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May 23, 1985


The opinion of the court was delivered by: Aspen, District Judge:


This case is on remand from the decision of the Court of Appeals last year ordering this Court to determine "whether the Board is receiving the maximum level of funding that is available under the criteria of programs through which funds for desegregation can be disbursed." United States v. Bd. of Education of the City of Chicago, 744 F.2d 1300, 1306 (7th Cir. 1984) ("Board II"), cert. denied, ___ U.S. ___, 105 S.Ct. 2358, 86 L.Ed.2d 259 (1985). The mandate entails, among other things, a thorough review of how the Secretary exercised his discretion in allocating funds already appropriated by Congress for school desegregation. The parties have engaged in intensive discovery in preparing for the Court's initial decision on remand concerning the Secretary's allocation of funds for Fiscal Year ("FY") 1984. The Secretary has refused to produce twenty-seven documents sought by the Board, asserting the deliberative-process privilege as to all of them and the attorney-client privilege and the work-product immunity as to two of them. The Board has moved to compel production. For the reasons stated below, we order the Secretary to produce all of the documents to the Court for an in camera inspection, after which we will rule on the availability of each document.

1. The Deliberative-Process Privilege

The Secretary relies mostly on the deliberative-process privilege in withholding the documents, so we will focus on that privilege first. Sometimes called the "predecisional privilege," it is unique to government and serves to protect the quality of the flow of ideas within a government agency. See, e.g., Coastal States Gas Corp. v. Dept. of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). The privilege extends only to communications which are predecisional, that is, generated before the adoption of agency policy, and deliberative, that is, reflecting the give-and-take of the consultative process.*fn1 Id.; see also Resident Advisory Board v. Rizzo, 97 F.R.D. 749, 751 (E.D.Pa. 1983). Communications made after the decision and designed to explain it are not privileged. Rizzo, 97 F.R.D. at 751. When the privilege does apply, it is qualified rather than absolute and "can be overcome if the party seeking discovery shows sufficient need for the otherwise privileged material." Id. at 752. And since the benefits are "`at best indirect and speculative,' [the privilege] must be strictly confined `within the narrowest possible limits consistent with the logic of [its] principles.'" Id., quoting In re Grand Jury Proceedings, 599 F.2d 1224, 1235 (3d Cir. 1979).

These abstract principles are easier to state than apply. Courts have created a formalistic two-step procedure in deciding whether to apply the privilege. The first step is a threshold one. The Court must first decide whether the government has shown that the privilege can apply at all. If so, the Court engages in the process noted above of balancing the litigant's need for disclosure against the government's need for secrecy. The first step in turn entails three requirements: (1) There must be a formal claim by the department head with control over the matter, after personal consideration of the problem; (2) the responsible official must demonstrate by affidavit precise and certain reasons for preserving the confidentiality of the documents in question; (3) the documents must be specifically identified and described. See Rizzo, 97 F.R.D. at 752-53. Although not doing so when he first claimed the privilege, the Secretary himself has now formally invoked the privilege by an affidavit which states that he has personally considered the problem. Thus, the first part of the threshold step is met. The parties dispute whether the Secretary has satisfied the second and third parts.

The Secretary has asserted the privilege with respect to twenty-seven documents. He has withheld more than three-fourths of these, twenty-one, from the Board, and has given the Board redacted copies of the other six. In his affidavit, the Secretary has briefly stated in conclusory terms that all of these documents are predecisional and deliberative.*fn2 An attachment to the affidavit identifies and briefly describes each of the documents.*fn3 Although brief and conclusory, the Secretary's showing has met the threshold step of asserting the privilege. While the Court is sensitive to the Board's concerns that the Secretary's affidavit is brief and argumentative rather than factual, it is equally sensitive to the reality that it is hard to be very specific without violating the confidences the deliberative process privilege is meant to protect. Cf. Antonelli v. Federal Bureau of Investigation, 721 F.2d 615, 617 (7th Cir. 1983) (FOIA context), cert. denied, ___ U.S. ___, 104 S.Ct. 2399, 81 L.Ed.2d 355 (1984). But the Secretary's mere assertion of the privilege does not necessarily mean he can withhold all or even any of the documents. As noted above, we must balance the Secretary's need for confidentiality against the Board's need for disclosure. In so doing, we will not rely on mere conclusory assertions. We will balance the interests after reviewing the documents in camera, so that we can make an informed analysis.

An in camera inspection may properly be used to decide whether a party's claim of litigative need outweighs the government's interest in confidentiality. See In re Agent Orange Product Liability Litigation, 97 F.R.D. 427, 434 (S.D.N.Y. 1983). Though not automatic, such an inspection has grown more common. Id. And in camera inspection has been used when the private party makes a showing of relevancy, which is "the preliminary showing of necessity which permits at least an in camera review." McClelland v. Andrus, 606 F.2d 1278, 1290 (D.C. Cir. 1979).

The Board has made this preliminary showing of necessity warranting in camera review. Indeed, although we of course express no firm opinion without first seeing the documents, we venture to say that the Board will probably be able to make a very powerful showing of necessity.*fn4 It is hard to imagine a case in which the government's deliberative process is more relevant or crucial. At dispute is whether the Secretary has violated "a unique funding provision in a conynt decree that constitutes an unprecedented settlement of a school desegregation claim by the United States." Board II, 744 F.2d at 1304. We remind the Secretary that this consent decree imposes "`a substantial obligation on the government to provide available funds to the Board.'" Id., quoting, Board I, 717 F.2d 378, 383 (7th Cir. 1983). The government conceded at oral argument in Board II that in fulfilling the consent decree it was going to give the Board "top of the list priority" for desegregation assistance. Id. at 1305. The government also has conceded that the consent decree "binds the Secretary of Education's discretion with respect to the funds that may be used for school desegregation pursuant to congressional appropriation, and [it] conceded that a district court may review the Secretary's exercise of discretion in distributing those funds to the board." Id. at 1306 n. 7. Clearly, then, this is not the usual "deliberative process" case in which a private party challenges governmental action or seeks documents via the Freedom of Information Act, and the government tries to prevent its decisionmaking process from being swept up unnecessarily into public. Here, the decisionmaking process is not "swept up into" the case, it is the case. The issue here is the deliberative process, and that issue has been defined in part by the United States and the Seventh Circuit. The United States has voluntarily bound itself to a consent decree under which it has made a great commitment to the Board; the Board alleges that the United States has violated its commitment; the government has conceded that its decisionmaking process is relevant to this Court's decision on whether the consent decree was violated; and, finally, the Court of Appeals has remanded this case for "a determination of whether the Board is receiving the maximum level of funding," that is, an inquiry into the decisionmaking process. Thus, the Secretary's assertion of the privilege, if sustained, could have the harmful effect of preventing this Court from fulfilling its very mission on remand and depriving the Board of a full hearing on its case.*fn5

We reject the Secretary's argument that the documents are not relevant. The Secretary claims that it has already produced documents and information concerning the funding decisions he actually made. The documents withheld are merely "pre-decisional documents containing recommendations, advice, and opinions that were not adopted by the Secretary." United States Memorandum in Opposition to the Chicago Board of Education's Motion to Compel at 2 (emphasis in original). While we agree that this description of the documents, if true, brings them within the privilege for purposes of balancing, that does not make them irrelevant to this proceeding. The nature of this unique case is such that the "roads not taken" are as relevant as those taken. The recommendations rejected and options considered are exactly what the Court needs to consider to fulfill its mandate of deciding whether the Secretary actually gave the Board "top of the list priority." Likewise, we agree with the Board that a decision to fund one program could be tantamount to a decision not to fund the Board. This obviously bears on whether the Secretary violated his obligations under the consent decree.

          2. Attorney-Client Privilege and Work-Product

The Secretary also asserts the attorney-client privilege and work-product immunity with respect to two of the twenty-seven documents.*fn6 As with the other documents, we will rule on these issues following an in camera inspection.

The attorney-client privilege is narrower than the work-product immunity. Indeed, like the deliberative-process privilege, it must be "strictly confined within the narrowest possible limits." United States v. Lawless, 709 F.2d 485, 487 (7th Cir. 1983). Its elements are these:

    (1) Where legal advice of any kind is sought
  (2) from a professional legal adviser in his
  capacity as such, (3) the communications relating
  to that purpose, (4) made in confidence (5) by
  the client, (6) are at his instance permanently
  protected (7) from disclosure by himself or by
  the ...

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