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Self-critical privilege not available to public entities inNew York State objecting to the release of certain informationUniformed Fire Officers Assn., Local 854 v City of New York,2012 NY Slip Op 07899, Appellate Division, First Department
Supreme Court denied the City of New York’s motion to quasha judicial subpoena obtained by the Uniformed Fire Officers Association, Local 854, requiring the City to supplyit with copies of drafts of a public safety consultant's report recommending achange affecting the City’s 911 call system.
The Appellate Division sustained the Supreme Court’s ruling,holding that the City failed to show that the public interest would be harmedby the disclosure of drafts of the consultant's report to the Local.
The court explained that the City’s claim of protectionunder the so-called "self-critical" privilege*was misplaced as “This privilege has never been recognized under New York law.”
Further, the Appellate Division observed that the City hadnot demonstrated that there were "exceptional and compelling circumstances" thatmight justify the judicial creation of a new privilege
In the words of the court, “Absent sensitive subject matteror exposure of review participants to liability, the City's contention that thedisclosure of the drafts would have a chilling effect on the internaldiscussions of those engaged in reviewing technical projects such as this isspeculative.”
In contrast, said the court, Local 854 had shown a need forthe drafts for the purpose of preparingits case before the City’s Collective Bargaining Board.
* Theself-critical analysis privilege, if available, would protect an entity’s self-evaluativematerials from disclosure when it is shown that the public interest in preserving the internalevaluations of the organization outweighs an interested party's right to the information.
The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07899.htm
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