NAACP Legal Def. & Educ. Fund, Inc. v. DOJ, No. 18-4354, 2020 WL 5237765 (S.D.N.Y. Sept. 2, 2020) (Castel J.)

NAACP Legal Def. & Educ. Fund, Inc. v. DOJ, No. 18-4354, 2020 WL 5237765 (S.D.N.Y. Sept. 2, 2020) (Castel J.)

Re:  Request for records concerning five categories of documents in connection with collaborative reform assessment of North Charleston, South Carolina Police Department ("NCPD")

Disposition:  Granting defendants' motion for summary judgment; denying plaintiff's motion for in camera inspection

• Exemption 5, "Inter-Agency or Intra-Agency" Threshold Requirement:  The court holds that "the June 30 Draft, prepared by the Police Foundation as the technical assistance provider to the COPS Office on the NCPD [Collaborative Reform Initiative for Technical Assistance ("CRI-TA")] engagement, is an intra-agency document."
   
• Exemption 5, Deliberative Process Privilege:  "[T]he Court finds that as an intra-agency draft document that is both predecisional and deliberative, the June 30 Draft falls squarely within the type of documents protected by Exemption 5."  First, the court finds that "[t]he June 30 Draft was prepared for the express purpose of assisting the COPS Office in assessing the NCPD and how the NCPD could improve its policing practices."  "The Draft temporally precedes any decision by the COPS Office as to what to include in the finalized report, and whether to adopt the final report as COPS's official recommendation to the NCPD."  Second, the court finds that "[t]he June 30 Draft is also deliberative."  "The June 30 Draft reflects the then-ongoing collaboration between the Police Foundation and COPS on a document that contains preliminary assessments, initial findings, and proposed recommendations, along with notes and comments by the drafters."  "The Draft was subject to change, and its contents had not been verified."
   
• Litigation Considerations, "Reasonable Segregable" Requirements:  The court relates that "[t]he government conducted two line-by-line reviews of the June 30 Draft to determine which material was segregable and therefore could be disclosed without compromising agency deliberative process."  "The COPS Office determined, however, that the 'vast majority' of the factual material in the June 30 Draft was inextricably intertwined with deliberative information, and heavily redacted the document."  The court finds that "the selection and organization of factual material is protectable under Exemption 5 where the choice to include particular factual information would disclose the agency's deliberative process."  "The factual material that the Police Foundation and the COPS Office included in the June 30 Draft would reveal what the government considered significant to the project during the preliminary stages of creating the NCPD recommendation."  Additionally, the court finds that "the facts included in the June 30 Draft were subject to change and further verification."  "Therefore, the information that [plaintiff] submits should be disclosed had not attained the status of 'facts,' as distinguished from suppositions, and thus would not be subject to the 'inextricably intertwined' and 'reasonably segregable' analyses."
   
• Exemption 5, Foreseeable Harm:  The court holds that "[i]t is reasonably foreseeable that harm would result from disclosure of the redacted portions of the June 30 Draft."  'First, disclosure of unconfirmed suppositions in the draft could be misleading."  "The June 30 Draft's contents were subject to several further stages of review and revision, including for possible factual errors, and the report does not, in the state in which it was left, reflect the actual views, opinions, or recommendations of the COPS Office."  "Release of such material could therefore negatively affect the relationship of the NCPD with the communities it serves."  "Second, as [defendant] explains in his declaration, even though the NCPD CRI-TA engagement ended, the CRI-TA program is itself ongoing."  "The program relies on the voluntary engagement of law enforcement agencies requesting the assistance of the COPS Office, and requires the free exchange of information and feedback between and among COPS, technical assistance providers, and law enforcement agencies."  "Law enforcement may be hesitant to approach the COPS Office and engage in such deliberative processes if such information could be released to the public at preliminary stages."
   
• Litigation Considerations, In Camera Inspection:  The court holds that "[i]n camera review is not necessary for the Court to determine the appropriateness of the redactions to the June 30 Draft."  "[T]he Court finds that [defendant's] declarations sufficiently explain the reasons for the redactions in the Draft report."  "[T]he government's representations . . . have not been contradicted by other evidence[,] and [w]hile the June 30 Draft is the sole remaining document at issue, it is a 112-page report, and the Court's review of it in camera would not promote efficiency."