Noel v. City of New York
357 F. Supp. 3d 298
| S.D. Ill. | 2019Background
- Plaintiffs challenge New York City's Community Preference Policy as racially discriminatory and seek internal HPD documents; the Court reviewed several documents for deliberative process privilege after Judge Swain's December 12, 2018 order requiring broader relevance analysis.
- Eight documents (the three "Clawback Documents" and five others) were re-examined; some materials had been partially produced or previously redacted.
- The contested Clawback Documents are drafts and presentations created after HUD's 2015 AFH rule, describing AFH obligations, HUD "contributing factors" (including community opposition), data needs, and preliminary analyses; City officials say no final decisions are reflected.
- The other documents include a Housing Connect issues chart, drafts and emails about East New York and Inwood plans, and a ULURP decision memo—most contain deliberative, pre-decisional material not directly addressing the Community Preference Policy.
- The court applied the deliberative process privilege standard (pre-decisional and deliberative) and the Rodriguez five-factor balancing test, but recalibrated relevance broadly per Judge Swain's Order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Clawback Documents (AFH drafts/presentations) are protected | Documents contain evidence that City knew community opposition to fair housing was race-based and that policy aimed to placate such opposition; thus relevant | Documents are pre-decisional drafts reflecting interagency deliberations and would chill candid policymaking if disclosed | Court: Documents are pre-decisional and deliberative but, under broadened relevance and Rodriguez balancing, disclosure is warranted (privilege overcome) |
| Whether Housing Connect issues chart (NYCPRIV00548) must be produced | Chart informs marketing/lease-up processes relevant to disparate impact and may refresh witness testimony | Material is deliberative, minimally relevant to Community Preference Policy, and plaintiffs already received final guidelines and deponents; redactions appropriate | Court: Privilege upheld; redactions sustained (no disclosure of deliberative columns) |
| Whether East New York / Inwood draft documents (NYCPRIV00726, 01023, 00885) must be produced | Drafts may reveal HPD deliberations on income/affordability that illuminate motives or disparate impacts | Drafts are pre-decisional and not tied to Community Preference Policy motivations; final plans and deposition testimony available | Court: Privilege upheld; documents not produced (balance against disclosure) |
| Whether ULURP decision memo re: MIH (NYCPRIV00399) must be produced | Memo could show internal policy choices affecting housing siting/processes relevant to claims | Memo concerns land-use procedure peripheral to Community Preference Policy; process information already available | Court: Privilege upheld; memo protected from disclosure |
| Whether previously sustained deliberative privileges (NYCPRIV00183, 00731) remain protected | Plaintiffs did not challenge but asked reevaluation under Swain | City contends documents irrelevant to this litigation and publicly available final decisions exist | Court: Reaffirms privilege; no disclosure required |
Key Cases Cited
- NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (privilege protects advisory opinions, recommendations, deliberations used in governmental decisionmaking)
- Hopkins v. H.U.D., 929 F.2d 81 (2d Cir. 1991) (privilege covers staff recommendations and inter/intra-agency deliberations)
- Tigue v. U.S. Dep't of Justice, 312 F.3d 70 (2d Cir. 2002) (distinguishes routine evaluations from pre-decisional deliberative materials)
- Nat'l Council of La Raza v. Dep't of Justice, 411 F.3d 350 (2d Cir. 2005) (discusses scope of deliberative process privilege and targeted vs. broad inquiries)
- Rodriguez v. Pataki, 280 F. Supp. 2d 89 (establishes five-factor balancing test for overcoming privilege)
- Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (sets factors for proving discriminatory intent)
- In re Delphi Corp., 276 F.R.D. 81 (S.D.N.Y.) (applies deliberative privilege principles to inter/intra-agency materials)