On February 26, 1993, a bomb exploded in the World Trade Center in New York City killing six people, injuring many others, and disrupting numerous businesses. In a criminal trial, four terrorists were convicted in federal court of conspiracy. In the pretrial discovery phase of this consolidated civil action, Plaintiffs sought to obtain from the Port Authority ("PA"), owner of the World Trade Center, building security plans and documents in order to support their negligence claim. The PA asserted New York's public interest privilege exception on the grounds of public safety to support its refusal to release the security information.
In 1997, the trial court issued two clarifying orders, essentially withholding from disclosure certain documents or parts of documents based on the public interest privilege. Defendant appealed, seeking to have all of the documents withheld. Plaintiffs cross-appealed, arguing that the privilege did not apply because the PA acted as a private landlord. The Appellate Division held as a matter of law that the PA cannot invoke the public interest privilege when acting as a private landlord. Defendant was granted leave to appeal on the issue of discovery of the disputed security information. The Court of Appeals held that as a matter of law the PA is not precluded from invoking the public interest privilege.
1. Whether a public entity acting in a quasi-private capacity can invoke the public interest privilege.
2. Whether a court should apply a factual balancing test in evaluating the application of the privilege.
1. Yes. A public entity acting in a quasi-private capacity may invoke the public interest privilege.
2. Yes. An in camera review should be held to determine whether the public interest privilege applies to the specific facts at issue.
Cases Cited by the Court
Other Sources Cited by the Court
State of the Law Before World Trade Center Bombing Litigation
The Court of Appeals detailed the public interest privilege exception to New York's liberal discovery rules in Cirale v. 80 Pine St. Corp, 35 N.Y.2d 113 (N.Y. 1974). The privilege protects the public interest in the confidentiality of communications of officers acting in their official capacities. See id, at 117. Cirale required that the public body invoking the exception explain and justify the specific public interest it was protecting. Courts are to balance this specific public interest against the policy interest in full disclosure embodied in the liberal discovery rules. If the protected public interest outweighed the interest of liberal discovery, the information was privileged.
Effect of World Trade Center Bombing Litigation on Current Law
World Trade Center Bombing Litigation revisits the balancing test first announced two decades ago in Cirale. The World Trade Center Bombing Litigation Court applies a flexible, fact-specific balancing test to determine if PA had a public interest privilege for its security related documents. The Court rejects both a per se rule of non-disclosure for security analyses and an absolute preclusion of the privilege for PA. By rejecting the extreme positions proposed by each party, the Court of Appeals indicates that the trial court must undertake a factual inquiry on a case-by-case basis, and that the test is not adaptable to rigid matter-of-law analyses. The trial court must weigh the specifically-alleged harm to the public interest flowing from disclosure against the harm to the party seeking disclosure. Specifically, the Court reiterates that the prevailing interests to be considered in the privilege balancing test are: (1) whether the security documents contain confidential information concerning safety or security systems; (2) whether allowing disclosure would impair candor among government agencies attempting to ensure public safety; and (3) whether disclosure would reveal information given by law enforcement officers under the pledge of confidentiality. As in the instant case, this balancing test may require the trial court to conduct an in camera review of the documents asserted to be privileged under the public interest privilege. Finally, the Court clarifies that if privileged under the Cirale balancing test, the documents are unavailable regardless of their usefulness to a party seeking disclosure.
The Court did not provide clear guidance regarding what weight to give to competing interests when conducting the balancing test. Would, as in the instant case, the balancing be effected by the notoriety of the crime? Can a private entity ever be quasi-public thereby gaining access to the public interest privilege? Although the Court did not address the issue of whether the public interest privilege should be absolutely precluded under similar circumstances where private landlords are involved, there could be strong incentives to protect security documents of sites that attract tourists and may tempt terrorists, such as the Empire State Building. It is unclear whether, in a future case, the Court will address the question of expanding the privilege to include privately owned national landmarks.
Survey of the Law in Other Jurisdictions
Federal common law also recognizes a governmental privilege that prevents discovery of information when disclosure would be against the public interest. In Machin v. Zuckert, 316 F.2d 336 (D.C. Cir. 1963), the United States Court of Appeals for the District of Columbia held that certain portions of an accident report prepared by the Air Force following a B-25 Bomber crash were privileged and that the Secretary of the Air Force could not be compelled to produce the documents in civil litigation. The court found the privilege to apply when harm to the public interest would result from disclosure of reports obtained with the government's promises of confidentiality. However, portions of the report that do not contain privileged information are discoverable. In camera, the trial court should determine which portions of the report are privileged and which are not.
The United States Supreme Court has recognized the Machin privilege as a federal common law privilege. In United States v. Weber Aircraft Corp., 465 U.S. 792 (1984), the Supreme Court faced facts similar to those of Machin and held that the Freedom of Information Act ("FOIA") could not be used to compel civil discovery of otherwise privileged government information. Therefore, private litigants could not use FOIA to overcome the Air Force's assertion of the well recognized Machin privilege.
In addition to the common law privilege, some states have statutory provisions recognizing a governmental public interest privilege. For example, Section 1040 of California's Evidence Code codifies an official information privilege. In part, that privilege protects against discovery of information that is "acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made ... [when] [d]isclosure of the information is against the public interest because there is a necessity for preserving the information that outweighs the necessity for disclosure in the interest of justice." Ca. Evid. § 1040 (1998). In Shepherd v. Superior Court of Alameda, 550 P.2d 161 (Cal. 1976), the California Supreme Court found that § 1040 creates a conditional privilege when based upon public interest considerations. When the conditional privilege is asserted, the trial court must first determine in camera whether the information falls within the privilege. If so, the court must then balance the public interests favoring disclosure against those favoring non-disclosure.