The April 20, 2007 Memorandum and Order - 95K

Congrats are in order to Beldock, Levine & Hoffman, and Rachel Kleinman, Claire Norins, and Jonathan Moore for their hard work to obtain this ruling, which I am cutting and pasting below in its entirety:

- - - - - - - - - - - - - - - - - -:

LEONARD FRIEDMAN, as parents and :
natural guardians of EMILY :
as parent and natural guardian of :
KATE ESPOSITO, individually, and :
on behalf of a class of all others :

similarly situated, : :
- against ­ : :
THE CITY OF NEW YORK, a municipalentity; MICHAEL BLOOMBERG, Mayorof the City of New York; RAYMONDKELLY, New York City PoliceCommissioner; JOSEPH ESPOSITO, : : : : :

Chief of Department, New York City :

Police Department; THOMAS GRAHAM, :
Commander, Disorders Control Unit, :
New York City Police Department; :
BRUCE SMOLKA, Assistant Chief, :
Patrol Borough Manhattan South; :
Patrol Borough Bronx; JOHN J. :
COLGAN, Deputy Chief and :
Commanding Officer, Pier 57; New :
York Police Supervisor MICHAEL :
INGRAM; New York Police Supervisor :
ROMAN; New York City Police :
RODRIGUEZ, Shield No. 21015, :

New York City Police Supervisors :
and Commanders RICHARD ROEs 1-50; :
New York City Police Officers JOHN :
DOEs 1-50, individually and in :
their official capacities, jointly :
and severally, :

Defendants. :
- - - - - - - - - - - - - - - - - -:

This case is one of many cases arising from the arrests of
approximately 1,800 people during the Republican National
Convention (the “RNC”) in New York City in the summer of 2004.
Throughout the litigation, the City of New York and the individual
defendants (collectively, the “City”) have withheld or redacted a
number of documents requested by the plaintiffs on the basis of
various privileges. On March 14, 2007, I granted in part and
denied in part the plaintiffs’ motion to compel production of
documents that the City claimed were subject to the self-critical
analysis privilege, the attorney-client privilege, and the
deliberative process privilege. MacNamara v. City of New York, No.
04 Civ. 9216, 2007 WL 755401 (S.D.N.Y. March 14, 2007). The
plaintiffs now seek an order compelling the City to produce in
unredacted form additional documents that the City has withheld on
the basis of the deliberative process privilege and the law
enforcement privilege. In addition, the plaintiffs seek an order
reopening depositions at which the City instructed witnesses not to
answer questions regarding the presence of undercover or
plainclothes officers at demonstrations. For the reasons set forth
below, the plaintiffs’ motion is granted in part and denied in


A. Deliberative Process Privilege

1. Legal Standard

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’ . . . .” Tigue v. United States
Department of Justice, 312 F.3d 70, 76 (2d Cir. 2002) (quoting
Department of the Interior v. Klamath Water Users Protective
Association, 532 U.S. 1, 8 (2001)). The privilege protects
“subjective documents which reflect the personal opinions of the
writer rather than the policy of the agency.” Grand Central
Partnership v. Cuomo, 166 F.3d 473, 482 (2d Cir. 1999) (quoting
Ethyl Corp. v. United States Environmental Protection Agency, 25
F.3d 1241, 1248 (4th Cir. 1994)).

The rationale behind the privilege is “the obvious
realization that officials will not communicate candidly
amongst themselves if each remark is a potential item of
discovery and front page news, and its object is to


I have reviewed in camera each of the documents at issue


enhance the quality of agency decisions, by protecting
open and frank discussion among those who make them
within the Government.” Klamath, 532 U.S. at 8-9
(quoting National Labor Relations Board v. Sears, Roebuck
& Co., 421 U.S. 132, 151 (1975)); accord Coastal States
Gas Corp. v. Department of Energy, 617 F.2d 854, 866

(D.C. Cir. 1980) (“The [deliberative process] privilege
has a number of purposes: it serves to assure that
subordinates within an agency will feel free to provide
the decisionmaker with their uninhibited opinions and
recommendations without fear of later being subject to
public ridicule or criticism; to protect against
premature disclosure of proposed policies before they
have been finally formulated or adopted; and to protect
against confusing the issues and misleading the public by
dissemination of documents suggesting reasons and
rationales for a course of action which were not in fact
the ultimate reason for the agency’s action.”).

Tigue, 312 F.3d at 76.

The privilege applies to inter-agency or intra-agency
communications that are both “predecisional” and “deliberative.”
Tigue, 312 F.3d at 76. A document is “predecisional” when it is
“prepared in order to assist a decisionmaker in arriving at his
decision.” National Council of La Raza v. Department of Justice,
411 F.3d 350, 356 (2d Cir. 2005) (quoting Grand Central
Partnership, 166 F.3d at 482). In order to assert the privilege,

the agency “must be able to demonstrate that . . . the
document for which . . . privilege is claimed related to
a specific decision facing the agency.” Tigue, 312 F.3d
at 80. This is to be distinguished from an agency’s
“routine and ongoing process of self-evaluation,” which
is not covered. See id. at 80 (quoting Maricopa Audobon
Society v. United States Forest Service, 108 F.3d 1089,
1094 (9th Cir. 1997)).

Haus v. City of New York, No. 03 Civ. 4915, 2004 WL 3019762, at *3
(S.D.N.Y. Dec. 29, 2004). A document is “deliberative” when it is

“actually . . . related to the process by which policies are
formulated.” La Raza, 411 F.3d at 356 (quoting Grand Central
Partnership, 166 F.3d at 482). The privilege “does not protect a
document which is merely peripheral to actual policy formation; the
record must bear on the formulation or exercise of policy-oriented
judgment.” Tigue, 312 F.3d at 80 (quoting Grand Central
Partnership, 166 F.3d at 482).

“Purely factual” material is not protected by the privilege.
Grand Central Partnership, 166 F.2d at 482; see also National
Congress for Puerto Rican Rights v. City of New York, 194 F.R.D.
88, 93 (S.D.N.Y. 2000); Resolution Trust Corp. v. Diamond, 137

F.R.D. 634, 640-41 (S.D.N.Y. 1991). Furthermore, the privilege
is a qualified one, requiring courts to balance the agency’s
interest in non-disclosure against “the public interest in opening
for scrutiny the government’s decision-making process.” Resolution
Trust Corp., 137 F.R.D. at 642 (quoting In Re Franklin National
Bank Securities Litigation, 478 F. Supp. 577, 582 (E.D.N.Y. 1979)).

2. Civil Disturbance Subcommittee Documents

The New York City Police Department (the “NYPD”) began
planning for the RNC more than a year before the convention.
(Declaration of Raymond W. Kelly dated Feb. 23, 2007 (“Kelly
Decl.”), attached to Letter of Cheryl L. Shammas dated Feb. 23,
2007 (“Shammas 2/23/07 Letter”), ¶ 2). To facilitate planning, the
work was divided among several committees, each of which assigned

tasks to various subcommittees. (Kelly Decl., ¶ 2). The
committees were overseen by Assistant Chief Jack McManus, the
NYPD’s RNC Coordinator. (Kelly Decl., ¶ 2). The NYPD Executive
Committee held weekly meetings at which Assistant Chief McManus,
Police Commissioner Raymond W. Kelly, and various other high-
ranking NYPD officials discussed the merits of the committees’
recommendations. (Kelly Decl, ¶¶ 3-4).

One of the committees involved in RNC planning was the Civil
Disturbance/Prisoner Processing Subcommittee (the “Civil
Disturbance Subcommittee”), which included representatives from the
NYPD, the United States Secret Service, and various other city,
state, and federal agencies. (Kelly Decl., ¶¶ 5-6). The City has
withheld agendas for Civil Disturbance Subcommittee meetings held
on January 13, May 5, and July 21, 2004, as well as memoranda
describing what was discussed at each meeting. The meeting agendas
contain lists of new members, lists of attendees at previous
meetings, and brief summaries of issues discussed at previous
meetings. The memoranda, written by various NYPD officials for the
benefit of Assistant Chief McManus, consist of brief descriptions
of issues and plans discussed at the meetings. Having reviewed
these documents in camera, I find that they do not fall within the
scope of the deliberative process privilege.

As an initial matter, lists of committee members and persons
in attendance at meetings are plainly factual information not

subject to the privilege. Moreover, while it is true in some sense
that the documents “reflect deliberations and discussions” about
plans for the RNC (Shammas 2/23/07 Letter at 4), that bare
assertion is, as I have said before, insufficient to justify
application of the privilege. See Schiller v. City of New York,
No. 04 Civ. 7922, 2007 WL 136149, at *9-10 (S.D.N.Y. Jan. 19, 2007)
(rejecting claim of privilege based upon assertion that document
“reflect[ed] internal discussions among top NYPD executives,
recommendations and proposals for policing the RNC”). The
summaries contained in the meeting agendas merely state that
certain issues were discussed. They are descriptive rather than
deliberative, and do not contain the personal opinions of any
member of the committee or even the recommendations of the
committee as a whole. The memoranda, which are essentially minutes
of the meetings, similarly do not contain the recommendations or
opinions of the writers or of any other members of the committee,
but merely describe the issues discussed.

The City attempts to bolster its assertion of the privilege
with an affidavit from Commissioner Kelly in which he states that
the Executive Committee “at its [] weekly meetings, assessed the
merits of [] proposals [put forward by the various RNC committees]
while engaging in discussions and deliberations on various planning
tasks and operational issues that needed to be addressed.” (Kelly
Decl., ¶ 3). While this statements is undoubtedly true, it does

not establish that the particular documents at issue here were
created “in order to assist an agency decisionmaker in arriving at”
a particular decision. La Raza, 411 F.3d at 356 (quoting Grand
Central Partnership, 166 F.3d at 482). Instead, the documents
describe reports from various agencies and committees regarding the
current state of plans for the RNC. The deliberative process
privilege “does not operate indiscriminately to shield all
decision-making by public officials” from discovery in civil cases.
Grossman v. Schwartz, 125 F.R.D. 376, 381 (S.D.N.Y. 1989) (citation
omitted). These memoranda are not “contemplative, deliberative,
analytical documents, weighing the pros and cons of a given course
of action.” Associated Press v. United States Department of
Defense, No. 05 Civ. 5468, 2006 WL 2707395, at *8 (S.D.N.Y. Sept.
20, 2006). They cannot be considered “deliberative” because they
are not “indicative of the agency’s thought processes,” Local 3,
International Brotherhood of Electrical Workers v. National Labor
Relations Board, 845 F.2d 1177, 1180 (2d Cir. 1988), and do not
reflect “the give-and-take of the consultative process.” Coastal
States Gas Corp., 617 F.2d at 866. Accordingly, they are not
subject to the privilege and must be disclosed.

3. Criminal Justice Bureau Documents

The NYPD Criminal Justice Bureau (the “CJB”) was responsible
for developing plans for arrest processing during the convention.
(Kelly Decl., ¶ 2). The City has withheld the following CJB­
related documents: (1) a February 19, 2004 memorandum from Deputy
Inspector Matthew Pontillo of the CJB to Assistant Chief McManus;

(2) a PowerPoint presentation dated April 1, 2004 entitled “Arrest
Processing Plan for the Republican National Convention”; (3) a
document containing hand-drawn and computer-generated flow charts
illustrating the Mass Arrest Processing Plan (the “MAPP”) for the
RNC; and (4) an undated PowerPoint presentation describing plans
for the use of 100 Centre Street as an arrest processing site
during the RNC.

The February 19, 2004 memorandum outlines plans discussed at
a meeting held that day between Assistant Chief McManus, Assistant
Chief Patrick Devlin, and Deputy Inspector Pontillo. Much like the
memoranda described above, it is not deliberative; it simply sets
forth the current state of plans for the RNC and indicates that
several topics had been identified as “issues.” The remaining
documents are also not deliberative. They describe the MAPP that
the NYPD was planning to use at the time the documents were
created. There is no reason to believe that disclosure of these
documents would stifle “open and frank discussion,” Tigue, 312 F.3d
at 76 (quoting Klamath, 532 U.S. at 8-9), because the documents
neither evaluate various alternatives nor discuss any particular
individual’s opinions or ideas regarding the NYPD’s plans for the
RNC. Nor do they “suggest[] reasons and rationales for a course of
action which were not in fact the ultimate reason for the agency’s

action.” Coastal States Gas Corp., 617 F.2d at 866. They contain
factual information regarding the MAPP that the NYPD planned to use
at the time the documents were created.2 The fact that the MAPP
described therein is not the same MAPP that was ultimately used,
(Shammas 2/23/07 Letter at 5), does not bring non-deliberative
documents within the scope of the privilege. Therefore, these
documents must also be disclosed to the plaintiffs.

4. E-mails

The City has also withheld two e-mails and redacted a third on
the basis of the deliberative process privilege. The withheld e-
mails are both dated August 5, 2004, and were sent by Paul J.
Browne of the NYPD to Edward Skyler of the Office of the Mayor.
The redacted e-mail is dated August 10, 2004, and was sent by
Detective Michael Gorsky to Assistant Chief John Colgan.

The withheld e-mails relate to a planned meeting to be
attended by the Mayor and the Police Commissioner on August 9,
2004. Both include a list of “Possible Mayor Talking Points”
suggested by Mr. Browne, and one includes a description of the
NYPD’s plans to stage drills prior to the RNC. The City contends
that these e-mails are protected by the privilege because they


The April 1, 2004 PowerPoint presentation also contains
factual information regarding the MAPP used for a February 15, 2003
demonstration against the then-impending war in Iraq. The flow
chart document has a cover page briefly listing “issues” to be
considered, but does not contain any statements that could
reasonably be considered “deliberative.”

reflect the opinions and suggestions of the writer and “were
communicated prior to any final decision on the topic discussed.”
(Shammas 2/23/07 Letter at 6). However, as noted above, the
deliberative process privilege does not “shield all decision-making
by public officials.” Grossman, 125 F.R.D. at 381. As I stated in
a prior decision in a related RNC action,

[i]n arguing that the deliberative process privilege
applies to these documents, among others, the City asks
the Court to accept that virtually all decisions made by
the NYPD [and other agencies] regarding the RNC were
matters of important public policy. See Soto v. City of
Concord, 162 F.R.D. 603, 612 (N.D. Cal. 1995) (“The
deliberative process privilege should be invoked only in
the context of communications designed to directly
contribute to the formulation of important public
policy.”). This is plainly not the case. Instead, the
Court must determine in each case whether the decision at
issue was a “routine operating decision” rather than a
“policy oriented judgment” to which the privilege would
apply. See E.B. v. New York City Board of Education, 233

F.R.D. 289, 293 (E.D.N.Y. 2005).
Schiller, 2007 WL 136149, at *10. Whether or not the Mayor should
use Mr. Browne’s suggested “talking points” is not the sort of
public policy decision that falls within the scope of the
privilege. The discussion of planned security drills is also not
covered by the privilege, because even assuming that security
drills qualify as a matter of policy, the e-mail does not contain
anything that could be characterized as a recommendation, proposal,
or opinion regarding the drills.

The redacted e-mail relates to the NYPD’s use of Pier 57 as a
“Post-Arrest Staging Site.” The City asserts that the e-mail

contains Detective Gorsky’s “opinions” regarding “the preparation
of Pier 57” for use during the RNC. (Shammas 2/23/07 Letter at 6).
However, in an earlier decision, I found that “[d]ecisions
regarding work to be done at Pier 57 [in preparation for the RNC]
are routine operating decisions” not subject to the privilege.
Schiller, 2007 WL 136149, at *10. Furthermore, having reviewed the
e-mail, I find it does not contain anything that could plausibly be
characterized as an “opinion.” The redacted portions of the e-mail
are not deliberative. The City must therefore produce an
unredacted copy of this e-mail, as well as the two e-mails it has

B. Law Enforcement Privilege

1. Legal Standard
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[es] and law enforcement personnel, to
safeguard the privacy of individuals involved in an
investigation, and otherwise to prevent interference with

an investigation.
In re Department of Investigation of the City of New York, 856 F.2d
481, 484 (2d Cir. 1988) (citation omitted). In order to sustain
the privilege, a party “must make a clear and specific evidentiary
showing of the nature and extent of the harm that is likely to be
encountered if disclosure is permitted, and they may not rely
simply on generalized reiterations of the policies underlying the
privilege.” Kunstler v. City of New York, Nos. 04 Civ. 1145, 04

Civ. 665, 04 Civ. 2611, 2005 WL 2656117, at *1 (S.D.N.Y. Oct. 18,
2005); see also MacWade v. Kelly, 230 F.R.D. 379, 381 (S.D.N.Y.
2005) (stating that party asserting law enforcement privilege “must
make a clear showing of harm”).

This privilege, like the deliberative process privilege, is a
qualified one. See Kunstler, 2005 WL 2656117, at *1; MacWade, 230

at 381. When determining whether to order disclosure,
courts should therefore “‘balance the public interest in
nondisclosure against the need of the particular litigant for
access to the privileged information.’” Kunstler v. City of New
York, 439 F. Supp. 2d 327, 328 (S.D.N.Y. 2006) (quoting Friedman v.
Bache Halsey Stuart Shields, Inc., 738 F.2d 1336, 1341 (D.C. Cir.
1984)); accord Kitevski v. City of New York, No. 04 Civ. 7402, 2006
WL 680527, at *3 (S.D.N.Y. March 16, 2006). “However, the party
asserting the privilege must ‘make a threshold showing that the
privilege attaches’ before the court is required to balance the
parties’ interests.” City of New York v. Beretta U.S.A. Corp., 222

51, 66 (E.D.N.Y. 2004) (quoting United States v. United
States Currency in the Sum of Twenty One Thousand Nine Hundred
Dollars, No. 98 CV 6168, 1999 WL 993721, at *3 (E.D.N.Y. Sept. 21,

2. Disorder Control Incident Documents

Prior to the RNC, a number of high-ranking NYPD officials met
at the Police Commissioner’s office to plan for “anticipated types

of possible civil disorder.” (Declaration of Thomas Graham
(“Graham Decl.”), attached to Shammas 2/23/07 Letter, ¶ 6). At
these meetings, the officials reviewed documents known as “Disorder
Control Incident Tabletop Exercises” (“Tabletop Exercises”), which
contain “hypothetical scenarios” involving what the City refers to
as “terrorist activity.” (Graham Decl., ¶ 6). The Tabletop
Exercises also contain “talking points” intended to stimulate
discussion regarding potential problems the NYPD might encounter in
dealing with similar incidents. (Graham Decl., ¶ 7). After these
meetings, unspecified persons prepared “Control Incident Action
Items” (“Action Items”), which contain “proposed courses of action
to be undertaken by [NYPD officials]” to address issues identified
during the Tabletop Exercises. (Graham Decl., ¶ 8). The City has
withheld both the Tabletop Exercises and the Action Items on the
basis of the law enforcement privilege.

The City relies on an affidavit from Chief Thomas Graham,
Commanding Officer of the Disorder Control Unit, in which he claims
that disclosure of the Tabletop Exercises and Action Items

would educate groups with a history of unlawful or
violent behavior and would-be terrorists about how the
Department would respond to the scenarios therein and the
types of scenarios that the Department is prepared to
handle (and hence may not be prepared to handle). It
also educates individuals on disruptive tactics typically
used at demonstrations and the Department’s methods and
weaknesses in addressing those tactics. It would
similarly educate them on how to commit egregious acts
against the City; on how to shut down various City
facilities and/or systems of mass transportation; on how
to divert police resources; and on how to evade

(Graham Decl., ¶ 9).

The Tabletop Exercises contain several brief hypothetical
scenarios in which demonstrators threaten to wreak havoc in New
York City during the RNC. The City does not contend that these
scenarios contain, or are based upon, actual intelligence
information. As noted above, these scenarios are followed by very
broad questions intended to stimulate discussion. The Action Items
are vague instructions to various units within the NYPD. For
example, the Action Items include instructions such as “develop a
plan or strategy” for a particular type of incident, “ensure
adequate staffing resources” for certain units, and “determine the
technical feasibility” of a given strategy. Neither type of
document contains sufficiently specific information to raise
legitimate concerns about educating demonstrators regarding the
NYPD’s tactical weaknesses or its strategies for dealing with mass
disorder. Similarly, the City’s claim that these documents would
educate protesters about how to “commit egregious acts” against the
City is overblown. Another court has addressed a similar claim in
an unrelated mass-demonstration case, finding that

review of the materials in question demonstrates that the
[materials] are pitched at such a high level of
generality that the harm anticipated by [Chief Graham]
from public dissemination is simply unconvincing.
Indeed, the information . . . is both predictable and
lacking in specific detail, and hence there is no reason
to believe that, even if it fell into the hands of
someone intent on violence, it would offer meaningful

assistance in evasive tactics.
Kunstler, 2005 WL 2656117, at *3 (holding that law enforcement
privilege did not apply to NYPD “Disorder Control Guidelines”).

Moreover, there is a protective order in place in the
consolidated RNC actions that permits the City to designate
documents produced in discovery as “confidential.” Accordingly,
the information contained in these documents will not be circulated
publicly, but will be viewed only by plaintiffs’ counsel. The City
has offered “no information suggesting that such limited production
and circulation, with appropriate safeguards for return of these
materials at the conclusion of the litigation, poses any threat to
public order or safety.”3 Id.; see also Haus, 2004 WL 3019762, at
*5 (S.D.N.Y. Dec. 29, 2004) (“[G]iven the fact that these documents
may be produced under the terms of a strict confidentiality order,
it is entirely unclear how defendants expect that these supposedly
sensitive items of information will be dispersed over the internet

3 I find unpersuasive the City’s contention that as a result
of my recent decision in Schiller, 2007 WL 136149, the defendants
“can no longer rely on the protections of the protective order.”
(Shammas 2/23/07 Letter at 10). In that decision, I found that the
City had not shown good cause for the confidentiality designations
it had assigned to various documents pursuant to the protective
order. Under the protective order, which remains in place, any
confidentiality designation remains in place until challenged by
the other party, at which point the designating party bears the
burden of establishing that there is good cause under Rule 26(c) of
the Federal Rules of Civil Procedure. Good cause exists when
“disclosure will result in a clearly defined, specific, and serious
injury.” In Re Terrorist Attacks on September 11, 2001, 454 F.
Supp. 2d 220, 222 (S.D.N.Y. 2006) (quoting Shingara v. Skiles, 420
F.3d 301, 306 (3d Cir. 2005)).

to enable future demonstrators to outwit the Police Department.”).

3. Legal Subcommittee Meeting Documents

The City has produced to the plaintiffs two memoranda, dated
January 7, 2004 and March 2, 2004, from Deputy Chief John P.
Gerrish to Assistant Chief McManus, among others, describing Legal
Subcommittee meetings. The City has redacted portions of these
memoranda on the basis of the law enforcement privilege.4

With respect to the January 7 memorandum, the City claims that
part of the redacted material “pertain[s] to the use of modern
technology,” and that it would “inform individuals who are intent
on committing criminal activity about the existence and use of the
technology.” (Graham Decl., ¶ 16). The remainder, according to
the City, “contains information about the ongoing techniques and
methods of investigation of the NYPD’s Intelligence Division.”
(Shammas 2/23/07 Letter at 14). The City contends that
“[d]isclosure of this information would undermine the viability of
those techniques and methods . . . and [] compromise the NYPD[]
Intelligence Division’s abilities to investigate anticipated
unlawful activity and prevent civil disorder at future
demonstrations.” (Graham Decl., ¶ 17). Having reviewed the
redacted material, I find that there is no basis for these

4 The City has agreed to restore one redacted portion of the
March 2, 2004 memorandum that contains “information obtained from
public sources.” (Shammas 2/23/07 Letter at 14). I will therefore
address only the remaining redactions.

conclusory assertions. The City’s “generalizations plainly fail[]
to justify invocation of the privilege in light of the type of
information actually withheld.” Haus, 2004 WL 3019762, at *4.

The City contends that in reviewing the redacted sections of
the March 2, 2004 memorandum, it has determined that they “reflect
[] communications between the NYPD Legal Bureau [] and its
clients.” (Shammas 2/23/07 Letter at 14). Accordingly, the City
now asserts the attorney-client privilege, rather than the law
enforcement privilege, with respect to these sections. The first
redacted paragraph, which is paragraph 8(a) of the memorandum, does
not appear on its face to be a communication made for the purpose
of obtaining legal advice, and the City has given me no reason to
believe that it is. The second redacted paragraph, which is
paragraph 10, does appear to be an attorney-client communication
regarding legal advice.

Accordingly, the City must produce these memoranda in
unredacted form with the exception of paragraph 10 of the March 2,
2004 memorandum, which it may redact.

4. Mobile Reserve Sector After-Action Report and
Emergency Operations Center RNC Incident Reports
The “Mobile Reserve Sector After-Action Report” (“After-Action

Report”), authored by Chief Graham, is a “self-critique report” of
the kind described in my March 14, 2007 decision.5 See MacNamara

5 The City also asserts that this document is subject to the
self-critical analysis privilege. (Shammas 2/23/07 Letter at 15;

v. City of New York, No. 04 Civ. 9612, 2007 WL 755401, at *2

(S.D.N.Y. March 14, 2007). The document entitled “Emergency
Operations Center RNC Incident Reports” (“Incident Reports”) is a
computer log of RNC-related incidents.

The City has redacted from both documents information
regarding “how many officers (and of what rank) were deployed
during the RNC at certain locations throughout New York City”
(Graham Decl., ¶¶ 18, 20), and has redacted from the Incident
Reports “specific methods of investigation[] . . . used by the
NYPD.” (Graham Decl., ¶ 20). The City has also redacted the
section entitled “Key recommendations” from the After-Action
Report, along with information regarding daily NYPD operations
during the RNC. The City claims that disclosure of this
information would “severely compromise the effectiveness” of future
deployments by permitting individuals intent on criminal activity
to anticipate how the NYPD will respond to particular types of
events. (Graham Decl., ¶¶ 19-20). This explanation is once again
so vague that it provides little assistance to the Court in
determining whether the privilege applies.

Another court has already rejected the City’s claim that

RNC Defendants’ Privilege Log 2/3/06, attached as Exh. A to Letter
of Jonathan C. Moore dated Jan. 10, 2007 (“Moore 1/10/07 Letter”),
at 7). I have already rejected this contention with respect to
such “after-action reports.” See MacNamara, 2007 WL 755401, at *2­
6. In its opposition to the instant motion, the City has given me
no reason to reconsider that decision.

information regarding the number and rank of officers deployed at
demonstrations is protected by the law enforcement privilege.
Haus, 2004 WL 3019762, at *4-5. That court found that

[t]he number of police at specific locations was an
observable fact at the time of the [] demonstration.
Moreover, why that information would be useful to people
supposedly bent on mayhem in future demonstrations is
entirely a matter of mystery. Presumably, such
demonstrations will occur in different locales, will
feature larger (or smaller) numbers of demonstrators,
will pose different potential threats of law-breaking and
will thus present different contexts for the police to
invest manpower in specific locations.

Id. at *5. Furthermore, the remaining redacted information in the
After-Action report is highly specific to the RNC, and it is
difficult to imagine how it could be useful to persons determined
to foil the NYPD’s efforts to keep order at future demonstrations.
The “specific methods of investigation” redacted from the Incident
Reports are not described in any detail, and I see no reason to
believe that the disclosure of a mere mention of a type of
technology would jeopardize the NYPD’s ability to conduct future
investigations using that technology.

The City shall produce both documents to the plaintiffs
without the redactions described above, but may redact information
contained in the After-Action Report regarding locations considered
to be potential terrorist targets. (Bates Nos. 15011-15014).

5. Critical Mass Bike Block Demonstration Presentation

This document is a PowerPoint presentation that outlines the
NYPD’s planned response to a Critical Mass bicycle ride that took

place on August 27, 2004, several days before the RNC.6 (Graham
Decl., ¶ 21). The City contends, somewhat vaguely, that this plan
“will likely be used to combat unlawful conduct at future Critical
Mass Bike Riders,” and that disclosure would “render it
ineffective.” (Graham Decl., ¶ 21).

The plan outlined in the PowerPoint presentation focuses on a
specific route that the riders were expected to take on August 27,
2004, and contains photographs of locations along the route. It is
difficult to see how disclosure of this plan would jeopardize the
NYPD’s ability to police future Critical Mass rides, as the City
has given the Court no indication that this particular route has
been used by Critical Mass riders since the RNC, or that they are
likely to use it again. Moreover, the document refers to a number
of police tactics that are by now public knowledge. See Randal C.
Archibold et al., 100 Cyclists Are Arrested as Thousands Ride in
Protest, N.Y. Times, August 28, 2004, at B1. The document will

6 According to the City’s privilege log, this document was
also withheld on the basis of the deliberative process privilege.
(RNC Defendants’ Privilege Log 11/8/06 (“11/8/06 Log”), attached as
Exh. B to Moore 1/10/07 Letter, at 6). The City has not addressed
that claim in its opposition to the plaintiffs’ motion. In any
case, the document is not deliberative, and therefore not subject
to the privilege.

Along with the document entitled “Critical Mass Bike Block
Demo,” the City has submitted a document referred to in its
privilege log as “3 Squad Platoon Formations.” (11/8/06 Log at 6).
The plaintiffs do not appear to have challenged the City’s
assertions of privilege with respect to this document, and I assume
that it was submitted in error.

presumably be released pursuant to the terms of the protective
order, and there is no reason to believe that such limited
disclosure would jeopardize law enforcement interests.

6. Undercover Officers

Finally, the plaintiffs challenge the City’s assertion of the
law enforcement privilege to bar questioning at depositions
regarding the presence of undercover officers at RNC-related
demonstrations. The City asserts that “confirmation of [the
presence of undercover and plainclothes officers at demonstrations]
will defeat the element of uncertainty, which itself deters
criminal activity.” (Shammas 2/23/07 Letter at 12). However, the
fact that the NYPD has used undercover officers at protests is
already widely known. See Jim Dwyer, Police Memos Say Arrest
Tactics Calmed Protests, N.Y. Times, March 17, 2006, at A1; Jim
Dwyer, New York Police Covertly Join In at Protest Rallies, N.Y.
Times, Dec. 22, 2005, at A1. It is difficult to imagine how
disclosure of whether undercover officers were present at specific
demonstrations more than two years ago will do anything further to
eliminate “the element of uncertainty.” Thus, the City has not
made a sufficient showing of harm to demonstrate that the law
enforcement privilege is applicable here. See Kunstler, 439 F.
Supp. 2d at 328 (affirming magistrate judge’s ruling that law
enforcement privilege did not apply to presence of undercover
police officers at February 15, 2003 anti-war demonstration).

Accordingly, the plaintiffs may question witnesses at depositions
regarding the presence and activities of undercover officers at
RNC-related demonstrations, and may re-call those witnesses who
have previously been instructed not to answer such questions.

The plaintiffs seek to discover the identities of undercover
officers, “at a minimum,” insofar as those officers “witnessed,
participated in, or provided information for their arrest and
detention.” (Letter of Jonathan C. Moore dated March 16, 2007 at
10). The plaintiffs are entitled to discover the identity of such
officers, given the relevance of that information to their claims.
Of course, that information may be designated “confidential”
pursuant to the protective order and thereby limited to plaintiffs’
counsel. If the City determines that disclosure of an officer’s
identity to plaintiffs’ counsel would pose a significant safety
risk to the officer or would jeopardize an ongoing investigation,
the City may seek appropriate relief, such as an order permitting
the City to identify the officer by shield number or pseudonym.

The City has also withheld two documents that relate to the
use of undercover officers: (1) a June 4, 2004 memorandum from
Deputy Chief Louis M. Croce to Chief McManus, and (2) an August 9,
2004 memorandum from Chief Graham to the Commanding Officer of the
Building Maintenance Section. The June 4, 2004 memorandum lists
officers “deemed qualified to be plainclothes officers” during the
RNC. (Shammas 2/23/07 Letter at 13). This information is