Duhaime's Law Dictionary


Deliberative Process Privilege Definition:

A freedom of information exemption as regards documents or records created during and within a government agency's internal decision-making process.

Related Terms: Deliberative, Deliberative Secrecy

In Stewart v US, Justice Paul Kelly of the United States Court of Appeals gave a full explanation of the legal term deliberative process privilege:

"The Freedom of Information Act (of the USA; aka FOIA) generally requires federal agencies to disclose agency records to the public upon request, subject to nine exemptions that protect certain types of documents from disclosure. Relevant to this appeal is Exemption 5 (5 U.S.C. § 552(b)(5)), which exempts inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than the agency in litigation with the agency. To qualify under this exemption, a document must be the product of a government agency, and must fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it.

"The Supreme Court recognizes the attorney work-product and the deliberative process privileges as falling under the ambit of this exemption. Attorney work-product covers information reflecting the mental processes of counsel, while the deliberative-process privilege protects documents, such as advisory opinions, recommendations, and deliberations, that reflect how government decisions are made. The deliberative process privilege may include materials generated by agency employees as well as consultants."

In Judicial Watch v US Department of State, the State Department withheld notes taken in preparation for a congressional hearing on the basis that the notes were covered by the deliberative process privilege. Justice Richard Leon of the United States District Court, District of Columbia agreed that the notes were exempt from disclosure pursuant to the FOIA, adding:

"The deliberative process privilege protects any documents that reveal an agency's deliberative process in reaching policy decisions and notes taken by government officials, such as the notes at issue here, are often made as part of the agency's internal decision-making process. As our Court of Appeals has pointed out, notes tend to be selective and deliberative, and disclosing them would hinder government officials from debating issues internally, deter them from giving candid advice, and lower the overall quality of the government decision-making process. Although the harm of releasing the notes may be self-evident, agencies must nevertheless provide a relatively detailed justification, specifically identifying the reasons why the exemption applies to the particular part of a withheld document."

In Information Network for Responsible Mining v. Bureau of Land Management, Justice John Kane wrote of the limits of the privilege in the context of American freedom of information law:

"Exemption 5 ... encompasses documents that fall within the deliberative process privilege, which shields documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.

"Only documents that are both predecisional and deliberative fall within the scope of this privilege. The privilege does not extend to factual information contained in an otherwise deliberative agency document unless disclosure of this information would so expose the deliberative process within an agency that it must be deemed exempted.

"The purpose of the deliberative process privilege is primarily to enhance the quality of agency decisions by protecting open and frank discussion among those who make them within the Government. In the FOIA context, however, consistent with FOIA's general policy of broad disclosure, ... the deliberative process privilege is to be construed as narrowly as is consistent with efficient Government operations."

REFERENCES:

  • Information Network for Responsible Mining v. Bureau of Land Management, 611 F. Supp. 2d 1178
  • Judicial Watch, Inc. v. US Dept. of State, 650 F. Supp. 2d 28 (2009)
  • Stewart v. US Deptartment of Interior, 554 F. 3d 1236 (2009)

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