United States District Court, N.D. Indiana
CALVIN WILSON, DAVID BLUME, and ASIA MARSHALL, individually and on behalf of all other similarly situated persons, Plaintiffs,
ALLEN COUNTY COUNCIL, ALLEN ALLEN COUNTY BOARD OF COMMISSIONERS, and ALLEN COUNTY PUBLIC DEFENDER BOARD, Defendants.
OPINION AND ORDER
THERESA L. SPRINGMANN CHIEF JUDGE.
matter is before the Court on the Plaintiffs' Motion [ECF
No. 88] to Amend/Correct their Brief [ECF No. 85] in
Opposition to the Defendants' Motion to Dismiss [ECF No.
82] the Plaintiff's Third Amended Complaint [ECF No. 45].
Calvin Wilson, David Blume, and Asia Marshall, on behalf of
themselves and others similarly situated, have brought this
class action against Defendants, the Allen County Council,
the Allen County Board of Commissioners, and the Allen County
Public Defender Board, seeking declaratory and injunctive
relief pursuant to 42 U.S.C. § 1983. The Plaintiffs
allege that the Defendants have failed to provide effective
assistance of counsel to indigent defendants charged with
committing misdemeanor crimes in the courts of Allen County,
Indiana, in violation of the Sixth and Fourteenth Amendments
to the United States Constitution and Section 13(a) of
Article 1 of the Indiana State Constitution. On September 15,
2017, the Defendants filed a Motion to Dismiss the
Plaintiff's Third Amended Complaint [ECF No. 82] and on
September 25, 2017, the Plaintiffs filed their Response [ECF
No. 84]. On September 28, 2017, the Plaintiffs filed a Motion
to Amend/Correct their Brief in Opposition [ECF No. 88] to te
Motion to Dismiss, the Defendants responded [ECF No. 92], and
the Plaintiffs replied [ECF No. 93].
detailed in their Motion to Amend, the Plaintiffs seek to
amend their response brief in opposition to the
Defendants' Motion to Dismiss by adding one new paragraph
and two documents. (Pls' Proposed Am. Br. in Opp. to
Defs.' Mot. to Dismiss 13-14, ECF No. 88-1.) One of these
documents in a letter (the Letter) from Derrick Mason,
identified as a Senior Staff Attorney at the Indiana Public
Defender Commission (IPDC), confirming the IPDC's
approval of a request from the Allen County Public Defender
(ACPD) to hire additional staff. (Aug. 18, 2017 Ltr., ECF No.
88-1.) The Defendants oppose the Motion to Amend, and the
inclusion of the attached proposed amended response brief and
Letter in the record, arguing that the Letter is protected
and excluded under the deliberative process
deliberative process privilege protects communications that
are part of the decision-making process of a governmental
agency. NLRB v. Sears, Roebuck & Co., 421 U.S.
132, 150- 152 (1975). “Since frank discussion of legal
and policy matters is essential to the decision-making
process of a governmental agency, communications made prior
to and as a part of an agency determination are protected
from disclosure.” United States v. Farley, 11
F.3d 1385, 1389 (7th Cir. 1993) (citing id. at 151.)
The privilege “rests on the obvious realization that
officials will not communicate candidly among themselves if
each remark is a potential item of discovery and front page
news, and its object is to enhance ‘the quality of
agency decisions by protecting open and frank discussion
among those who make them within the Government.'”
Anderson v. Marion Cty. Sheriff's Dep't, 220
F.R.D. 555, 560 (S.D. Ind. 2004) (citation omitted). The
burden to show the privilege applies rests on the party
asserting the privilege “both to its existence and its
applicability.” King v. Internal Revenue
Serv., 684 F.3d 517, 519 (7th Cir. 1982); Allen v.
Chi. Transit Auth., 198 F.R.D. 495, 501 (N.D. Ill.
there are limitations to the privilege. “For the
privilege to apply at all, the document-or communication-must
be ‘pre-decisional' and
‘deliberative.'” Marion Cty.
Sheriff's Dep't, 220 F.R.D. at 560 (citation
omitted). The Seventh Circuit has held that
“pre-decisional” means that a document or
communication “is actually antecedent to the adoption
of an agency policy.” Enviro Tech Int'l v.
E.P.A., 371 F.3d 370, 375 (7th Cir. 2004) (internal
quotation marks and citation omitted). Accordingly,
communications made subsequent to an agency decision are not
protected. Farley, 11 F.3d at 1389. The Seventh
Circuit has also held that “deliberative” means
that the document or communication “is actually related
to the process by which policies are formulated.”
Enviro Tech Int'l Inc., 371 F.3d at 375.
Therefore, “the deliberative process privilege
typically does not justify the withholding of purely factual
material.” Id. at 374. Courts have held that
the privilege is narrow and “the privilege should be
invoked only in the context of communications designed to
directly contribute to the formulation of important
public policy.” Anderson, 220 F.R.D. at
560-61 (internal quotation marks and citation omitted)
(emphasis in original). Moreover, the deliberative process
privilege may be overcome where there is a sufficient showing
of a particularized need that outweighs the reasons for
confidentiality. Farley, 11 F.3d at 1389.
Court finds that that deliberative process privilege does not
extend to the Letter at issue. First, on its face, the Letter
appears to be a confirmation authorizing personnel (or
shifting personnel into different positions). It begins by
The Public Defender Commission is in receipt of your [Mr.
Hammond's] letter stating that Allen County is interested
in having six (6) deputy public defenders handling
exclusively misdemeanor caseloads and hiring an additional
three (3) paralegals/investigators . . . . Per our
conversation, the pay and compensation for the misdemeanor
deputy public defenders . . . would be the same as the other
deputy public defenders . . . .
(Aug. 18, 2017 Ltr.) The Letter goes on to state that the pay
rate for the misdemeanor deputy defenders is comparable to
the other full time attorneys. The language does not appear
to reflect any sort of deliberation, let alone deliberation
“related to process by which policies are
formulated.” Enviro Tech Int'l, 371 F.3d
at 375; see also United States v. Lake Cty. Bd. of
Comm'rs, 233 F.R.D. 523, 528 (N.D. Ind. 2005)
(“[T]he Court doubts that the deliberative process . .
. privilege ever [was] intended to prohibit inquiry into
routine personnel decisions.”). Rather, the language in
the Letter indicates that it is an authorization, or
confirmation “per [a] conversation, ” for the
ACPD's hiring of staff. (Aug. 18, 2017 Ltr.)
Defendants take issue with the last paragraph of the Letter,
in which Mr. Mason writes:
Six (6) full time and adequately staffed misdemeanor
attorneys provides Allen County with sufficient legal support
to handle up to 2400 misdemeanor cases under current
guidelines. This would appear to be enough to handle the
annual caseload as reported in 2016. In other words, I am
pleased to say that such a proposal would appear to make
misdemeanor representation in Allen County in compliance with
current Commission Standards and Guidelines. Please let me
know if you need anything further.
(Id.) The Defendants argue that this language
“constitutes an advisory opinion concerning potential
hiring decisions.” (Defs.' Resp. 5, ECF No. 92.)
However, the plain text of this language does not appear to
constitute an advisory opinion that is part of agency
deliberation.Rather, Mr. Mason's statement that the
hiring would be in compliance with IPDC guidelines is a
factual statement. And, even if the language is advisory in