Richey v. Sullivan et al

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
ISAAC RICHEY,
Plaintiff,
1:23-CV-0344
v. 	(AJB/DJS)
ANN MARIE T. SULLIVAN, MD,
Defendant.
APPEARANCES: 	OF COUNSEL:
THE BELLANTONI LAW FIRM, PLLC 	AMY L. BELLANTONI, ESQ.
Attorney for Plaintiff
2 Overhill Road, Suite 400
Scarsdale, New York 10583
NEW YORK STATE ATTORNEY GENERAL 	BENJAMIN L. LOEFKE, ESQ.
Attorneys for Defendants 	Assistant Attorney General
The Capitol
Albany, New York 12224
DANIEL J. STEWART
United States Magistrate Judge
DECISION and ORDER
During the course of discovery in this matter, Defendants1 withheld from disclosure three
categories of documents, totaling five documents, on the basis that each was privileged and not
subject to disclosure. Dkt. No 32. Those documents were submitted to the Court for in camera
review. 	Review of those documents was put on hold while the parties litigated a motion to
dismiss the Complaint. Dkt. No. 38. That motion has now been resolved.
1 Ann Marie Sullivan is now the sole remaining Defendant in this action.
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“As with all discovery disputes, the Court first considers proportional relevance and its
six standards.”2 BASF Corp. v. Curia Glob., Inc., 2022 WL 2869044, at *2 (N.D.N.Y. July 21,
2022). 	Defendants have withheld a one page document containing two emails dated July 27,
2022. The emails are entirely logistical in nature and are not proportionally relevant to Plaintiff’s
surviving claims which the District Court characterized as “Second Amendment claims
stemming from the maintenance of his information in [a criminal background] database, which
precludes him from obtaining a firearm.” 	Dkt. No. 53 at p. 38. 	Disclosure of those emails,
therefore, is not required.
The Court reaches the same conclusion as to a second document withheld from disclosure
- a March 2022 memorandum. Dkt. No. 32 at p. 1. Defendant characterizes the document as an
“intra-agency summary prepared by staff to assist the NICS Review Panel in reaching a
determination of Plaintiff’s application for a Certificate of Relief from Disabilities.” 	Id. 	The
District Court, however, has dismissed Plaintiff’s claims against review panel members regarding
his application for a relief of disabilities. Dkt. No. 53 at p. 42; Dkt. No. 58 at pp. 8-11. Plaintiff’s
remaining claim is a Second Amendment claim concerning “the maintenance of his information
in the National Instant Criminal Background Check System database.” Dkt. No. 58 at p. 2. The
March 2022 memorandum, therefore, does not appear to be proportionally relevant to the
remaining claim and is not subject to disclosure.
Defendant next seeks to shield from disclosure two draft letters from May 2022. 	Dkt.
No. 32 at p. 2. Defense counsel represents that the final version of the letter was sent to Plaintiff
2 “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense
and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount
in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the
discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely
benefit.” FED. R. CIV. P. 26(b)(1).
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in July 2022 and has been provided in discovery. Id. Defendant claims the documents are not
subject to disclosure under the deliberative process privilege. Id.
“A federal common law privilege allows an agency to withhold documents that reflect its
decision-making processes.” 	Spiegel v. Adirondack Park Agency, 2008 WL 11505978, at *1
(N.D.N.Y. July 15, 2008). 	“The purpose of the privilege is ‘to enhance the quality of agency
decisions by protecting open and frank discussion’ among government officials.” 	Bhuiyan v.
Wright, 2007 WL 9773386, at *1 (N.D.N.Y. Dec. 26, 2007) (quoting Tigue v. United States Dep’t
of Justice, 312 F.3d 70, 76 (2d Cir. 2002)).
To qualify for this privilege, the documents must be (1) predecisional, and (2)
deliberative. A document is predecisional when it is prepared in order to assist an
agency 	decisionmaker 	in 	arriving 	at 	his 	decision. 	The 	privilege 	protects
recommendations, draft documents, and other subjective documents which reflect
the personal opinions of the writer rather than the policy of the agency. A
document is deliberative when it is actually related to the process by which
policies are formulated. Furthermore, the privilege does not generally extend to
material which is purely factual, and factual material once severed from the
privileged material in a document is discoverable
Bath Petroleum Storage, Inc. v. Sovas, 309 F. Supp. 2d 357, 362 (N.D.N.Y. 2004) (quoting
Grand Cent. P’ship, Inc. v. Cuomo, 166 F.3d 473, 482 (2d. Cir.1999)) (internal citations,
quotations, and alterations omitted).
Here, the two draft letters, which preceded the final product, demonstrate significant
editorial and substantive revisions that render the drafts predecisional. See, e.g., Doe v. Zucker,
2020 	WL 	12814135, 	at 	*5 	(N.D.N.Y. 	Nov. 	19, 	2020) 	(classifying 	draft 	document 	as
predecisional). The revisions shown in the drafts also demonstrate a deliberative process at work
“insofar as they show the authors’ editorial judgment in ‘culling the relevant documents,
extracting pertinent facts, and organizing them to suit a specific purpose.’” In re New York City
Policing During Summer 2020 Demonstrations, 656 F. Supp. 3d 486, 494 (S.D.N.Y. 2023)
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(quoting Nat’l Sec. Archive v. C.I.A., 752 F.3d 460, 465 (D.C. Cir. 2014)) (internal alterations
omitted). The Court, therefore, finds the documents protected by the privilege.
“[T]he deliberative process privilege is not absolute. Once the privilege is established,
the court must balance the interests supporting and opposing the disclosure.” Mr. & Mrs. B v.
Bd. of Educ. of Syosset Cent. Sch. Dist., 35 F. Supp. 2d 224, 228 (E.D.N.Y. 1998). 	“In
determining whether to preclude discovery of information that qualifies for the privilege, the
court must balance the public interest in nondisclosure against the need of the particular litigant
for access to the information.” In re World Trade Ctr. Disaster Site Litig., 2009 WL 4722250,
at *5 (S.D.N.Y. Dec. 9, 2009). As noted above, the draft letters ultimately were finalized in a
letter provided to Plaintiff, the drafts themselves do not represent any sort of final agency action
and their relevance, and thus the need for them, is low. 	The Court, therefore, concludes that
disclosure of these documents is precluded by application of the privilege.
ACCORDINGLY, for the reasons stated herein, it is hereby
ORDERED, that Defendant’s objection to disclosure of the five documents discussed
above is sustained and production of those documents is not required; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Decision and Order upon the
parties to this action.
Dated: 	December 8, 2025
Albany, New York
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