# United States v. Hooker Chemicals & Plastics Corp.

> District Court, W.D. New York · September 26, 1988 · 123 F.R.D. 3

URL: https://www.frixlaw.com/law-library/cases/9027258

## Case

- **Full name:** UNITED STATES of America the State of New York, and UDC-Love Canal, Inc. v. HOOKER CHEMICALS & PLASTICS CORPORATION
- **Court:** District Court, W.D. New York
- **Decided:** September 26, 1988
- **Citations:** 123 F.R.D. 3; 1988 U.S. Dist. LEXIS 10674; 1988 WL 99275
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Curtin
- **Judges:** Curtin
- **Cited by:** 9 later opinions in the Frix Law Library

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## Opinion text

CURTIN, Chief Judge.
In a ruling dated April 30, 1988, Special Master John E. Sexton held that a “mental processes” privilege is applicable in this case with respect to deposition testimony as to the unwritten, uncommunicated mental activities of certain administrative decisionmakers. The Master went on to hold, however, that in a context such as the instant one where judicial review of an administrative decision is not at issue, the privilege is defined by the parameters of the “deliberative” privilege, and thus does not protect the decisionmaker’s final, i.e., post-decisional, unwritten or uncommunicated views. Ruling of the Special Master on the Mental Processes Privilege [Ruling], Item 644, pp. 42-43. [Editor’s Note: Item 644 is attached as an appendix.] Pursuant to ¶ 6 of the Case Management and Discovery Order (Item 507), the State has filed its objections to the Ruling (Item 676), and requests that the court reject the Master’s recommendations inasmuch as they conflict with established principles of privilege law. The United States has filed a response in support of the State’s objections (Item 702). Occidental Chemical Corporation [OCC] has filed its memorandum in support of the Ruling (Item 696). Due to the importance of the issues addressed in the Ruling, oral argument was heard by the court on July 22, 1988.
In order to fully comprehend the meaning and scope of the Ruling, and to establish a relevant context for the reasoning set forth below in this order, it is important to briefly discuss the background of this complex litigation. The controversy in this case centers around activity at the area in Niagara Falls, New York, known as the Love Canal, 1 which is a 16-acre landfill site into which OCC deposited more than 21,000 tons of industrially produced chemical wastes between the years 1942 and 1953. The area surrounding the Love Canal site, residential in nature, became increasingly so during the 1960’s and 70’s, and by 1976 over 1,000 families lived within approximately 1,500 feet of the site. Meanwhile during the 1970’s, several different hazardous substances were detected in the surface water, groundwater, soil, sewers, creeks, basements of homes, and other locations in the area surrounding the site. On August 2, 1978, then New York State Commissioner of Health Dr. Robert P. Whalen declared the existence of a public health emergency at Love Canal, and his successor Dr. David Axelrod continued that emergency in an order dated February 8, 1979. On May 21, 1980, President of the United States Jimmy Carter declared a national emergency at Love Canal. Both pri- or and subsequent to these declarations, the State and the United States funded and conducted extensive remedial activities, in- *5 eluding various environmental and engineering studies, the relocation of residents from the Love Canal area, the demolition of homes bordering the Love Canal, and several other measures toclean up, contain and monitor chemical contaminants in and around the site.
This action was filed on December 20, 1979, by the United States, and the State of New York was joined as a plaintiff in September, 1980. For the purposes of deciding the issue now before the court, the most important claims involve OCC’s responsibility under federal, state and common law for the health hazards posed by the presence and migration of the chemical wastes deposited at Love Canal, and for reimbursement of the funds spent by the governments for remedial measures made necessary by the presence of those wastes. In its defense, and as a basis for its counterclaims against the governments, OCC makes three arguments that are of particular importance to the present issue. First, OCC contends that much of the remedial work undertaken by the State was unnecessary and was performed in a way that was not cost-effective. Second, OCC contends that the State mishandled the Love Canal situation by releasing erroneous information with regard to the health risks associated with exposure to the chemicals deposited at the Love Canal. Third, OCC claims that much of the remedial action taken by the governments was necessary only because of the State’s own negligence as evidenced by, for example, migration of the wastes as a result of the construction of the LaSalle Expressway over the southern end of the Canal property. According to OCC, these actions have seriously compounded the problems at Love Canal and are largely responsible for the sums of money spent to remediate those problems. See Item 184, pp. 2-3.
By decision and order dated February 23, 1988 (Item 610), this court granted the governments’ motion for partial summary judgment under section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act [CERCLA], 42 U.S.C. § 9607 , finding OCC strictly, jointly, and severally liable for remedial costs recoverable under that statute which were incurred by the governments in connection with the release and threatened release of hazardous chemicals from the Love Canal landfill, including those recoverable costs incurred prior to CERCLA’s enactment. United States v. Hooker Chemicals & Plastics Corp., 680 F.Supp. 546, 556 (W.D. N.Y.1988). Prior to that decision, the court found in its Supplemental Order # 8 (Item 452), United States v. Hooker Chemicals & Plastics Corp., 114 F.R.D. 100 (W.D.N.Y.1987), that certain documents relating to the decision-making process which resulted in the State's decision to undertake remedial measures at Love Canal are not discoverable by OCC because they are subject to the deliberative privilege, which protects documents comprising part of the judicial or quasi-judicial decision- or policy-making process. This protection, however, was found by the court not to extend to those documents, in full or in part, evidencing a.) the State’s concern for the possible political ramifications of the Love Canal situation, and b.) the State’s consideration of possible actions in light of factors unrelated to the health and safety of those living and working in the Love Canal area. 114 F.R.D. at 103 . According to OCC, costs properly connected with these latter considerations (i.e., political ramifications and factors unrelated to health and safety) should not be recoverable under CERCLA’s statutory scheme.
Essentially, the discovery dispute which necessitated the Master’s Ruling now at issue is an extension of the dispute which spawned Supplemental Order # 8. During the depositions of Drs. Whelan and Axelrod, the administrative officials responsible for the State’s decision to declare a public health emergency at Love Canal, OCC sought information, deemed crucial to its defenses and counterclaims, as to how that decision was made, i.e., whether considerations other than those related to health and safety were taken into account during the decision-making process. Attorneys for the State directed the witnesses not to an *6 swer certain questions 2 posed by OCC on the grounds that the testimony sought was privileged information. Item 644, pp. 12 -14. At the request of the parties, the Master 3 received briefs and held two days of oral argument. Id., p. 14. The State argued that a state official’s thoughts or opinions on policy matters, if communicated to others engaged in governmental deliberations, are protected by the intragovernmental deliberative privilege, and even if not communicated, are protected by the mental processes privilege. Id., pp. 14, 16. In addressing this argument, the Master traced the development of the mental processes privilege to the Supreme Court’s decision in United States v. Morgan, 313 U.S. 409 , 61 S.Ct. 999 , 85 L.Ed. 1429 (1941), 4 and found that the rules generated by Morgan and its progeny 5 regarding that privilege, in their purest form,
must be understood in the special context that spawned them. So, when we say that the Morgan privilege (or doctrine) applies to “administrative decisions,” we do not mean that it applies to every decision made by a government official; rather, we mean that it applies to the decisions made by government officials which, as a matter of Administrative Law, are subject to judicial review of one form or another.
Item 644, p. 23. As the Master noted, the instant case is not within the same “judicial review paradigm” that generated the Morgan privilege, since “no agency or governmental action is , ‘under review’ in any Administrative Law sense of that phrase.” Id., p. 27. Thus, in seeking a justification for applying the mental processes privilege in the present context, the Master focused his inquiry on whether, “in cases where judicial review of administrative action is not the issue, courts should or should not probe the mental processes of government officials depending upon whether the rationales which spawned the mental processes privilege in the judicial review paradigm (or new considerations) justify its application.” Id., p. 36 (emphasis in original). 6 Of particular importance *7 to the Master was the fact “that there are literally dozens of litigation contexts wherein courts and litigants routinely examine the mental processes of government officials” (id., p. 34), most notably in situations requiring revelation of the decision-makers’ motives for their decisions. For example, in Mt. Healthy School District Board of Education v. Doyle, 429 U.S. 274 , 97 S.Ct. 568 , 50 L.Ed.2d 471 (1977), a non-tenured teacher claimed that the Board’s decision not to rehire him was made as a result of an exercise of his First Amendment rights regarding a school dress policy. The Supreme Court held that once the plaintiff has established that his constitutionally protected conduct was a “substantial” or “motivating” factor in the Board’s decision, the burden shifts to the Board to demonstrate that it would have reached the same employment decision even in the absence of improper motive. Id. at 287 , 97 S.Ct. at 576 . While not within the same litigation context as the instant case, the Master found the reasoning employed in the Mt. Healthy case, and in several others which have subsequently applied the Mt. Healthy standards, 7 persuasive.
The Master then examined several possible justifications for applying the “pure” Morgan -type privilege outside of the judicial review paradigm, 8 and found that the strongest rationale for extending that privilege to cases such as the instant one is the existence of the deliberative privilege itself. Id., p. 41. According to the Master’s reading of the relevant cases, the mental processes privilege is “inextricably intertwined, both in purpose and objective” with the deliberative privilege. Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 326 (D.D.C.1966), aff'd per curiam, 384 F.2d 979 (D.D.Cir.), cert. denied, 389 U.S. 952 , 88 S.Ct. 334 , 19 L.Ed.2d 361 (1967). “Each rule complements the other, and in combination they operate to preserve the integrity of the deliberative process itself.” Id.
Given that the deliberative privilege has been recognized as necessary for effective government, and given that the deliberative privilege clearly applies in cases (like the one at hand) in which judicial review of administrative action is not the issue, if it is so that the mental processes privilege is a necessary complement to the deliberative privilege in such cases, then the mental processes privilege should apply in such cases. I believe that the mental processes privilege is justified on this ground.
Item 644, p. 42.
In so finding, the Master also found the scope and application of the mental processes privilege coextensive with the scope and application of the deliberative privi *8 lege. Id. That scope has already been defined by this court in Supplemental Order #8:
Generally speaking, the deliberative privilege applies to all material reflecting the actual pre-decisional, mental, or deliberative process—inter- and intra-governmental evaluations, expressions of opinion, and recommendations on policy and decision-making matters. However, it does not apply to post-decisional, or so-called “working law communications,” i.e., explanations or interpretations of an existing government decision. The deliberative privilege also does not apply to 1) purely factual material or data which may be severed from a given deliberative memorandum or report, or. 2) material which evaluates the implementation of a given government decision.
114 F.R.D. at 102 . Also excepted from the privilege, though falling within its scope, is any material which
... explicitly evidences the State’s concern for the possible political ramifications (or other factors unrelated to the health and safety of those living or working near Love Canal) and which suggests various actions in light of these political ramifications (or other factors unrelated to the health and safety of those living or working near Love Canal).
Item 644, p. 43; see also 114 F.R.D. at 103 . The Master thus embraced the policy that, while applicable (to a degree) to the instant case, the mental processes privilege protects the decisionmaker’s thought processes only to the extent necessary to promote the interchange of ideas prior to a final decision; it does not preclude inquiry as to the decisionmaker’s opinions about his or her decision after that decision has been made.
It is well settled that the deliberative privilege does not protect the product of the deliberative process—the decision. So also the mental processes privilege does not protect that product____ At the point where the deliberative process comes to an end, the protection of both privileges comes to an end____ The same concept can be put another way. At a certain point, when the decisionmaker comes to rest, the decisionmaking process comes to an end. The decisionmaker’s views at that point are his final position. It makes no difference whether those views are written or unwritten.
Item 644, p. 42. The Master further recognized the qualified nature of the mental processes privilege and the balance that must be struck in determining whether material concededly within the scope of the privilege should be disclosed in a given case. Id., p. 43.
With the above announced principles to guide him, the Master proceeded to evaluate each of the instances thus far presented in which the State has invoked the mental processes and/or deliberative privilege during the course of the depositions of Doctors Axelrod and Whalen. Item 644, pp. 43-45; see also Item 644(b) (Appendix attached to the Ruling). In some cases where the mental processes or deliberative privileges were found to apply (or appeared to apply), the State was required to submit proof identifying for the specific instance at issue the decision which was the product of the deliberative process creating the claim of privilege, the deponent’s role in that process, and the substance of the deponent’s testimony. Item 644, p. 43. After receiving and considering those submissions, the Master issued a Supplemental Ruling, dated May 25, 1988, which either confirmed or denied application for each of the instances at issue. Item 668, p. 60 [Editor’s Note: Item 668 is attached as an appendix].
It is in the context of these individual determinations as to the applicability of the privilege in specific instances that the scope and meaning of the Special Master’s Ruling comes into focus. In each instance, the Master carefully considered the State’s claim of privilege in conjunction with the principles embodied in the Federal Rules of Evidence, the Federal Rules of Civil Procedure, and the law of the case, and struck the proper balance between protection of the deliberative process and full disclosure of relevant evidence. Accordingly, in 11 of the 40 instances considered, the Master found that the mental processes/delibera *9 tive privilege foreclosed questioning by OCC as to pre-decisional thoughts, opinions, facts, or other information or material involved in the deliberative process. Where the privilege was found not to apply, the Master held that the questions posed sought the decisionmaker’s final, unwritten views or his present opinion as to pre-decisional matters, sought merely factual material, or were irrelevant. See Item 644, pp. 43-45; see also Items 644(b), p. 46, 668 p. 60.
In objection to the Ruling, the State contends that the relevant caselaw establishes a much broader protection of the mental processes of administrative decisionmakers than that found to exist by the Master. Item 676, pp. 4-9. According to the State, the mental processes privilege as delineated in the judicial review setting has been applied with the same scope outside that setting. That privilege, the State further argues, not only protects those thoughts and opinions formulated by the official pri- or to his or her decision, but also precludes post-decisional inquiry into those mental processes. Id., p. 8. The United States concurs with the State, contending that there is no legal basis for the Master’s distinction in the application of the privilege between cases involving judicial review of administrative decisions and cases that do not. Item 702, p. 3. In support of the Ruling, OCC contends that the State’s reliance on cases recognizing the privilege outside the judicial review context is unconvincing. Item 696, p. 6-7. According to OCC, the Master’s ruling is consistent not only with established precedent, but also with public policy and the law of the instant case, as embodied in this court’s supplemental order # 8 (Item 452), and should thus be affirmed. See Item 696, p. 17.
The State objects primarily to the Master’s finding that the mental processes privilege is “coextensive” in scope with the deliberative privilege. According to the State, if such a finding is allowed to stand, not only will questions as to why an administrative official made a particular decision be tolerated, but new law will be created which is at odds with well-established precedent. Furthermore, “an invasion of the internal thought processes of high-level officials of the State of New York will occur in the absence of any finding of a compelling need for such an invasion.” Item 676, p. 4. In support of its position that the mental processes privilege should apply in full force in cases where judicial review of administrative decisions is not at issue, the State relies primarily on the holdings in Carl Zeiss; Securities and Exchange Commission v. Perera Co., 47 F.R. D. 535 (S.D.N.Y.1969); and United States v. American Telephone & Telegraph Co., 524 F.Supp. 1381 (D.D.C.1981). 9 This latter case [AT & T] involved an attempt by the defendant to call as witnesses certain officials and employees of the Federal Communications Commission and the Department of Justice in order to show that it had acted reasonably in light of relevant administrative decisions and policies. After first noting that “[t]he government may not, without good reason, rely upon the testimony of FCC employees in support of its case and then, through the assertion of privilege, refuse defendants the opportunity to do the same,” 524 F.Supp. at 1385 n. 12, the District Court for the District of Columbia (in an opinion written by Judge Harold Greene) refused to permit the testimony with respect to several matters, relying on Morgan and its progeny.
In one such category are questions that tend to probe the mental processes of the individual members of the Federal Communications Commission, calling either for the reasons underlying various decisions of the Commission or for their understanding of what these decisions meant. These matters are part of the agency’s deliberative process and as such are clearly privileged. As the Supreme Court has said, disclosure of intra-agency deliberations and advice is injurious to *10 the government’s consultative function because it would tend to inhibit the frank and candid discussion that is necessary for an effective operation of government.
524 F.Supp. at 1386-87 (citations and footnotes omitted). As the Master points out in his Ruling, however, the mental processes/deliberative privilege, while undeniably a significant factor in the court’s decision in AT & T, was only one of several grounds upon which that decision was based. Relevance was another such ground. The AT & T court reasoned that, since the FCC acts officially in its quasi-judicial capacity “only ‘through the adoption of rules, orders, policy statements which reflect its views and commands’ ”, id. at 1387 (citing FCC Order of September 30, 1981, ¶ 8), the subsequent testimony of an FCC Commissioner as to what he understood a particular decision to mean was irrelevant to the question whether the defendants’ compliance with that decision was reasonable. In the instant case, OCC has challenged the State’s reasons for taking the remedial action that it did. Motive, and not compliance, is thus at issue, and this court has already ruled in Supplemental Order # 8 that evidence of motive other than that relating to public health and safety is not privileged and is therefore discoverable and relevant. Further, the primary rationale relied upon by the AT & T court to justify the application of the “pure” mental processes privilege outside the judicial review paradigm, i.e., promoting the “frank and candid discussion that is necessary for an effective operation of government,” id. at 1387 , was carefully considered and rejected by the Master as inadequate to justify unconditional protection of the administrative decisionmaker’s uncommunicated thoughts in the context of the instant litigation. See Item 644, p. 37. Finally, the Master notes that the AT & T court relied upon a further independent rationale in extending the scope of the privilege.
[Questioning the individual Commissioners as to the factual basis each had for the findings he supported would not be unlike examining the Commission’s decision to determine whether it was supported by substantial evidence. Such an inquiry is a matter for the court charged by statute with the review of final FCC action ... and is not within the jurisdiction of this Court.
Id. at 1388 . In other words, “a litigant should not be permitted to do collaterally what he could not have done directly.” Item 644, p. 32. The Master correctly points out, however, that while this point “adds a new twist to the debate,” id. p. 32, it adds no explanation as to why the mental processes of a decisionmaker should not be probed in a case where that information is relevant “simply because those mental processes could not be probed on judicial review of the decision.” Id.
The State also relies on Securities and Exchange Commission v. Perera Co., 47 F.R.D. 535 (S.D.N.Y.1969), another case outside the judicial review paradigm, in which the defendant company sought to depose a Securities and Exchange Commission official responsible for the distribution of an allegedly deceitful publication. In ruling on the government’s motion for a protective order, the court briefly discussed the prevailing rationale for the privilege claimed.
The present motion seeks to prevent the taking of this deposition on the ground that it represents an unlawful attempt to explore the mental processes of a governmental official, which information falls within the protective confines of the “executive privilege.”
In the interest of promoting the free and candid interchange of ideas as a means to achieving effective executive decisions, it is generally not in the public interest to compel the Government to disclose its prefatory thinking as evidenced by intra-agency advisory opinions ... unless it is perfectly clear to the court that the production of such documents is essential to the proper presentation of the movant’s case. The competing interests must be carefully weighed.
47 F.R.D. at 537 (citations omitted). As the Master recognizes, this “discussion of the rationale underlying the privilege highlights the necessity of promoting an ex *11 change of ideas—the rationale for the deliberative privilege”, Item 644, p. 30 (emphasis in original), and the brief reference to “mental processes” (which represents the court’s entire discussion of the issue) does nothing to “advance an inquiry into what the scope of the mental processes privilege should be.” Id.
Carl Zeiss offers the most compelling support for the State’s position here. That case involved a claim of executive privilege by the United States government, not a party to the action, as to the production of inter-departmental documents relating to the government’s sale of the capital stock, which had been seized during wartime, of an American distributor of a German company’s products. The case is thus clearly outside the judicial review paradigm. In discussing the scope of the claimed privilege, the court found that “identically potent reasons dictate that protection no less extensive be afforded” to administrative officials than that afforded to judges from “inquisition into the elements comprising [their] decision[s].” 40 F.R.D. at 326 (citing Morgan, 313 U.S. at 422 , 61 S.Ct. at 1004-1005 ). That protection encompasses both the deliberative and mental processes privileges.
Inextricably intertwined, both in purpose and objective, are these two principles. The rule immunizing intra-governmental advice safeguards free expression by eliminating the possibility of outside examination as an inhibiting factor, but expressions assisting the reaching of a decision are part of the decision-making process. Similarly, the so-called “mental process rule” impresses the stamp of secrecy more directly upon the decision than upon the advice, but it extends to all phases of the decision-making process, of which the advice is a part. Each rule complements the other, and in combination they operate to preserve the integrity of the deliberative process itself. It is evident that to demand pre-decision data is at once to probe and imperil that process.
40 F.R.D. at 326 (citations omitted). According to the State, this language properly defines the scope of the mental processes privilege as complementary to, rather than coextensive with, the deliberative privilege. Therefore, “the mental processes underlying or implicit in the decision itself are protected. Yet ... the Master, contrary to case law, found the thinking behind an official’s final decision to be discoverable.” Item 676, p. 8.
As noted in the Ruling, the reasoning in Carl Zeiss, while helpful to the State, does not sufficiently “explain why the mental processes of decisionmakers must be protected in cases where judicial review of administrative action is not the issue.” Item 644, p. 29 (emphasis in original). Carl Zeiss involved the production of documents under a claim of privilege made by a non-party, and thus the Master is correct in distinguishing that case from the instant one in which a party to the action is claiming privilege as to the “uncommunicated cerebrations” of a decisionmaker. Id. In other words, Carl Zeiss was a deliberative privilege case, and the court’s discussion of the Morgan mental processes rule does not advance the argument that the same justifications for protecting pre-decisional communications should apply to an administrative official’s pre-decisional thoughts, or to his or her post-decisional views or opinions about those thoughts, when judicial review of that official’s decision is not at issue.
As discussed above, this court's Supplemental Order # 8 defined the parameters of the deliberative privilege within, the context of the instant case, and held that the protection of that privilege does not extend to “explanations or interpretations of an existing government decision ... purely factual material or data which may be severed from a given deliberative memorandum or report, or ... material which evaluates the implementation of a given government decision.” 114 F.R.D. at 102 . Upon careful review of the Ruling now before the court, and upon thorough consideration of the relevant caselaw as well as general principles of discovery and relevancy, I find no compelling reason to disturb the Master’s determination that the scope of the mental processes privilege applicable in this case should be defined by *12 those same parameters. The Ruling makes it clear that the protection afforded by that privilege to the thoughts, views, opinions or other cerebrations of the administrative officials responsible for policy decisions with regard to the Love Canal does not extend to “post-decisional ... explanations or interpretations of” such decisions. See Item 452, p. 5. The Master’s scholarly analysis of the caselaw reveals no persuasive justification for the type of absolute protection of the decisionmaker’s predecisional mental processes urged here by the State. Furthermore, it is apparent to the court that the Master properly and correctly considered the necessary releVant factors in making his individual rulings as to each instance in which the privilege was invoked during the depositions of Drs. Axelrod and Whalen. Those factors, as set forth in Supplemental Order # 8 to be considered by the court when determining whether material that ordinarily falls within the scope of the privilege should be disclosed, include:
1) the relevance of the evidence [ ] to be protected; 2) the availability of other evidence; 3) the “seriousness” of the litigation and the issues involved; 4) the role of the government in the litigation; and 5) the possibility of future timidity by government employees who will be forced to recognize that their secrets are violable.
114 F.R.D. at 102 (citing In re Franklin National Bank Securities Litigation, 478 F.Supp. 577, 583 (E.D.N.Y.1979). In consideration of these factors as a general matter, this court has already commented, above in this decision and in Supplemental Order # 8, on the relevance of the thoughts and opinions of the State Health Commissioners to OCC’s defenses and counterclaims. With regard to the second factor, it is clear that such evidence could only be elicited from the witnesses themselves. As to factor 3, it cannot be disputed that the instant litigation is of the most serious dimensions, and that the issues presented are numerous and complex. Perhaps most importantly, the government asserting the privilege in this case is a party to the litigation. Finally, the court recognizes that affirmance of the Ruling here will have an effect, possibly a wide-ranging one, on government employees who may be forced in the future to render decisions in light of the possibility that their deliberative and mental processes might be subject to scrutiny. I do not believe, however, that that effect will be as devastating as the State would argue. Competing concerns as to the violability of the deliberative process can be adequately addressed by careful structuring of relevant questions in light of the principles set forth in the Master’s Ruling and in this order, and prior orders, of the court. Further, this final factor is outweighed on balance with the other considerations mentioned above.
Accordingly, the Master’s Ruling is hereby affirmed. The Master’s individual rulings and supplemental rulings with regard to the specific instances in which the mental processes privilege was invoked during the course of the deposition testimony of Drs. Axelrod and Whalen, designated Items # 1 through # 40, are also affirmed.
So ordered.
APPENDIX
ITEM 644
RULING OF THE SPECIAL MASTER ON THE MENTAL PROCESSES PRIVILEGE
(Filed May 2, 1988)
On January 28, 1988, I issued several rulings on disputes which had arisen during the deposition of Commissioner David Axelrod of the New York State Department of Health. 1 Chief Judge Curtin later affirmed those rulings. 2
The main concerns of my January 28 Ruling were: the relevance of epidemiological data and quantitative risk assessment in Phase I of the ongoing discovery process, and the utility of the supplemental *13 discovery mechanism I developed to minimize the disputes over the boundary between Phase I and Phase II. 3
A minor concern of my January 28 Ruling was the application of the “deliberative privilege” 4 to a single question asked of Doctor Axelrod. 5 Specifically, Doctor Axelrod was asked whether, in his view, an idea he offered for discussion in 1978—to wit, setting the acceptable risk level at zero—was a realistic proposal. 6 The State directed him not to answer on the ground that the question probed the mental processes of a participant in the decisionmaking process and that those processes are protected by the deliberative privilege. OCC moved to compel an answer. 7 In ruling that Doctor Axelrod should answer, I wrote:
The Governments’ argument and the authorities they cite establish the sanctity of the governmental deliberative process. The privilege is designed to foster communication and contemplation. But, as with the attorney-client privilege, it is important to distinguish between a fact and the communication or contemplation of a fact. Just as the client may not be compelled to answer the question “What did you say or write to your attorney?,” so also a government official cannot be compelled to answer the question “What did you say in that meeting and what did you write in your diary?” But, just as the client may not refuse to disclose a relevant fact within his knowledge merely because he stated the fact in a meeting with his lawyer, so also a government official may not refuse to disclose a relevant fact within his knowledge merely because he stated or recorded the fact in some deliberative context. Deliberative processes, not facts within the independent knowledge of the deliberator, are protected by the privilege. The privilege protects disclosure of communications, not disclosure of the underlying facts.
Subject to constraints which are independent of the deliberative privilege and. which are not at issue here, the opinions of a witness can be discoverable facts. Subject to these constraints, a witness may be asked his present opinion, or his opinion at a given time. This is so even if he or she might have expressed the opinion in a meeting or written it in a notebook. The deliberative privilege only permits a witness to refuse to say whether the opinion was expressed at a meeting or written in a notebook.
So, for example, by invoking the deliberative privilege, George Bush can refuse to say whether or not he opposed the arms for hostages swap at a given White House meeting, and he can refuse to say what he wrote on the subject in his diary, and he can refuse to produce the minutes of the meeting or the diary; but he may not avoid giving his opinion of the swap—his opinion today, and his opinion at a given time in the past. 8
This discovery dispute, which was a small storm on the horizon on January 28, soon became a tornado in the back yard. In a letter to me on February 8, the State characterized the issue at stake as “by far the most important question on deliberative privilege to arise since Judge Curtin’s ruling a year ago” and “one which will reappear repeatedly during depositions and at trial both in Phase I and Phase II.” 9 And, in that same letter, the State predicted that the issue would “arise again during the deposition of former Commissioner Robert Whalen.” 10 Not surprisingly, the State’s *14 prediction proved correct. On nearly four dozen occasions during Doctor Whalen’s deposition, the State’s attorneys directed him not to answer a question on the ground that the material sought was protected by the mental processes privilege. 11 At the request of the parties, therefore, I received briefs and held two days of oral argument.
The essence of the State’s argument is that a State official’s opinions on policy matters are protected on two independent bases. If communicated to others engaged in governmental deliberations, they are protected by the intra-govemmental deliberative privilege; but even if communicated to no one, they are protected by the mental processes privilege. Moreover, in the State’s view, the mental processes privilege protects uncommunicated opinions whether they are current or past opinions (whether they have been framed after a decision or contemporaneous to it), because in the State’s view the revelation of present opinions tends to reveal opinions held at the time of the decision.
The State’s argument, valid or not, relies on a privilege which is analytically distinct from the deliberative privilege protecting intra-govemmental communications. Therefore, the State correctly argues that nothing in my January 28 Ruling, which addressed only the scope of the deliberative privilege, precludes it from advancing the mental processes privilege as justification for directing its witnesses not to answer the questions at issue here. For this reason, in today’s Ruling I address the meaning and scope of the mental processes privilege.
It is beyond cavil that, in litigation like this, it is important to define the parameters of privileges carefully. Moreover, the questions involving this privilege tend to arise during depositions involving many lawyers and important State officials—in other words, questions involving this privilege tend to arise when time spent arguing about the privilege is especially costly. Therefore, I have proceeded on the assumption that extra time spent now defining the meaning and scope of the mental processes privilege may save substantial time and cost at later stages.
I have examined carefully not only the cases cited by the parties but also the cases cited in those cases, the cases cited in the treatises and journals, and other cases I have found myself. In this Ruling, I will be as precise as possible in defining abstractly the scope of the mental processes privilege as I see it, and I will present my discussion of the cases in a way that, in the event of appeal, will save the court the trouble of retracing every step that I have taken. I also will outline procedures which will allow discovery to proceed expeditiously in those instances where the State or others invoke the mental processes privilege.
I. The Background Issue: The Deliberative Privilege
The Federal Rules of Civil Procedure embody a commitment to openness and broad disclosure. The presumption is that any material calculated to lead to admissible evidence is discoverable. Thus, though Rule 26(b)(1) limits discovery to matters “not privileged,” it is well established that testimonial privileges are to be construed as narrowly as possible, 12 and that the party invoking a privilege bears the burden of demonstrating its applicability. 13
*15 The deliberative privilege is a subcategory of the governmental privilege. 14 It “protects from disclosure those agency documents which reflect ‘advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.’ ” 15 In so doing, its purpose is to create an atmosphere in which governmental officials can hold frank and open discussions in reaching decisions without fearing public disclosure of the decisionmaking process. As the Supreme Court explained in National Labor Relations Board v. Sears, Roebuck & Company:
Manifestly, the ultimate purpose of this long-recognized privilege is to prevent injury to the quality of agency decisions. The quality of a particular agency decision will clearly be affected by the communications received by the decision-maker on the subject of the decision pri- or to the time the decision is made. 16
The rationale for the deliberative privilege also dictates its limits. It applies only to communications that are part of a decisionmaking process. Thus, it does not apply to the “opinions” or “conclusions” of those not part of that process. 17 It does not apply to underlying factual documents that are relied on in the decisionmaking process, or to statements that summarize facts. 18 Furthermore, the privilege does not apply to documents that describe an agency’s policy after it has been adopted, or to pre-decisional documents that are incorporated into the agency’s final decision. 19
*16 Chief Judge Curtin has provided the definitive exposition of the deliberative privilege as it operates in this case. 20
Generally speaking, the deliberative privilege applies to all material reflecting the actual pre-decisional, mental, or deliberative process—inter- and intra-governmental evaluations, expressions of opinion, and recommendations on policy and decision-making matters. However, it does not apply to post-decisional, or so-called “working law communications,” i.e., explanations or interpretations of an existing government decision. The deliberative privilege also does not apply to 1) purely factual material or data which may be severed from a given deliberative memorandum or report, or 2) material which evaluates the implementation of a given government decision. 21
Chief Judge Curtin also made clear that the deliberative privilege is not an absolute privilege—and that even material concededly within its scope sometimes must be disclosed. 22 Whether particular material within its scope must be disclosed is determined by a balancing test which turns upon the nature of the allegedly protected material and the context of the specific litigation. In this case, he ruled, most material falling within the scope of the deliberative privilege should not be disclosed. 23 He noted one important exception, however. OCC has the right to obtain any material which, though falling within the scope of the privilege, explicitly evidences the State’s concern for the possible political ramifications of the Love Canal situation (or other factors unrelated to the health and safety of those living or working near Love Canal) and which suggests various actions in light of these political ramifications (or other factors unrelated to the health and safety of those living or working near Love Canal). 24
II. The Mental Processes Privilege
The privilege now invoked by the State protects the “thoughts,” the “cerebrations,” or the “mental processes” of an official even if he or she never communicates them to anyone. Such a privilege offers protection different from the deliberative privilege—which, as I have noted, is designed to protect the full and frank exchange of ideas. 25 Analytically, the deliberative privilege (for which communication is a sine qua non) is quite distinct *17 from the mental processes privilege (for which communication is totally irrelevant). Thus, the Larkin treatise on privileges which the State cites in its brief distinguishes between “the privilege protecting certain interagency and intraagency communications” and “the relatively new privilege that protects mental processes of government officials.” 26
The Larkin treatise also provides the most complete description of the “relatively new” privilege the State now claims:
The mental processes privilege protects certain testimony of a governmental official who acts in a judicial, quasi-judicial, or administrative decision-making capacity and has arrived at decisions within the scope of his or her power. The protection covers testimony as to the mental processes by which the official arrived at such decisions, the manner and extent of his/her study of the subject, and his/her consultations with subordinates. Thus, included within and protected by the privilege is testimony concerning the mental activities of the official, the methods by which a decision was reached, the matters considered, the contributing influences, and the role played in the decision by the work or expressions of others. Similarly, a resume of the process of sifting and analyzing the evidence, if used by the official and therefore a part of the internal decisional process, is protected. The justification for this protection is the fear that to permit examination of such matters would be destructive of executive responsibility and the decisional process. Just as a judge may not be subjected to such scrutiny, so the integrity of the administrative decisional process must be equally respected. 27
*18 There is language in some cases to support the existence of the mental processes privilege described by Professor Larkin. The question is whether, as the State contends, that privilege properly applies in the circumstances of this case—and, if so, to what extent. The answer to that question is not easy to find. The case law is confusing—and confused. There undeniably is some dicta apparently recognizing a mental processes privilege in situations close to the one at hand. But such dicta often support the existence of a privilege by reference to premises developed in situations fundamentally different from the one at hand without examining whether, given the change of context, the premises remain intact. For this reason, I will examine the argument for a mental processes privilege in a series of steps.
A) MORGAN and Its Direct Progeny
The State correctly asserts that the roots of the mental processes privilege can be traced to the Supreme Court’s decision in United States v. Morgan. 28 At various *19 stages, the Morgan case reached the Supreme Court four times. 29 It is Morgan *20 IV, however, which generates the mental processes privilege. 30
The controversy in the Morgan quartet was triggered when a group of market agencies challenged rate orders issued by the Secretary of Agriculture. Morgan IV is the final act of the drama. Over the Government’s objection, the trial court had permitted the Secretary to be deposed and, at trial, to be examined at length about the process by which he made his decision, including the way in which he studied the record and consulted with his subordinates. The Supreme Court reversed, holding that the Secretary should not have been questioned because his deliberations, at least in the controversy before the Morgan Court, were functionally those of a judge. As Justice Frankfurter put it for the Court:
Much was made of [the Secretary’s] disregard of a memorandum from one of his officials who, on reading the proposed order, urged considerations favorable to the market agencies. But the short of the business is that the Secretary should never have been subjected to this examination. The proceeding before the Secretary “has a quality resembling that of a judicial proceeding.” Morgan v. United States, 298 U.S. 468, 480 , [ 56 S.Ct. 906, 911 , 80 L.Ed. 1288 ] (1936). Such an examination of a judge would be destructive of judicial responsibility. We have explicitly held in this very litigation that “it was not the function of the court to probe the mental processes of the Secretary.” Morgan v. United States, 304 U.S. 1, 18 , [ 58 S.Ct. 773, 776 , 82 L.Ed. 1129 ] (1938). Just as a judge cannot be subjected to such a scrutiny, so the integrity of the administrative process must be equally respected. It will bear repeating that although the administrative process has had a different development and pursues somewhat different ways from those of courts, [the administrative process and the courts] are to be deemed collaborative instrumentalities of justice and the appropriate independence of each should be respected by the other. United States v. Morgan, 307 U.S. 183, 191 , [ 59 S.Ct. 795, 799-800 , 83 L.Ed. 1211 ] (1939). 31
What emerges from the Morgan quartet viewed through the lens of Morgan IV is the important principle that the administrators legally responsible for making administrative law must make it themselves, and that their method of doing so is in some respect beyond judicial scrutiny. Thus, courts have relied on the Morgan cases in upholding the use of hearing examiners to develop evidence and form preliminary decisions, 32 in approving the reliance on staff assistants for recommendations and draft opinions, 33 and in authorizing a variety of other procedures designed to apprise administrative decisionmakers of critical issues and evidence. 34 Concomitantly, courts have refused to issue subpoenas for the *21 staff memos, expert reports, and preliminary drafts produced for these purposes; and they have refused to order the oral testimony of the decisionmaker regarding the basis of his or her decision. 35
Even in its pure form, the mental processes privilege generated by Morgan is not absolute. There is the hornbook rule that, where a party makes a prima facie showing that a decision of an agency or of a judicial officer is tainted by impropriety, the decisionmaking process may be an appropriate subject of inquiry. 36 And, more to the point, the Supreme Court has indi *22 cated that decisionmakers may be examined about their deliberations when such examination is necessary for effective judicial review. Thus, in Citizens to Preserve Overton Park v. Volpe, 37 the Court held that the Transportation Secretary could be compelled to explain an administrative decision in the absence of administrative findings that would disclose the manner in which he construed the evidence before him to reach the decision. As the Court put it:
[S]ince the bare record may not disclose the factors that were considered or the Secretary’s construction of the evidence it may be necessary for the District Court to require some explanation in order to determine if the Secretary acted within the scope of his authority and if the Secretary’s action was justifiable under the applicable standard.
The court may require the administrative officials who participated in the decision to give testimony explaining their action. Of course, such inquiry into the mental processes of administrative decisionmakers is usually to be avoided. United States v. Morgan, 313 U.S. 409, 422 , [ 61 S.Ct. 999, 1004-05 , 85 L.Ed. 1429 ] (1941). And where there are administrative findings that were made at the same time as the decision, as was the case in Morgan, there must be a strong showing of bad faith or improper behavior before such inquiry may be made. But here there are no such formal findings and it may be that the only way there can be effective judicial review is by examining the decisionmakers themselves. 38
*23 In short, the Morgan mental processes privilege in its pure form is not so much an evidentiary privilege as a doctrine defining the proper scope of judicial review. Seen in context, the Morgan privilege (or doctrine) is tied in important ways to the delegation of authority inherent in the creation of administrative agencies. Our courts supervise the utilization of this delegated authority by agencies, thereby ensuring that the agencies use their authority reasonably and within the parameters of the delegation. The Morgan quartet holds principally that the courts ordinarily can play their umpiral role without probing the private mental processes of the administrative decisionmaker, and holds concomitantly that the courts ordinarily can confine their review to whether the administrative decisionmaker followed proper rules and procedures and whether the administrative decision is reasonable in light of the record produced.
The rules generated by Morgan and its direct progeny must be understood in the special context that spawned them. So, when we say that the Morgan privilege (or doctrine) applies to “administrative decisions,” we do not mean that it applies to every decision made by a government official; rather, we mean that it applies to the decisions made by government officials which, as a matter of Administrative Law, are subject to judicial review of one form or another. The Morgan quartet (and, in particular, Morgan IV) defines the scope of judicial review in that class of cases.
Viewed this way, the rationales of the pure Morgan privilege (or doctrine) become accessible. The Morgan Court itself emphasized that the administrative process and collateral courts are “collaborative instrumentalities of justice” 39 and that, in Morgan itself, the proceeding before the Secretary had “a quality resembling that of a judicial proceeding.” 40 From these observations the Court concluded that, just as a reviewing court ordinarily does not probe the mental processes of a judge or a jury, so also a reviewing court usually should not probe the mental processes of an administrative decisionmaker. With the exception of a single allusion to the “integrity of the administrative process,” 41 the Morgan Court did not say why this analogy has force. Of course, Morgan IV was decided at a time when formal labels often were dispositive. But, we must seek more explanation.
The pure Morgan privilege (or doctrine) cannot be based upon a belief that investigating the administrative decisionmaker’s mental processes would lower the quality of the administrative decisions produced. Indeed, an argument could be made that, *24 as a matter of judicial review, courts might better police administrative decisionmakers (and, thereby, help generate better administrative decisions) by inquiring into the mental processes involved.
The pure Morgan privilege (or doctrine) can be justified on two grounds. First, in those cases where an administrative decisionmaker does act like a judge or jury (that is, where he or she acts, in a presumably neutral way, to decide a controversy or to promulgate a rule), it is not “in role” for that official to become a witness in the reviewing court. 42 To become a witness is to move from the model of the neutral decisionmaker. Second, and more important, it would be highly inefficient for reviewing courts to retrace the mental processes of administrative decisionmakers— so inefficient that it might undermine a purpose for which the agency was established. In Administrative Law, agency decisions enjoy a presumption of regularity precisely because we do not want reviewing courts acting as fora de novo. 43 Conceivably, it was these two considerations which Justice Frankfurter had in mind when he asserted that the Morgan privilege (or doctrine) would preserve the “integrity of the administrative process.” 44
In its brief and at oral argument, OCC contended that the Morgan mental processes privilege is limited to cases where decisionmakers acting “in a quasi-judicial capacity” are “making decisions based on an administrative record.” 45 As I have indicated, a more accurate statement is that the Morgan mental processes privilege, at least in its pure form, is an Administrative Law doctrine defining the scope of judicial review. This explains *25 many of the cases cited by the State. 46 It is inaccurate to say, however, that the *27 courts have confined the Morgan mental processes privilege to this judicial review paradigm—for some courts have applied the Morgan privilege where judicial review of administrative action was not the issue.
B) Application of the MORGAN Privilege Where Judicial Review of Administrative Action Is Not the Issue
The case at hand is not within the judicial review paradigm that spawned the pure Morgan privilege (or doctrine). This case begins as an attempt by the Governments to recover money from OCC on the basis of several federal statutory and state law claims. 47 It continues with various defenses, counterclaims, and cross-claims. On every issue, the existence or non-existence of liability is to be determined de novo by the court—independent of any administrative findings, determinations, or rulings that may have been made about Love Canal. Various formal administrative decisions— and other less formal ones—are woven through the factual history of the case. But such decisions, whether formal or informal, have no per se legal force or effect on the claims involved here. And, no agency or governmental action is “under review” in any Administrative Law sense of that phrase.
Since this case does not fit the judicial review paradigm, the State has attempted to demonstrate that the Morgan privilege (or doctrine) is applicable where judicial review of administrative action is not the issue. In its brief and at oral argument, it has advanced several cases which it says *28 demonstrate that proposition. Chief among these cases is Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena. 48
In Carl Zeiss, the government asserted the deliberative and mental processes privileges to resist a subpoena commanding the production of Justice Department documents for discovery incidental to a civil case in which the Government was not a party. Judge Robinson began by discussing the “well established” privilege that “obtains with respect to intra-govemmental documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” 49 He went on:
This privilege, as do all evidentiary privileges, effects an adjustment between important but competing interests. There is, on the one hand, the public concern in revelations facilitating the just resolution of legal disputes, and, on the other, occasional but compelling public needs for confidentiality. In striking the balance in favor of nondisclosure of intra-govemmental advisory and deliberative communications, the privilege sub-serves a preponderating policy of frank expression and discussion among those upon whom rests the responsibility for making the determinations that enable government to operate, and thus achieves an objective akin to those attained by other privileges more ancient and commonplace in character. 50
But Judge Robinson went on to draw a connection between the deliberative privilege, classically defined, and the mental processes privilege (which he, like the State here, grounded in Morgan):
As important as are these considerations, the cases, analyzed critically, demonstrate that the immunity of intra-govemmental opinions and deliberations also rests upon another policy of equal vitality and scope. The judiciary, the courts declare, is not authorized “to probe the mental processes” of an executive or administrative officer. This salutary rule forecloses investigation into the methods by which a decision is reached, the matters considered, the contributing influences, or the role played by the work of others —results demanded by exigencies of the most imperative character. No judge could tolerate an inquisition into the elements comprising his decision—indeed, “[s]uch an examination of a judge would be destructive of judicial responsibility”—and by the same token “the integrity of the administrative process must be equally respected.” Identically potent reasons dictate that protection no less extensive be afforded the processes by which the Attorney General’s responsibilities for decisional and policy formulations, legal or otherwise, are discharged. 51
Finally, he concluded:
Inextricably intertwined, both in purpose and objective, are these two principles. The rule immunizing intra-govemmental advice safeguards free expression by eliminating the possibility of outside examination as an inhibiting factor, but expressions assisting the reaching of a decision are part of the decisionmaking process. Similarly, the so-called “mental process rule” impresses the stamp of secrecy more directly upon the decision than upon the advice, but it extends to all phases of the decisionmaking process, of which the advice is a part. Each rule complements the other, and in combination they operate to preserve the integrity of the deliberative process itself. It is evident that to demand pre-decision data is at once to probe and imperil that process. 52
On the “mental processes” privilege, Judge Robinson expressly made the point *29 that it is applicable in circumstances other than those involved in Morgan:
Although more usually applied in cases where an effort is made to challenge the determination itself, the proscription obtains with equal force where the decision is to be used only as a link in an evidentiary chain. “[T]he cerebrations and mental processes of government officials, leading to admittedly proper exercises of power, can never be a factor in a judicial proceeding and, therefore, need not be disclosed.” 53
The State is correct in asserting that the Carl Zeiss case advances its position. As noted, Judge Robinson apparently is willing to apply the mental processes privilege outside the judicial review paradigm. Nonetheless, the Carl Zeiss case does not establish the validity of the position taken by the State here.
Though Judge Robinson describes the deliberative privilege and the mental processes privilege as “inextricably intertwined” and as “complements” of each other, he does not explain why the mental processes of decisionmakers must be protected in cases where judicial review of administrative action is not the issue. He says that the mental processes rule “impresses the stamp of secrecy more directly upon the decision than upon the advice,” 54 but he does not explain why the protection of the mental processes of decisionmakers enhances the quality of the decisionmaking process when the advice (a communication in service of a decision) already is protected by the deliberative privilege. And, he neither offers any reason why the rationales that justify the mental processes privilege (or doctrine) in the judicial review paradigm have force outside that paradigm nor offers any independent reasons why protecting the uncommunicated cerebrations of a decisionmaker will enhance the quality of the deliberative process.
In sum, though the State correctly cites Carl Zeiss in support of its position, the case does not establish the proposition that the mental processes privilege should apply in cases where judicial review of administrative action is not the issue. The deliberative privilege (applicable to communicated views) was sufficient to decide Carl Zeiss, and Judge Robinson offers no explanation why an independent mental processes privilege should be sufficient to decide the case before him (or cases like it not covered by the deliberative privilege). That Judge Robinson apparently believes that an independent mental processes privilege should be sufficient in such cases is helpful to the State’s position; but the reasoning of the Carl Zeiss opinion does not help explain why the rule should be what the State wants it to be. 55
At oral argument, the State also cited Securities and Exchange Commission v. Perera Company, 56 in support of its position. In that case, the Commission sought to enjoin activity of the defendant company which allegedly violated the Securities Act. The company argued that its activity was exempt from the relevant section of the Act and, alternatively, that it should not be held accountable for any violation that may have occurred because the SEC had knowingly distributed a deceitful publication in an attempt to entrap corporations into violating the Act. To help establish the latter contention, the company noticed the deposition of the official responsible for the allegedly deceitful release. In the course of considering the Government’s motion for a *30 protective order based upon a claim of “executive privilege,” Judge Tenney wrote:
The present motion seeks to prevent the taking of this deposition on the ground that it represents an unlawful attempt to explore the mental processes of a governmental official, which information falls within the protective confines of the “executive privilege.”
In the interest of promoting the free and candid interchange of ideas as a means to achieving effective executive decisions, it is generally not in the public interest to disclose its prefatory thinking as evidenced by intra-agency advisory opinions unless it is perfectly clear to the court that the production of such documents is essential to the proper presentation of the movant’s case. 57
Judge Tenney then granted the protective order on the ground that, because the defendant company had not relied on the government release, it had not shown a need to depose the government official.
Perera clearly holds that the “executive privilege” may be invoked to prevent the deposition of a government official in an action which does not come within the judicial review paradigm. To that extent, it too advances the State’s position. However, the meaning of the term “executive privilege” is unclear. The quoted passage (which represents the entirety of Judge Tenney’s discussion of the issue) makes a reference to “mental processes;” but the discussion of the rationale underlying the privilege highlights the necessity of promoting an exchange of ideas—the rationale for the deliberative privilege. And, the one case cited by Judge Tenney is a deliberative privilege case. 58 In short, though the holding of the case is helpful to the State, Perera too does not advance an inquiry into what the scope of the mental processes privilege should be.
A significant case which neither the State nor Occidental cited in their briefs or at oral argument is United States v. American Telephone and Telegraph, the AT & T antitrust litigation. 59 In that case, AT & *31 T sought testimony from officials and employees of the Federal Communications Commission and of the Department of Justice. Citing Morgan, Judge Harold Greene refused to permit the testimony on several matters:
In one such category are questions that tend to probe the mental processes of the individual members of the Federal Communications Commission, calling either for the reasons underlying various decisions of the Commission or for their understanding of what these decisions meant. These matters are part of the agency’s deliberative process and as such are clearly privileged. As the Supreme Court has said, disclosure of intra-agency deliberations and advice is injurious to the government’s consultative function because it would tend to inhibit the frank and candid discussion that is necessary for the effective operation of government. 60
He continued:
It may be noted in this connection that the public interest in preventing the disclosure of predecisional deliberations is greater at higher levels of decisionmaking. For example, presidential communications are presumptively privileged, while no such presumption applies to deliberations by lower level employees. It is more important that Commissioners feel free to exchange ideas during their deliberations without fear of disclosure than it is for lower echelon staff members to have that latitude, and a stronger showing of need for the information by defendants will therefore be necessary to compel testimony by the Commissioners. 61
Judge Greene noted that, to the extent AT & T wished to use the testimony to show that it had acted reasonably in light of FCC decisions and policies, it could not do so. The reasonableness of AT & T’s actions in response to the Commission’s decisions “must be tested against the expressed views of the Commission (and perhaps the further illumination of these views by subsequent FCC or judicial decisions) not through the testimony of Commissioners.” 62
Moreover, Judge Greene refused to permit AT & T to question FCC witnesses broadly about the facts found by the Commission in its various opinions, in part, because “it would be difficult (if not impossible) to question [the witnesses] without at the same time opening up the deliberative *32 process of the Commission as a whole to judicial scrutiny,” and, in part, because AT & T had already introduced so much evidence that it “will not be prejudicial if the FCC Commissioners are not permitted to testify.” 63
Judge Greene expressly based his holding in AT & T on several grounds—the mental processes and deliberative privileges, irrelevancy, and that AT & T did not need the evidence it sought. There is no denying, however, that the mental processes privilege was a substantial factor in his decision. At the very least, AT & T provides the same support for the State’s argument that Carl Zeiss and Perera provide—to wit, it applies the mental processes privilege outside the judicial review paradigm.
In fact, AT & T is a bit more helpful to the State’s argument than are Carl Zeiss and Perera. To be sure, the AT & T opinion (like the Carl Zeiss and Perera opinions) justifies application of the mental processes privilege by reference to the rationale underlying the deliberative process (for example, Judge Greene says that disclosure would be “injurious to the government’s consultative function because it would inhibit the frank and candid discussion that is necessary for the effective operation of government”) without explaining why such a rationale justifies protection of uncommunicated thoughts. But, the AT & T opinion (unlike the Carl Zeiss and Perera opinions) offers an independent rationale for applying the mental processes privilege in cases where judicial review of administrative action is not the issue: “Questioning the individual Commissioners as to the factual basis each had for the findings he supported would not be unlike examining the Commission’s decision to determine whether it was supported by substantial evidence. Such an inquiry is a matter for the court charged by statute with the review of final FCC action ... and it is not within the jurisdiction of this Court.” 64 Put another way, Judge Greene’s point is that a litigant should not be permitted to do collaterally what he could not have done directly. And, since the FCC Commissioners could not have been questioned about their mental processes in a proceeding reviewing their decision, the FCC Commissioners should not be questioned about their decision in a lawsuit outside that context.
Taken in its pristine form, this feature of the AT & T opinion is, as I have indicated, helpful to the State’s position; but, helpful as it is to the State, it does not resolve the issue at hand. The point made adds a new twist to the debate, but, without elaboration, it remains a bare assertion that the mental processes rule should apply outside the judicial review paradigm. Judge Greene does not say why a litigant should not be able to probe the mental processes of decisionmakers in a lawsuit where they are relevant simply because those mental processes could not be probed on judicial review of the decision. There is a link missing in the argument: There is no demonstration that the reasons which militate against probing the mental processes of decisionmakers in the latter context are present in the former one. 65
*33 Not every case relied upon by the State or discovered by me supports application of the mental processes privilege outside the judicial review paradigm represented by Morgan itself. 66 For example, one case which the State cites in support of its Contention that such application of the mental processes privilege is necessary to ensure *34 effective government is Judge Weinstein’s opinion in United States v. Schipani. 67 In fact, Schipani illustrates that often it is not only appropriate but also necessary to probe the mental processes of government officials.
Joseph Schipani was prosecuted and convicted for tax evasion. At the suggestion of the Solicitor General, however, the Supreme Court vacated the conviction because tainted evidence probably had been used to obtain the conviction. The case was remanded to the district court for a new trial, should the Government seek to prosecute anew. When the Government instituted Schipani II, the defendant moved to dismiss on the ground that the entire case was fatally blemished in that a saturation investigation had been ordered on the basis of the illegally acquired evidence. Judge Weinstein ruled that the entire prosecution might have to be vitiated if the decision to focus the investigation was based on the tainted evidence, and that the burden was on the Government to prove that its decision to focus the investigation was not based substantially on tainted evidence. 68 Having made that decision in the abstract, he addressed the nature of the burden of proof borne by the Government as it tried to show that in the concrete the intensity of its investigation was not substantially affected by tainted evidence. 69 He concluded that the Government did not have to advance proof beyond reasonable doubt on this point—that it need advance only proof by a preponderance of the evidence.
As he weighed the appropriate burden of proof, Judge Weinstein wrote that “courts should avoid wherever possible making detailed inquiries into the reasons for executive decisions and examining communications among high officials which are the basis of their exercise of judgment.” 70 This is the passage quoted by the State in support of its contention that the mental processes privilege is necessary to ensure effective government. However, nowhere in Schipani—not even in the quoted passage—does Judge Weinstein imply that litigants should not be allowed to probe the mental processes of officials. Indeed, much of the Schipani opinion is devoted to an analysis of the decisionmaking process which led to the saturation investigation of Schipani—albeit an analysis on a preponderance standard. 71 Stripped to its essence, the Schipani case is a striking instance where the basis for the decisionmaker’s action and the factors that led to particular action are the heart of the case. 72
In this regard, Schipani is not an isolated case. 73 It is striking that there are *35 literally dozens of litigation contexts wherein courts and litigants routinely examine the mental processes of government officials. For example, in determining the constitutionality of statutes and acts of public officials, the Supreme Court in recent years increasingly has directed the inquiry to the subjective purposes of governmental decisionmakers. The Court has deemed inquiry into legislative and administrative purposes to be relevant or essential in cases arising under the due process, 74 bill of attainder, 75 free exercise, 76 and establishment 77 clauses, as well as more recently under the equal protection, 78 freedom of speech, 79 and commerce 80 clauses and perhaps the fifteenth amendment. 81 The Court has also considered evidence of legislative purpose relevant in a commerce clause challenge to a state highway regulation. 82 The Court has held that in. some instances a finding of illicit purpose itself is sufficient to invalidate the challenged statute or administrative action. 83
Indeed, the testimony of government decisionmakers often is essential to plaintiffs’ meeting their burden of proof where a required element of that burden is proof of *36 the motivation of the defendant. And, in fact, courts have repeatedly required testimony by decisionmakers as to the motives for their decisions in just such cases. The line of cases applying the principles set forth by the Supreme Court in Mt. Healthy City School District Board of Education v. Doyle, 84 is illustrative. In Mt. Healthy, a case involving the termination of an untenured teacher, allegedly for exercising his First Amendment rights, the Court established the respective burdens of proof of the parties. The Court ruled that the plaintiff has the initial burden of establishing that his constitutionally protected conduct was a “substantial factor” in the Board’s decision not to rehire him. Once this burden was met, the Board had the burden of establishing that “it would have reached the same decision as to respondent’s re-employment even in the absence of the protected conduct.” 85
These types of cases do not appear in the literature on the mental processes privilege for two reasons. First, they obviously do not fit within the judicial review paradigm; and, second, extension of the Morgan privilege to shield the mental processes at issue in them is so palpably inappropriate that the government does not raise the privilege. Nonetheless, that courts routinely probe the mental processes of decisionmakers is significant, whatever the nature of the cases wherein the probing is done. It demythologizes the mental processes privilege, focusing the inquiry precisely.
Properly focused, the inquiry can be stated simply. Where an action involves judicial review of administrative action, Morgan teaches that courts ordinarily should not probe the mental processes of government officials; however, in cases where judicial review of administrative action is not the issue, courts should or should not probe the mental processes of government officials depending upon whether the rationales which spawned the mental processes privilege in the judicial review paradigm (or new considerations) justify its application.
No case discussed thus far has addressed this focused inquiry. The limited number of cases recognizing the mental processes privilege outside the judicial review paradigm have done so without discussing explicitly whether the principles which support the mental processes privilege in that paradigm have force outside that paradigm —and without discussing whether new principles support application of a mental processes privilege. The opinions in those cases tend to conflate the deliberative privilege and the mental processes privilege, making them coextensive, without establishing that the rationales underlying the two privileges are coextensive.
Moreover, the cases extending the mental processes privilege outside the judicial review paradigm do not exist in a vacuum. Clearly, courts routinely examine the mental processes of government decisionmakers in many types of cases outside the Administrative Law context—and the *37 government does not raise a claim of privilege to block the examination. Thus, it is evident that the law does not protect the mental processes of all governmental decisionmakers. And, it is equally evident that, if the mental processes privilege protects the mental processes of any governmental decisionmakers outside the judicial review paradigm, the justification for such protection is not articulated clearly in any case discussed above.
C) Possible Justifications for Applying the MORGAN Privilege Where Judicial Review of Administrative Action Is Not the Issue
Given the commitment of our procedural system to openness and broad disclosure, it is well established that testimonial privileges are to be construed as narrowly as possible, 86 and that the party invoking the privilege bears the burden of demonstrating its applicability. 87 Therefore, unless there is a clear justification for applying the mental processes privilege in cases outside the judicial review paradigm, the privilege should not be applied.
The most frequently mentioned justification for the deliberative privilege—that confidentiality enhances the decisionmaking process by fostering a full and frank exchange of ideas—does not appear to justify the mental processes privilege. Because the mental processes privilege protects the thoughts and cerebrations of various officials (whether communicated or uncommunicated), the protection it provides is not directed at an exchange of ideas. 88
A simple set of examples highlights this point. Given the existence of the deliberative privilege, a decisionmaker cannot be asked: “As you and your associates were making the decision, what opinions did they express?” And he cannot be asked: “What opinions did you express to them?” The deliberative privilege protects the exchange of ideas that occurs as part of the decisional process. But many questions to the decisionmaker would not penetrate the exchange of ideas. For example, a litigant might ask the official: “What was your opinion on this subject?” Thus, the crucial inquiry is whether there is any reason that our evidentiary rules (and specifically the mental processes privilege) should prevent a litigant from asking a decisionmaker that question or a question like it. In other words, the inquiry is whether there is a reason to protect not just the communication (or the fact of communication), but the thoughts and opinions themselves.
The two justifications which support application of the mental processes privilege in the Morgan judicial review paradigm have little force outside that paradigm. While it may be “out of role” for an official whose administrative ruling is under review to testify as a witness on his decision, it is not “out of role” for an official to give evidence in litigation (frequently where the government is a party) where his testimony is relevant and where the law places upon the court the burden of both gathering the facts and adjudicating the merits of the dispute.
So, also, the efficiency rationale which justifies the mental processes privilege in the judicial review context has no force in cases where judicial review of administrative action is not the issue. Of course, subjecting officials to questions about their opinions and decisions consumes time they could be spending doing their duty. But, the “inefficiency” that arises simply from the fact of official testimony is of a different kind from that which would be created *38 if the mental processes privilege were not available in the Morgan judicial review paradigm. In the judicial review context, the inefficiency comes from altering the balance between administrators and courts in a way which undermines the very purpose of delegated authority. The “inefficiency” that arises from the fact of official testimony is simply a cost of litigation. Saying that the absence of a privilege makes litigation more costly for the government does not justify application of a privilege. 89
Justifications Based Upon the Effects of Exposing Changes in Position
One set of possible justifications for the mental processes privilege flows from the nature of the testimony which might be sought in the absence of the privilege. Presumably, a decisionmaker who approaches a problem thoughtfully occasionally will find that his position changes as his thinking matures. Perhaps the change will be stark; perhaps it will be merely a matter of emphasis. In any event, a healthy decisionmaking process should encourage such change where it is appropriate. If there is no mental processes privilege, however, a decisionmaker could be asked: “What was your view of the proposed policy on October 10?” And, so on month by month, or day by day. If he had changed his mind—once, twice, or many times—as he struggled with the proposed policy or with his position on it, such questioning would expose his internal struggle. By some accounts, this might be undesirable. 90
It could be argued that, without the mental processes privilege, decisionmakers would be less prone to consider alternatives and would be more likely to make snap judgments. A decisionmaker who wishes to be viewed as decisive might be reluctant to weigh alternatives or to entertain arguments for and against a policy, out of concern that this weighing of options could be mistaken for indecisiveness. Or, a decisionmaker who wants people to think that *39 he has good instincts might be less willing to change his mind, if by doing so he runs the risk of having his change of position thrown up to him at a later date.
It also could be argued, for reasons quite independent of how the decisionmaker wants to be perceived, that government benefits from a public perception that decisionmakers are strong and decisive, or that they are at least confident of what they decide. Such a perception, it might be said, increases public respect for government generally and adds authoritativeness to the decisions reached. If decisionmakers are forced to testify about how their opinions changed over time, it might compromise these values.
This set of arguments does not justify a mental processes privilege outside the Morgan judicial review paradigm. It is unlikely that decisionmakers will refrain from considering alternatives or that they will make snap judgments because they fear that, at a deposition conducted years after the decision is made, they will be exposed as indecisive. Job incentives, status, peer respect and a host of other factors should be sufficient to motivate decisionmakers to make the best decision possible. The business of decisionmakers is to make the best decisions possible. Their careers depend upon how well they do that. 91 These incentives and the need to achieve institutional objectives should sustain the decisionmaking process against the remote risk of occasional compelled disclosure.
Any independent interest the government might have in preserving an illusion that governmental decisionmakers do not struggle with their decisions is illegitimate. In a democracy, the presumption is that the processes of government should be open and officials should be judged as they are (not as they would like to be perceived). Moreover, creating the illusion that difficult decisions are made easily is a disservice both to government and to the public.
Justifications Based Upon the Relationship of the Official to Others in the Deliberative Unit
Another set of justifications for the mental processes privilege flows from the relationship of the officials to others—sometimes superiors, sometimes coworkers. For example, it could be argued that the relationship of administrative officials and their superiors in government bars the subordinates from publicly exposing their thoughts without the consent of their superiors. On this view, a superior has a right to expect a subordinate official to keep his views to himself (or within the deliberative unit), except as he (the superior) directs the subordinate official to divulge them to others. The superior may want his subordinates to remain silent to avoid the risk that several voices—different perhaps only in nuance—might distort public understanding of policy, or might breed confusion about it. Or, the superior simply may want to avoid the embarrassment of having his own people on record opposing his views. In either case, it could be argued that if the superior does not have such a right to demand silence from his subordinates, he might choose not to risk being embarrassed publicly by a dissenting subordinate—and that, to avoid that risk, he might surround himself with persons unlikely to hold dissenting opinions, a result with undesirable consequences for the decisionmaking process.
It also could be argued that forcing an official to reveal even his own thoughts might compromise his long-term ability to work with his co-workers in the decision-making process. On this view, the mental processes privilege is designed in part to protect the official from being forced to announce dissenting views that will embarrass colleagues. By providing protection, the privilege preserves the official’s long-term capacity to operate effectively and collegially in the decisionmaking process. *40 In other words, the claim is that the alternative—forcing the official to voice his disagreement publicly—would undermine his position as part of the decisionmaking team.
These arguments (like the ones discussed previously) ignore the considerable incentives that exist, independent of the privilege, to motivate decisionmakers to make good decisions. It is unbelievable, for example, that a superior would surround himself with advisors of one view, thereby sacrificing the input of others, simply to avoid the risk of being embarrassed in the few cases where a dissenting advisor later might be forced to testify as to the disagreement between them. 92
In another respect, these arguments assume that government actors (be they superiors or coworkers) should be assisted in presenting to the public a picture of unity (either between the superior and his subordinates or between coworkers in the decisional process) which is an illusion. This simply is not a fair assumption in a democracy, and the thrust of considerable legislation in recent years (such as FOIA, the Sunshine Act, and their state counterparts) is to the contrary.
Justifications Based Upon Institutional Concerns
A third set of justifications for the mental processes privilege flows from the nature of the very process by which, in the absence of the privilege, the information sought will be obtained—to wit, questioning officials about their decisions. On this view, a notion of institutional integrity underlies the mental processes privilege—a sense that the institutions of government are entitled to a degree of deference and formality. The idea is that we want governmental decisions depersonalized and institutionalized. Where a federal court permits inquiry into the mental processes of federal officials, this concern sounds in separation of powers. Where it permits inquiry into the mental processes of state officials, it sounds in comity. In either case, the essence of the argument is that there is something unseemly in the spectre of subjecting officials to the degradation and, possibly, harassment that might accompany detailed examination under oath on their opinions. 93
It could be argued that this concern is not simply an abstract one—that there will be very deleterious effects on governmental institutions. Subjecting government officials to such questioning (with the inevitable second-guessing involved) would force those contemplating careers in government to weigh yet another cost before deciding upon such careers. Moreover, given the likelihood that at least in some cases officials will not be able to remember or fully reconstruct their mental processes, the spectacle might shake public confidence in the official (or in government generally) without justification.
While both effects might be viewed as troubling, the notion that it is unseemly and degrading to “subject” officials to examination on their opinions seems based on assumptions about government which I already have described as wrongheaded. *41 And, problems of harassment, if they occur, can be handled with remedies (such as sanctions) that are readily available.
The idea that questioning officials about their views will have a deleterious effect on government institutions also is ill-founded. Potential government officials who would choose not to serve in government because their is a possibility that they will be questioned about their opinions probably do not belong in government. And, the public is unlikely to be disturbed at all by those few cases where government officials in good faith are unable to reconstruct their original views—so long as government is open as a general matter.
Justifications Based on the Deliberative Process
In the end, the strongest argument for extending the mental processes privilege to cases outside the Morgan judicial review paradigm is the existence of the deliberative privilege. 94 In the absence of a mental processes privilege, each participant in a deliberative unit could be asked his personal views on the various matters which might have been discussed as part of the deliberation. The deliberative privilege would bar inquiry into whether the particular participant communicated his personal views as part of the deliberative process. And, of course, it would bar inquiry into what others said. Nonetheless, in the absence of a mental processes privilege, by questioning each participant in the deliberative unit, a questioner could infer the nature of the entire conversation that the deliberative process is designed to conceal. In this sense, the mental processes privilege is a necessary counterpart to the deliberative privilege.
This point was made by the court in A.O. Smith v. Federal Trade Commission, 95 In that case, the FTC’s lawyers sought to employ the deliberative and mental processes privileges as a “one-way” ratchet, allowing government officials to divulge the contents of their own advisory communications to others but not allowing the witnesses to relate the responses they received. The court disagreed, on the ground that a “one-way” privilege would vitiate the privilege in its entirety:
The Commission [argues] that little damage to the public interest occurs when a government employee is permitted to reveal the substance of his (or her) communications, as long as the employee is prevented from divulging the communications of others. This view of executive privilege is unacceptable. The purpose of this privilege is to promote frank and honest discussion within government agencies during the formulation of policy. If the privilege only attached to what one hears from others, as opposed to what one says to others, the privilege would be rendered meaningless since the purpose behind the rule would have evaporated. Moreover, given the Commission’s view of the privilege in this context, one could always discover the total content of various intra-agency communications simply by deposing every participant to a particular conversation and obtaining information as to what that individual communicated to others. 96
This point may be what Judge Robinson had in mind when in Carl Zeiss he referred to the mental processes privilege as “inex *42 tricably intertwined, both in purpose and objective” with the deliberative privilege and then added: “Each rule complements the other, and in combination they operate to preserve the integrity of the deliberative process itself.” 97
So also, this point may have been in Judge Tenney’s mind when, in Securities Exchange Commission v. Perera Company, 98 he invoked the mental processes privilege in refusing to order the deposition of an SEC official “in the interest of promoting the free and candid interchange of ideas as a means to achieving effective executive decisions.”
Given that the deliberative privilege has been recognized as necessary for effective government, and given that the deliberative privilege clearly applies in cases (like the one at hand) in which judicial review of administrative action is not the issue, if it is so that the mental processes privilege is a necessary complement to the deliberative privilege in such cases, then the mental processes privilege should apply in such cases. I believe that the mental processes privilege is justified on this ground.
D) The Scope of the Mental Processes Privilege in Cases Where Judicial Review of Administrative Action Is Not the Issue
If the justification for the existence of the mental processes privilege is that it complements the deliberative privilege, its scope and application is coextensive with the scope and application of that privilege. 99
The deliberative privilege applies only to communications that are part of a decision-making process. It does not apply to the “opinions” or “conclusions” of those not part of that process. It does not apply to purely factual material, or to statements that summarize facts. Furthermore, the deliberative privilege does not apply to descriptions of the agency’s policy after it has been adopted, to pre-decisional documents that are incorporated into the agency’s final decision, or to post-decisional material which evaluates the decision. Each of these limitations must apply to the mental processes privilege as well.
One point bears elaboration, because I anticipate that it will be more often an issue where the mental processes privilege is being applied than it is where the deliberative privilege is being applied. It is well settled that the deliberative privilege does not protect the product of the deliberative process—the decision. So also the mental processes privilege does not protect that product. It makes no difference whether the decision is written, unwritten, or partly written and partly unwritten. At the point where the deliberative process comes to an end, the protection of both privileges comes to an end. Thus, a document containing the decisionmaker’s final position would not be protected by the deliberative privilege; a contemporaneous oral statement made by him to the other members of the deliberative unit would not be protected by the deliberative privilege; and his contemporaneous thoughts and opinions (even if not communicated to the other members of the deliberative unit) would not be protected by the mental processes privilege. Nothing in the rationales that support either privilege warrants protecting these matters.
The same concept can be put another way. At a certain point, when the decision-maker comes to rest, the decisionmaking process comes to an end. The decisionmaker’s views at that point are his final position. It makes no difference whether those views are written or unwritten. 100
*43 The point just made obviously applies only to persons with (at least de facto) decisionmaking authority. The deliberative process does not end when a subordinate reaches a final position. Of course, once the decisionmaker has reached a conclusion and the process is over, the post-decisional views of subordinates about that decision are not within the scope of the privilege.
Defining the scope of the mental processes privilege does not end the matter. Just as the deliberative privilege is not an absolute privilege, so also the mental processes privilege is not an absolute privilege. Thus, even material concededly within its scope sometimes must be disclosed. Whether particular material within its scope must be disclosed is determined by a balancing test which turns upon the nature of the allegedly protected material and the context of the specific litigation. In this case, Chief Judge Curtin has ruled that most material falling within the scope of the deliberative privilege should not be disclosed. He noted one important exception, however, OCC has the right to obtain any material which, though falling within the scope of the privilege, explicitly evidences the State’s concern for the possible political ramifications of the Love Canal situation (or other factors unrelated to the health and safety of those living or working near Love Canal) and which suggests various actions in light of these political ramifications (or other factors unrelated to the health and safety of those living or working near Love Canal). These rulings should govern application of the mental processes privilege as well.
III. Application of the Ruling in Specific Instances Thus Far Presented
The Appendix to this Ruling contains 40 excerpts from the transcripts of Doctor Axelrod’s and Doctor Whalen’s depositions, each excerpt an instance where the State invokes the mental processes privilege. To illustrate the applications of the principles announced in this Ruling, I now will apply these principles to each of the 40 instances.
In some cases, I indicate a need for a proffer of proof by the State. Where I have made that indication, the State should submit by May 15, 1988, for in camera review a proffer identifying the decision which was the product of the deliberative process creating the claim of privilege, describing the deponent’s role in that deliberative process, and outlining the substance of the deponent’s testimony in a manner which, in good faith, takes care to mention anything arguably bringing the testimony (or any part thereof) within one of the categories of otherwise privileged information which nonetheless, in this case, should be released.
Item #1: The mental processes privilege does not apply. A deponent’s post-decisional opinions are not within the scope of the privilege.
Item #2: The mental processes privilege appears to apply. The questions which are not answered probe pre-decisional mental processes. The State should make the required proffer of proof.
Item #3: The mental processes privilege does not apply, so long as the question seeks merely the deponent’s final but unwritten views. Once the decisionmaker has come to rest, the deliberative process is complete.
Item #4: It is not clear whether Doctor Clifford’s views (and hence Doctor Whalen’s reactions to them) were articulated before or after the decision. The State should make the required proffer of proof.
Item #5: The mental processes privilege does not apply. The privilege does not prevent the examiner from asking the witness whether or not he recollects something. The deliberative privilege (not the mental processes privilege) may prevent the examiner from asking the content of the recollection—depending upon the con *44 text in which the reports were made (if made), their, content, and other factors.
Item # 6: The deliberative privilege protects what was said to Doctor Whalen in the pre-decisional situation, and the mental processes privilege protects his understanding of those statements. No proffer of proof is necessary here because the context provided by the transcript is sufficient.
Item # 7: The mental processes privilege does not apply. The material sought is factual.
Item # 8: The mental processes privilege does not apply, because the question probes whether or not Doctor Whalen presently would be surprised. However, the question need not be answered because whether he would be surprised is clearly irrelevant and argumentative.
Item #9: The mental processes privilege does not apply.
Item #10: The mental processes privilege appears to apply. The State should make the required proffer of proof.
Item #11: The mental processes privilege does not apply, so long as the question seeks merely the deponent’s final but unwritten views. Once the decisionmaker has come to rest, the deliberative process is complete. •
Item #12: The mental processes privilege does not apply. The information sought appears to be factual. To the extent it seeks more, it is still unprotected, so long as the question seeks merely the deponent’s final but unwritten views. Once the decisionmaker has come to rest, the deliberative process is complete.
Item #13: Either the deliberative privilege or the mental processes privilege may apply, but it is difficult to make that assessment on this record. The State should make the required proffer of proof.
Item #14: The mental processes privilege does not apply.
Item #15: The mental processes privilege does not apply, so long as the question seeks merely the deponent’s final but unwritten views. Once the decisionmaker has come to rest, the deliberative process is complete.
Item #16: The mental processes privilege appears to apply. No proffer is necessary because the context is clear.
Item #17: The mental processes privilege appears to apply. No proffer is necessary because the context is clear.
Item #18: The mental processes privilege does not apply, so long as the question seeks merely the deponent’s final but unwritten views. Once the decisionmaker has come to rest, the deliberative process is complete.
Item #19: The mental processes privilege does not apply, to the extent that the question seeks Doctor Whalen’s present evaluation of material. The question does not invade the deliberative process.
Item #20: The mental processes privilege does not apply, to the extent that the question seeks Doctor Whalen’s present evaluation of material. The question does not invade the deliberative process.
Item #21: The mental processes privilege does not apply. The information sought simply asks clarification of an answer already given.
Item #22: The information sought in the first question (Do you know why that was one that they considered?) is protected by the deliberative privilege. The information sought in the second question (Did inhalation pose the primary risk to the residents of Love Canal?) is not privileged because it only seeks Doctor Whalen’s present views on the matter.
Item #23: The information sought does not appear to come within the scope of the privilege. To the extent the question seeks to elicit a present interpretation of the document, neither the deliberative privilege nor the mental processes privilege applies. If the State wishes to make a proffer of proof to support application of the privilege on some other grounds, it may do so.
Item #24: The information sought does not appear to come within the scope of the privilege. To the extent the question seeks to elicit a present interpretation of the document, neither the deliberative privilege nor the mental processes privilege applies. *45 If the State wishes to make a proffer of proof to support application of the privilege on some other grounds, it may do so.
Item #25: The mental processes privilege does not apply, so long as the question seeks merely the deponent’s final but unwritten views. Once the decisionmaker has come to rest, the deliberative process is complete.
Item #26: The mental processes privilege does not apply, so long as the question seeks merely the deponent’s final but unwritten views. Once the decisionmaker has come to rest, the deliberative process is complete.
Item #27: The mental processes privilege does not apply, so long as the question seeks merely the deponent’s final but unwritten views. Once the decisionmaker has come to rest, the deliberative process is complete.
Item #28: The mental processes privilege appears to apply.
Item #29: The mental processes privilege does not apply. The question elicits purely factual information.
Item #30: The deliberative privilege protects the sources of the information. The other question (Can you explain why it does not?) is not protected, so long as the question seeks merely the deponent’s final but unwritten views. Once the decision-maker has come to rest, the deliberative process is complete.
Item #31: The mental processes privilege does not apply. The questions seek purely factual information.
Item #32: The mental processes privilege does not apply. The questions seek either purely factual material or Doctor Whalen’s present assessment of the consistency of such material and a statement in the exhibit. Such inquiry does not invade the deliberative process.
Item #33: The mental processes privilege does not apply. The first question elicits purely factual information. The second question merely asks whether a final decision was reached.
Item #34: The mental processes privilege does not apply, so long as the question seeks merely the deponent’s final but unwritten views. Once the decisionmaker has come to rest, the deliberative process is complete. Indeed, these questions seem to probe only his present views.
Item # 35: The deliberative privilege appears to apply, except insofar as the question seeks purely factual material. The State should make the required proffer of proof.
Item #36: The mental processes privilege does not apply. The question seeks Doctor Whalen’s present opinion of the consistency of Doctor Axelrod’s expressed view and unprivileged factual data.
Item #37: The mental processes privilege does not apply, so long as the question seeks merely the deponent’s final but unwritten views. Once the decisionmaker has come to rest, the deliberative process is complete.
Item #38: The mental processes privilege does not apply. The information is purely factual.
Item #39: The information sought in the first question (see (A) p. 59) and the second question (see (B) p. 60) is protected by the deliberative privilege. The information sought by the other two questions does not appear to be connected to the deliberative process; these questions appear to request only an explanation of a speech.
Item #40: The information sought in the first two questions is protected by the deliberative privilege. The third question (see (C) p. 60) is not protected; it merely seeks to determine whether the Department ever reached a conclusion on an issue.
It is my hope that these forty specific determinations will guide the parties as they apply the general principles outlined in this Ruling. If any party wishes me to reconsider one or more of the specific rulings, I will do so if the party submits by May 15 a request for reconsideration which details the reasons why that party believes the specific ruling is inconsistent with the general principles contained in this opinion. When appropriate, a proffer of proof should be provided.
*46 IV. Procedures Applicable to the Mental Processes Privilege in This Case
I have ruled that the mental processes privilege does apply in this case, but that it is limited in scope. If our experience in applying the deliberative privilege forecasts in any way what our experience will be as we implement this Ruling, the parties sometimes may disagree whether a particular question calls for an answer covered by the mental processes privilege. Therefore, so that discovery may proceed as expeditiously as possible, with due regard to the rights of the respective parties, I establish the following procedure to cover cases where the parties do not agree on the application of the mental processes privilege.
Option #1
The parties may proceed with the deposition as they did with Doctor Whalen’s deposition. In other words, under Option # 1, the deponent’s attorney directs its witness not to answer the question, and the questioning party moves to compel an answer based upon the transcript of the testimony. If Option # 1 is chosen, I should be provided with a copy of the transcript and an offer of proof by the deponent’s attorney identifying the decision which was the product of the deliberative process creating the claim of privilege, describing the deponent’s role in that deliberative process, and outlining the substance of the deponent’s testimony in a manner which, in good faith, takes care to mention anything arguably bringing the testimony (or any part thereof) within one of the categories of otherwise privileged information which nonetheless, in this case, should be released. The transcript should be provided to me as usual; the proffer of proof should be sealed and delivered to me just as documents have been sealed and delivered to me in the past for in camera inspection. The deadline for submission of the proffer of proof is the day that the transcript is delivered.
Option #2
At the discretion of any party, instead of proceeding under Option # 1, the deposition may recess briefly and, after the recess, proceed in a manner similar to a deposition upon written questions. In other words, under Option #2, the questioning party propounds a series of questions to the reporter, which questions the reporter then asks the deponent with only the deponent, the deponent’s attorney, and the court reporter present. At the end of the testimony, the deponent or the deponent’s attorney must identify the decision which was the product of the deliberative process creating the claim of privilege and describe the deponent’s role in that deliberative process. The record of that testimony, including the supplemental material, is sealed and submitted to me with the transcript of the rest of the witness’s testimony for that day.
Option #3
At the discretion of any party, instead of proceeding under Option # 1 or Option # 2, the parties may telephone me for a ruling. Under Option # 3, the deponent’s attorney must be prepared to provide to me (if necessary, in camera) an identification of the decision which was the product of the deliberative process creating the claim of privilege describing the deponent’s role in that deliberative process, and briefly outlining the substance of the deponent’s testimony—in a manner which, in good faith, takes care to mention anything arguably bringing the testimony (or any part thereof) within one of the categories of otherwise privileged information which nonetheless should be released. If Option # 3 is chosen by a party, I may choose nonetheless to have the parties proceed under Option # 1 or Option #2.
John Sexton JOHN SEXTON Special Master
April 30, 1988.
APPENDIX TO RULING ITEM # 1
January 19 Axelrod Deposition at pages 349-351
MR. YABLONSKI: [In Exhibit 19] you write the uncertainty could, conceivably, be *47 eliminated by making the zero level of contamination a function of the probable risk level. What does that mean?
DR. AXELROD: That you could remove that uncertainty by—by accepting the assumption that you would permit only a zero risk. In other words, accept no risk and therefore, you would have defined with absolute certainty what it is that you were prepared to accept.
MR. YABLONSKI: In your view, is that a realistic proposition?
MR. MARTIN-LEFF: Objection.
[Conference between the witness and Mr. Martin-Leff]
MR. MARTIN-LEFF: This question goes to the deliberative process of defining, as a matter of policy, an appropriate risk level. And we object on the grounds of deliberative privilege.
MR. YABLONSKI: The privilege involves a communication, what’s the communication?
MR. MARTIN-LEFF: In this case, you are probing ... the mental processes of a participant in the decision-making process.
MR. YABLONSKI: What decision?
MR. MARTIN-LEFF: This witness participated in decisions with respect to this kind of issue at Love Canal. And a question as to his opinion at this time probes mental processes of a participant at that time and is covered by the deliberative process privilege.
MR. YABLONSKI: [W]hat you’re saying is that we can’t ask questions of any State employees that are opinion.
MR. MARTIN-LEFF: You can’t ask questions of opinion.
MR. YABLONSKI: No, no. The privilege protects the communication of an opinion to somebody else. I’m not asking Dr. Axelrod whether he told someone else that his view on his subject was X, Y, or Z, I’m simply asking him today what is his view and I think that’s an entirely different subject and entirely different question.
MR. MARTIN-LEFF: It’s our position by probing his view today, you will invade the decision-making process that this same witness participated in at the time of the decision and communicated his views and therefore, it would destroy the deliberative privilege to permit this kind of inquiry.
ITEM # 2
Whalen Deposition at pages 15-17
MR. YABLONSKI: Well, with regard to Love Canal, was it Dr. Axelrod’s practice to provide you with analytical results of samples taken at the Love Canal?
MR. MARTIN-LEFF: Objection as to form. You may answer.
DR. WHALEN: The answer to that would be yes.
MR. YABLONSKI: And what would you do with the—with the data when you received it?
MR. MARTIN-LEFF: Objection. That question, which is completely unrestricted in time and context of the process that Dr. Whalen was involved in, could implicate the mental processes of Dr. Whalen in making policy decisions on Love Canal, and under the authority of U.S. v. Morgan, we consider the mental processes of the witness to be privileged. And I will instruct the witness not to answer that question.
MR. BOOTE: I’d like the question read back, please.
(The above-requested question was then read by the reporter.)
(Conversation between Mr. Boote and Mr. Martin-Leff.)
MR. YABLONSKI: Would you interpret the data, Doctor?
MR. MARTIN-LEFF: Same objection, same instruction.
MR. YABLONSKI: Are you qualified to interpret chemical analytical data?
MR. MARTIN-LEFF: You may answer the question.
DR. WHALEN: I am not qualified as a toxicologist. I believe I am qualified, when competent people explain the situation to me, to assessing the situation.
MR. YABLONSKI: And when Dr. Axelrod would provide the data to you, would *48 he just provide you with raw data, or would he provide you with some assessment?
MR. MARTIN-LEFF: Objection. Same objection, same instruction.
MR. YABLONSKI: I’m not asking for what the assessment was, I’m asking was there an assessment.
MR. MARTIN-LEFF: Well, here we’re talking about the communications from Dr. Axelrod to Dr. Whalen, and because of the open-ended nature of the question, we could be talking about deliberative communications on policy matters.
MR. YABLONSKI: The question was only whether there was—anybody did— ever did any assessment of the data. Did anybody ever interpret the data? I—I fail to see how this can possibly be privileged. I didn’t ask for what—what the assessment was. I asked for whether there was an assessment—
MR. MARTIN-LEFF: All right. You may answer yes or no.
MR. YABLONSKI: —provided to you.
MR. MARTIN-LEFF: You may answer yes or no.
DR. WHALEN: Yes.
ITEM #3
Whalen Deposition at page 20
MR. YABLONSKI: What was the Department of Health’s point of view on the chemical findings at Love Canal?
MR. MARTIN-LEFF: The Department of Health has published written assessments as to those questions, and I’m not going to permit this witness to offer his own supplementary thoughts about those documents.
MR. YABLONSKI: Why not? On what basis? I mean, if his—I’m asking him his recollection, what was the Department of Health’s point of view.
MR. MARTIN-LEFF: I believe that inquiry would probe the mental processes of the chief decision maker for the State of New York in the assessment of risk at Love Canal in 1978, and we rely on the Morgan case and its progeny for the mental process rule.
ITEM # 4
Whalen Deposition at pages 37-38
MR. YABLONSKI: Did Dr. Clifford ever tell you he thought it was a mistake to issue that order?
DR. WHALEN: Oh, I believe Dr. Clifford had made his point of view known.
MR. YABLONSKI: What was his point of view—
DR. WHALEN: Early on.
MR. YABLONSKI: —as you understood it, Dr. Whalen?
DR. WHALEN: I think Dr. Clifford’s point of view was that this was a public health nuisance that should be handled on a very low-key level and that it was not a major problem____
MR. YABLONSKI: Did you agree with that?
MR. MARTIN-LEFF: Objection. [I’m] not going to permit this witness’ thought processes on that policy question to be examined. [I] instruct you not to answer.
ITEM # 5
Whalen Deposition at page 61
MR. YABLONSKI: Do you know whether anyone ever concluded as a result of their investigations that the Canal was at one time open to the river?
DR. WHALEN: No, I did not.
MR. YABLONSKI: Do you know—do you have any recollection of anything that anybody concluded about the geology of the Love Canal area?
MR. MARTIN-LEFF: Objection. That question with its broad scope would also go to mental processes of the witness, and I instruct the witness not to answer.
ITEM # 6
Whalen Deposition at pages 62-64
MR. YABLONSKI: ... Do you recall any facts about the geology of the Love Canal area, anything?
DR. WHALEN: Yes.
MR. YABLONSKI: Okay, what—tell us what you do recall about it.
*49 DR. WHALEN: Well, I remember that there were conclusions drawn as to the permeability of the soil and that as one got down, one came to an—to a layer that was impervious to water. The engineers or geologists or someone described it as an overflowing bathtub, when one would get too much moisture within this geology, leading it to overflow, in essence, as an overflowing bathtub. That’s about all I remember.
MR. YABLONSKI: How deep was the layer of more permeable soils, as you recall?
DR. WHALEN: Well, I think there were two layers. I think there was a short upper layer which was permeable, then a semi-permeable layer, and then an impermeable layer. The actual depths I can’t recall.
MR. YABLONSKI: Where did you get this information, Dr. Whalen?
DR. WHALEN: I don’t know.
MR. YABLONSKI: Do you recall who first mentioned to you the bathtub theory?
DR. WHALEN: No, I do not.
MR. YABLONSKI: What is your understanding of the bathtub theory?
MR. MARTIN-LEFF: Objection. Obviously, this witness is not going to be a primary source of evidence on geology or hydrogeology in this case. To the extent that the questions nevertheless seek this witness’ understanding and inferences from that kind of information, I believe the question is probing his mental processes as a decision maker with respect to health threats at Love Canal, and I will instruct him not to answer the question.
MR. YABLONSKI: Okay. Well, I’m not asking him for his theory. I’m asking him for what he understood the bathtub theory —I understood it was reported to him by somebody else. What did he understand them to be saying about it. And you’re going to instruct him on that basis?
MR. MARTIN-LEFF: That is correct.
MR. YABLONSKI: And the reason is the deliberative privilege? Is that—
MR. MARTIN-LEFF: That's right.
ITEM #7
Whalen Deposition at pages 73-74
MR. YABLONSKI: [Richards Exhibit 30 says] c

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9027258. Public record. Not legal advice.