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NEW YORK � The New York City Police Department does not need to release documents and information regarding its new policy of random subway searches, a federal judge has ruled. The decision comes in an ongoing case filed by five New Yorkers seeking to stop the “suspicionless” searches on the grounds that they violate the Fourth Amendment. “[I]n determining whether privileged material should be disclosed, courts must carefully weigh defendants’ interests in non-disclosure ‘against [plaintiffs'] need for information,” Southern District Judge Richard Berman wrote in MacWade v. Kelly, 05 Civ. 6921, quoting Otterson v. National R.R. Passenger, 228 FRD 205. “Simply put, there does not at this time appear to be a ‘substantial need’ for disclosure of the disputed material,” Judge Berman concluded. In their attempt to put an end to the searches, the plaintiffs, represented by the New York Civil Liberties Union, sought to discover such information as the number of days during the first month of the practice that no searches were conducted and the number of subway stations each day that went unsearched. On Aug. 18, U.S. Magistrate Judge Frank Maas � to whom Judge Berman has assigned discovery disputes in the case � ordered the city to disclose three categories of documents and information. “At a minimum, discovery along the lines sought by the plaintiffs directly addresses the efficacy of the city’s subway bag search program as a tool to deter and detect terrorist activity,” Magistrate Judge Maas wrote in his decision, also captioned MacWade v. Kelly, 05 Civ. 6921. Last week, both the city and the plaintiffs submitted objections to the order. The city claimed Magistrate Judge Maas abused his discretion by, among other things, failing to “weigh the harm of the disclosure.” The plaintiffs contended, among other things, the order was too narrow. On Friday, Judge Berman ruled on the objections, siding squarely with the city. Given the sensitive nature of the documents, he wrote, Magistrate Judge Maas should have reviewed them in camera before ordering disclosure. Even if disclosure were warranted, Judge Berman added, the magistrate judge failed to explain how he derived his sampling method and how it would accurately measure the desired data. It was also “premature (and unnecessary)” to conclude that the documents were relevant to the plaintiffs’ claim. And finally, the “Magistrate Judge’s Discovery Order does not appear adequately to have assessed the unrebutted affidavit of Deputy Police Commissioner David Cohen which argues that ‘unpredictability introduces uncertainty into both the planning and execution of terrorist attacks,’” Judge Berman held. “The court recognizes the importance of discovery in all cases … and is not foreclosing additional disclosure here should circumstances warrant,” Judge Berman concluded. “But given the sensitive nature of the material sought and plaintiffs’ unproven need for the information, the court grants defendants’ motion to shield the disputed documents and information at this time.” Judge Berman scheduled an evidentiary hearing for Sept. 7. “We were surprised,” said the NYCLU’s lead counsel, Christopher Dunn. “The information we were seeking is plainly central to the constitutionality of the policy and we did not believe its release posed any threat of harm.” Instead of relying on a court order to obtain the information, the NYCLU is now collecting the data itself, Dunn added. Since Thursday it has sent monitors to over 200 subway stations to tabulate search information. “We feel this information is critical to the case and when the city appealed, we were just being prudent,” Dunn said. In a written statement New York City Law Department Special Counsel Gail Donoghue said, “We feel the city’s policy of random subway searches meets all appropriate legal requirements, and preserves the important balance between protecting our city and preserving individual rights. We believe the NYCLU is shortsighted in failing to recognize this. We are confident our position will prevail in court.” Mark Fass is a reporter with the New York Law Journal, a Recorder affiliate.

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