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K.L. v. EDGAR

May 16, 1997

K.L., L.F., and R.B., on behalf of themselves and all persons similarly situated, Plaintiffs,
v.
JIM EDGAR, Governor of the State of Illinois, and ANN PATLA, Director of the Illinois Department of Mental Health and Developmental Disabilities, Defendants.



The opinion of the court was delivered by: ALESIA

 Before the court are plaintiffs' motion to compel discovery and defendants' renewed countermotion for a protective order on privileged and irrelevant documents. For the reasons that follow, the court grants in part and denies in part both motions.

 Plaintiffs seek 179 documents that are listed on defendants' privilege log but that plaintiffs claim nonetheless should be disclosed. Defendants claim that the bulk of these documents fall under the deliberative process, or executive, privilege, and that the remainder are protected by the attorney-client privilege or work product doctrine.

 II. DISCUSSION

 A. Judge Duff's prior rulings

 Plaintiffs contend that Judge Duff, to whom this case was assigned until late last year, ordered defendants to produce the documents now at issue on two separate occasions. Defendants dispute this contention. Plaintiffs have presented no written or oral orders of Judge Duff that clearly addressed precisely the issues now before the court. The court finds that Judge Duff did not make any prior rulings on the issues now before the court that were sufficiently clear and definite to become the law of the case. Consequently, the court will address the merits of the parties' motions.

 B. The deliberative process privilege

 The deliberative process privilege, also known as the executive privilege, protects communications that are part of the decision-making process of a governmental agency. United States v. Farley, 11 F.3d 1385, 1389 (7th Cir. 1993) (citing National Labor Relations Board v. Sears, Roebuck & Co., 421 U.S. 132, 150-52, 95 S. Ct. 1504, 1516-17, 44 L. Ed. 2d 29 (1975)). The privilege "serves to protect the quality of the flow of ideas within a government agency." United States v. Board of Educ. of the City of Chicago, 610 F. Supp. 695, 697-98 (N.D. Ill. 1985) (citing Coastal States Gas Corp. v. Dep't of Energy, 199 U.S. App. D.C. 272, 617 F.2d 854, 866 (D.C. Cir. 1980)). That is, 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 reasons for the agency's action.

 King v. Internal Revenue Service, 684 F.2d 517, 519 (7th Cir. 1982) (quoting Coastal States, 617 F.2d at 866).

 Because the deliberative process privilege exists to protect the governmental decision-making process, a document is protected under the privilege only if it is "'predecisional' -- generated before the adoption of an agency policy -- and 'deliberative' -- reflecting the give and take of the consultative process." Continental Illinois Nat'l Bank & Trust Co. of Chicago v. Indemnity Ins. Co. of N. America, No. 87 C 8439, 1989 WL 135203, *2 (N.D. Ill. Nov. 1, 1989) (citing Board of Educ. of the City of Chicago, 610 F. Supp. at 698; Coastal States, 617 F.2d at 866). See also Sears, 421 U.S. at 150, 95 S. Ct. at 1516 (deliberative process privilege protects from disclosure documents reflecting advisory opinions, recommendations, and deliberations comprising the process by which governmental decisions and policies are formulated). The privilege does not extend to factual or objective material or to documents that the agency adopts as its position on an issue. Continental Illinois, 1989 WL 135203, *2 (citing Environmental Protection Agency v. Mink, 410 U.S. 73, 87-89, 93 S. Ct. 827, 836-37, 35 L. Ed. 2d 119 (1973); Sears, 421 U.S. at 151-52, 95 S. Ct. at 1516-17).

 When the deliberative process privilege applies, it is qualified, rather than absolute, and "can be overcome if the party seeking discovery shows sufficient need for the otherwise privileged material." Board of Educ. of the City of Chicago, 610 F. Supp. at 698 (citing Resident Advisory Board v. Rizzo, 97 F.R.D. 749, 752 (E.D. Pa. 1983)). Moreover, "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."'" Board of Education of the City of Chicago, 610 F. Supp. at 698 (quoting Rizzo, 97 F.R.D. at 752 (quoting In re Grand Jury Investigation, 599 F.2d 1224, 1235 (3d Cir. 1979))).

 Thus, the court undertakes a two-step procedure in deciding whether the deliberative process privilege operates to protect government documents from disclosure. First, the court decides whether the government has shown that the privilege applies to the documents the government seeks to protect. For the government to satisfy this first step, three things must happen: (1) the department head with control over the matter must make a formal claim of privilege, after personal consideration of the problem; (2) the responsible official must demonstrate, typically by affidavit, precise and certain reasons for preserving the confidentiality of the documents in question; and (3) the official must specifically identify and describe the documents. Board of Educ. of the City of Chicago, 610 F. Supp. at 698 (citing Rizzo, 97 F.R.D. at 752-53). See also In re Consol. Litig. Concerning Int'l Harvester's Disposition of Wisconsin Steel, 1987 U.S. Dist. LEXIS 10912, Nos. 81 C 7076, 82 C 6895, and 85 C 3521, 1987 WL 20408, *8 (N.D. Ill. Nov. 20, 1987) (citing King, 684 F.2d at 519; United States Dep't of Energy v. Brett, 659 F.2d 154, 155 (Temp. Emer. Ct. App. 1981), cert. denied sub nom. Cotton Petroleum Corp. v. Edwards, 456 U.S. 936, 102 S. Ct. 1992, 72 L. Ed. 2d 456 (1982); Coastal States, 617 F.2d at 858, 861; Mobil Oil Corp. v. Dep't of ...


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