When New York City got to host the Republican National Convention in 2004, the police department began preparing for possible political disturbances, mindful that the City is a terrorist target and other major political events around the country (like the 1999 World Trade Organization meetings in Seattle) attracted anarchists. So the City began researching potential extremist groups and actually infiltrated political organizations to see if anyone planned to disrupt the Convention. That surveillance is the subject of an extraordinary ruling from the Court of Appeals on the discoverability of police records memorializing that undercover work.
The case is In Re City of New York (Dinler v. City of New York), decided on June 9. New York Civil Liberties Union, suing the City over arrests and other police actions relating to the 2004 Convention, did get 600 pages of "User End Reports" that describe the results of this surveillance. But NYCLU also wanted the Field Reports prepared by the undercover officers. The City said no, the district court said yes, and the Court of Appeals (Cabranes, Wesley and Livingston) authorized an emergency appeal in reversing the district court and keeping the intelligence reports under wraps pursuant to the "law enforcement privilege."
The Second Circuit finds that this case qualifies for the rare interlocutory appeal in order to settle a novel discovery issue of monumental importance. One reason for this is that the usual "attorneys' eyes only" release of this discovery does not always prevent public leaks which wind up in the newspaper. Filing under seal is also risky, as sensitive information from cases around the country in different contexts has also been inadvertently released through computer glitches at the courthouses. Indeed, Judge Cabranes sheepishly notes that in 2007, the Second Circuit itself had to publicly redact information from one of its cases about the FBI's "allegedly aggressive interrogation techniques" that led to a false 9/11 confession. (This blog broke that story).
Turning to the merits of the law enforcement privilege, the Second Circuit says NYCLU can't have the records. Borrowing from legal standards adopted by courts around the country, the Second Circuit says the documents qualify for the privilege because they contain information that would compromise confidential police sources and techniques. Against the "pretty strong presumption against lifting the privilege," the plaintiffs do not have "compelling need" for the Field Reports, particularly since the Second Circuit reviewed them in camera and concludes that they do not contradict the already-released End User Reports. The Court of Appeals further concludes that the plaintiffs' need for the Field Reports "certainly does not outweigh the public's substantial interest in nondisclosure as a means to preserve the integrity of the NYPD's undercover operations."
At the close of the ruling, the Court provides a "how to" guide for dealing with the law enforcement privilege in the future. The objecting party must show that the records contain information that the privilege is intended to protect, i.e., police techniques and procedures. If the police meet that test, the court balances the public interest in nondisclosure against the plaintiff's need for the records. But the presumption is against disclosure at this point. The district court has to review the records in camera, bearing in mind that "some documents may be so sensitive that they should not be left in a judge's chambers overnight." If the court decides to pierce the privilege, it may order their release in a specified way, such as under seal or on an "attorneys' eyes only" basis.