Duhaime's Law Dictionary


Deliberative Definition:

The private and candid give-and-take of a consultative or policy development process by a public agency.

Related Terms: Deliberative Secrecy, Deliberative Process Privilege

The term is relevant to freedom of information exposure of public agencies as many jurisdictions exclude documents which reveal the agenda, minutes or content of any deliberative meeting within an agency, on the basis of what is known as the deliberative process privilege.

In Center for Biological Diversity, Justice Patel of the United States District Court adopted these words:

"In order to be exempt, the documents must be both predecisional and deliberative. A predecisional document is one prepared in order to assist an agency decision-maker in arriving at his decision, and may include recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency. A predecisional document is part of the deliberative process, if the disclosure of the materials would expose an agency's decision-making process in such a way as to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions."

In Wolfson, Justice wrote this opinion on November 30, 2009:

""The deliberative process privilege shields only government materials which are both pre-decisional and deliberative. To show that a document is pre-decisional, the agency need not identify a specific final agency decision; it is sufficient to establish what deliberative process is involved, and the role played by the documents at issue in the course of that process. The deliberative process privilege does not shield documents that simply state or explain a decision the government has already made.

"A document is deliberative if it makes recommendations or expresses opinions on legal or policy matters. The deliberative process privilege is thought to prevent injury to the quality of agency decisions. Such protection encourages frank discussion of policy matters, prevents premature disclosure of proposed policies, and avoids public confusion that may result from disclosure of rationales that were not ultimately grounds for agency action."

REFERENCES:

Center for Biological Diversity v. Office of Management & Budget, 546 F. Supp. 2d 722 (2008)

Wolfson v. US, 672 F. Supp. 2d 20 (United States District Court, District of Columbia, 2009)

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