The opinion of the court was delivered by: CHARLES R. RICHEY
The above-captioned case comes before this Court for review of the Report of the Special Master. Because the Court finds that the legal conclusions and factual findings of the Special Master were correct, the Court adopts the Report of the Special Master and his findings and conclusions.
The Plaintiff, Myra Walker ("Walker"), filed an employment discrimination charge against the Defendant, NCNB National Bank of Florida ("NCNB"), with the Miami District Office of the Equal Employment Opportunity Commission ("EEOC"). The District Office found no reasonable cause to believe that Walker had been subjected to discrimination. Walker sought a review of this decision in the EEOC's Office of Determinations Review Program ("DRP") in Washington, D.C.
On December 4, 1990, Walker filed a discrimination suit against the Defendant, NCNB, in the Middle District of Florida. The next day, the DRP issued a letter of determination ("the Letter"), finding reasonable cause to believe NCNB had discriminated against Ms. Walker. The Letter was signed by James H. Troy, ("Troy"), Director of the Office of Program Operations.
On January 16, 1992, the Defendant served Troy with a subpoena duces tecum. At the deposition Mr. Troy refused to answer questions regarding the Letter, including questions about the procedure that was followed in the Letter's formulation and the basis for the determination of reasonable cause. The Defendant filed a Motion to Compel Discovery in this Court, and the EEOC sought to quash the subpoena.
This Court referred the dispute to Magistrate Judge Howard Snyder of the Middle District of Florida, whom this Court appointed as a Special Master pursuant to Rule 53 of the Federal Rules of Civil Procedure. On September 29, 1992, the Special Master issued his Report in this discovery dispute. The Defendant subsequently filed a number of objections to the Report of the Special Master. After a hearing and thorough review of the Defendant's objections, this Court must conclude that the Report of the Special Master is accurate in both its findings of fact and conclusions of law and adopts in whole the Report of the Special Master.
II. THE SPECIAL MASTER CORRECTLY ARTICULATED, AS THE DEFENDANT CONCEDES, THAT THE "HIGH GOVERNMENT OFFICIAL" DOCTRINE AND THE "DELIBERATIVE PROCESS" PRIVILEGE NORMALLY PRECLUDE INQUIRY INTO THE DECISION-MAKING PROCESS OF GOVERNMENT OFFICIALS.
The Special Master concluded that two doctrines prevented the Defendant from deposing Troy. The Defendant conceded that the Special Master correctly articulated both doctrines. See Defendant's Objections to Report of Special Master, at 7, 14. Because the Special Master correctly described these doctrines in his Report and the parties do not object to that description, the Court will only briefly set forth the doctrines here.
The first doctrine is known as the "high government official" doctrine. The doctrine, first set out in Morgan v. United States, 304 U.S. 1, 82 L. Ed. 1129, 58 S. Ct. 773, 58 S. Ct. 999 (1938), protects government officials from being compelled, absent extraordinary circumstances, to testify about their reasons for taking official actions. The rationale for the doctrine is that subjecting officials to interrogation about how they reached particular decisions would impair that decision-making process by making officials less willing to explore and discuss all available options, no matter how controversial. Thomas v. Baker, 288 U.S. App. D.C. 303, 925 F.2d 1523, 1525 (D.C. Cir. 1991). Consequently, inquiry into the decision-making process is permitted only upon "a clear showing of misconduct or wrongdoing." Franklin Savings Ass'n v. Ryan, 922 F.2d 209 (4th Cir. 1991).
The second doctrine put forward by the EEOC as providing a reason not to permit the deposition of Mr. Troy is that the information sought falls within the "deliberative process" privilege. This privilege protects material disclosing the deliberative process, including evaluations, expressions of opinion, and policy recommendations. To apply, the privilege must be asserted by the head of the agency about which information is sought, after personal consideration of the material allegedly covered by the privilege. In order to overcome the privilege, the party seeking disclosure must show that the interests in disclosure outweigh the interests in non-disclosure. Bigelow v. District of Columbia, 122 F.R.D. 111, 113 (D.D.C. 1988) (discussing the relevant case law). The Court should consider the interest in accurate judicial fact-finding, the relevance of the evidence sought, the effect disclosure will have on future deliberations by the agency involved, and the role of the government in the litigation. See In re Subpoena Served Upon the Comptroller of the Currency, 967 F.2d 630, 634 (D.C. Cir. 1992).
III. THE SPECIAL MASTER CORRECTLY CONCLUDED THAT BOTH THE "HIGH GOVERNMENT OFFICIAL" DOCTRINE AND "DELIBERATIVE PROCESS" PRIVILEGE ENABLE THE EEOC TO SAFEGUARD THE PROCESS BY WHICH THE EEOC INVESTIGATES CHARGES OF DISCRIMINATION.
The Special Master determined, after examining the facts of this case, that both the "high government official" doctrine and the "deliberative process" privilege applied and the EEOC could prevent the Defendant from questioning Mr. Troy regarding the formulation, creation, and drafting of the Letter. The Special Master found that questions about the methods by which the decision to issue the Letter was reached, the matters considered, the contributing influences, and the role played by the work of others were all intimate parts of the decision-making process.
First, with respect to the "high government official" doctrine, the Court agrees with the Special Master that the Defendant has failed to make a clear showing of misconduct or wrongdoing to warrant making inquiries into the reasons for the issuance of the Letter. The Defendant asserts that a deposition of Mr. Troy will show that he was guilty of misconduct because he is not familiar with the facts of the investigation leading up to the ...