclosed—thus, in a sense, the cat is already out of the bag. On the other hand, potential targets of and witnesses to the IAB investigations may not know either that IAB is pursuing these matters or that they are implicated by the allegations. Additionally, the officers mentioned in the IAB documents have a limited privacy interest in the confidentiality of the files, particularly in unresolved accusations of misconduct or corruption.33

Next, plaintiffs have successfully rebutted the strong presumption against lifting the privilege. The information contained in the IAB files is not available through other discovery or from other sources,34 and plaintiffs have a compelling need for the information.35 As noted earlier, plaintiffs have been unable to prove their quota theory through other discovery. Nonetheless, plaintiffs' theory gained some possible traction, or at least unexplored avenues for discovery, when various police officers separately alleged the existence of quotas. Plaintiffs emphasize that they have obtained from Officers Polanco and Schoolcraft recordings each made of roll calls where numerous officers (of a variety of ranks) can be heard discussing target numbers or quotas for certain law enforcement activity.36 These recordings, at a minimum, bear on the question of whether quotas exist, even if they do not ultimately demonstrate plaintiffs' argument that mandatory quotas lead to unconstitutional stop, question, and frisks.37 That plaintiffs are in possession of these recordings and are poised to depose the officers heard on the recordings does not eliminate their need for the IAB materials.38 For example, plaintiffs have little, if any, information about the allegations from Transit District 23. Furthermore, to the extent that the IAB materials corroborate or contradict the officers' quota allegations, they are probative with respect to NYPD officials' deposition testimony denying the existence of quotas.

Because plaintiffs have overcome the presumption against lifting the law enforcement privilege, I must weigh the interests in favor of and against disclosure. The balance easily tips to plaintiffs. To begin, the IAB documents are a far cry from the highly-sensitive Field Reports that drove the Second Circuit's decision in In re The City of New York. Unlike the Field Reports, the quota information contained in the IAB files does not involve secret operations or undercover officers. Nor do the IAB investigations implicate such vital concerns as terrorism, mass unrest or riots, spiraling violence or chaos, or anything of the like.39 Disclosure of the IAB files will not cause an emergency or endanger any of the officers mentioned therein. The low sensitivity of the IAB materials weighs in favor of lifting the privilege.

Nor does disclosure of these IAB documents risk divulging any secret law enforcement techniques or procedures. The select materials ordered disclosed do not contain a roadmap or manual to IAB investigations generally or these investigations specifically. To the extent that the IAB materials show investigative steps taken by or available to the IAB, an attorneys' eyes only protective order alleviates any concern about about revealing this information to those who might abuse it (e.g., subjects and witnesses who are presently unaware that they are named in an IAB inquiry). Therefore, disclosure of the IAB materials to plaintiffs' counsel is highly unlikely to either impair the integrity of the IAB investigations or weaken any future law enforcement program.40 By contrast, the court in In re The City of New York was clearly concerned that if the Field Reports were leaked publicly, future undercover operations might be negatively affected. There is no comparable concern in this case.

Another factor weighing in favor of disclosure is that this suit involves questions of broad public concern and civil rights— racial profiling by the NYPD and unconstitutional searches and seizures. Moreover, as various courts have recognized, "the possibility of disclosure to civil rights plaintiffs is probably not of great import"41 to police officer witnesses in IAB investigations, who "do not have section 1983 cases in mind"42 at the time the investigations are conducted. If anything, "[a]n officer's incentives to hide a friend's misconduct, or to be scrupulously forth-coming lest he be disciplined for having concealed information, are probably much more closely tied to the internal investigative machinery than to the fear of civil rights litigation."43 This is especially true in this case because none of the IAB investigations relate to incidents involving the named plaintiffs.

As to the officers' privacy interest in the confidentiality of the IAB files, I first note that none of these officers are undercover, obviating any concern about blowing a cover and jeopardizing the safety of an officer. Furthermore, because the IAB investigations concern on-the-job conduct of police officers rather than matters in their personal lives, the privacy interests at issue here, though not inconsequential, are "`limited in view of the role played by the police officer as public servant who must be accountable to public review.'"44 "Moreover, `these privacy interests must be balanced against the great weight afforded to federal law in civil rights cases against police departments.'"45 In short, the officers' limited interest in the confidentiality of the IAB files must yield to the interests served by disclosure. Nonetheless, in order to minimize impact on the officers, I have carefully restricted the documents to be disclosed, omitting a great deal of personnel and personal information.

Defendants' reliance on Borchers v. Commercial Union Assurance Co. is misplaced. In Borchers, the court denied a request for discovery of witness statements and other information related to an open Fire Department of New York ("FDNY") criminal arson investigation based on the law enforcement privilege.46 The court concluded that disclosure of the identities of witnesses and the substance of witness interviews to plaintiffs could jeopardize the ongoing investigation by discouraging witness candor and cooperation in the investigation and in future investigations.47 Borchers, however, is distinguishable.48 First, Borchers did not involve civil rights claims, but rather was an action to recover the proceeds of an insurance policy.49 Second, unlike here, the party seeking the documents was the subject of the FDNY investigation.50 This difference is significant because a witness would be unlikely to make a statement to investigators implicating someone else if he knew his statements would be disclosed to the person he implicated.

Because an attorneys' eyes only protective order will mitigate defendants' concerns about disclosure of the IAB files, this factor also weighs in favor of disclosure. Defendants argue that "an attorney's eyes only disclosure is ill-suited to protect the law enforcement interests and would be meaningless to plaintiffs anyhow, since it would prohibit counsel from disclosing any information, including through their deposition questions."51 Defendants also object to plaintiffs' offer to keep the depositions of IAB investigators and witnesses confidential as insufficient to safeguard defendants' interests.52 Defendants argue that disclosure even to plaintiffs' counsel could cause potential witnesses or the subjects of the investigations to tailor their testimony or modify their behavior to escape detection of misconduct. However, if plaintiffs' counsel cannot disclose the documents to anyone and the depositions of IAB investigators and witnesses are kept confidential, there is little chance that potential witnesses or the subjects of the investigations will learn any of this information.

In sum, restricting disclosure to only a small portion of the IAB files, redacting irrelevant and truly sensitive information, and imposing an attorneys' eyes only protective order is a sensible balance between plaintiffs' compelling need for the information and the low sensitivity of the materials generally. I reiterate that the complaining officers' quota allegations are public, meaning the officers mentioned in the IAB files may already know they are being investigated. Indeed, my review of the files indicates that many if not all of the officers named appear to have already been contacted by IAB, further diminishing any possibility that disclosure to plaintiffs' counsel will negatively impact the investigations at issue here. Nor will any information disclosed here affect any future IAB investigations. Finally, to further limit the scope of disclosure—and to reduce defendants' burden associated with generating redacted documents—duplicative information need not be produced.

IV. CONCLUSION

Plaintiffs' motion to compel is granted. Defendants are ordered to disclose the following documents:

Because the IAB investigations are open and ongoing, defendants are ordered to continue making disclosures consistent with this Opinion and Order.54

For all documents ordered disclosed or to which the continuing obligation of disclosure attaches, defendants may redact information irrelevant to the issue of quotas, and may also apply to the Court for redaction of information that, upon careful reflection, is truly sensitive.

All disclosures shall be subject to an attorneys' eyes only protective order negotiated by the parties or imposed by the Court.

SO ORDERED: