Deliberative Process Privilege


 * This article is part of a series on Exemptions
 * This article is part of a series on Exemption 5

Introduction
The deliberative process privilege is one of the privileges incorporated by Exemption 5 of FOIA. It protects “documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” The exemption is intended to preserve the quality of agency decisions by “encourage[ing] open, frank discussions on matters of policy,” “protect[ing] against premature disclosure of proposed policies before they are finally adopted,” and “protect[ing] against public confusion that might result from disclosure of reasons and rationale that were not, in fact, ultimately the grounds for an agency's action.”

Applicability
An agency withholding records under this privilege has the burden of proving that the materials are both “predecisional and deliberative.” Additionally, under the 2016 amendments to FOIA, the records must be less than 25 years old to qualify for the deliberative process privilege.

Predecisional
The deliberative process privilege only applies to records that are predecisional--records "prepared in order to assist an agency decisionmaker in arriving at his decision.” The privilege does not protect records comprising “final opinions” of an agency — those documents that “explain agency action already” taken, “an agency decision already made,” or an agency’s “final disposition[]” of a matter.

The U.S. Supreme Court has clarified that satisfying the “predecisional” requirement does not “turn[] on the ability of an agency to identify a specific decision in connection with which a memorandum is prepared.” However, some circuits have required agencies to identify a specific decision to which a document relates before finding it to be predecisional.

For example, one court held that the Federal Aviation Administration could not claim the deliberative process privilege to withhold an email from a private party to an FAA employee because the agency’s descriptions of its contents did not enable the court “to determine whether the email predated any sort of contemplated agency decision or action.” Since the court could only discern that “the redactions concern a subordinate’s account of past events to his superior,” and the agency did not “identif[y] a decision that correlates to the document,” the court held that the agency failed to meet its burden to show the document was predecisional.

Moreover, “even if the document is predecisional at the time it is prepared, it can lose that status if it is adopted, formally or informally, as the agency position on an issue or is used by the agency in its dealings with the public.” For example, a court held that an agency could no longer withhold documents under this privilege once it incorporated them by reference in non-exempt memoranda, reasoning that — where an employee’s policy suggestions have been adopted as part of an agency’s final opinion — this would likely encourage, not discourage, the employee to contribute to the decision-making process.

The identities and the respective positions of the senders and recipients of documents may also have a bearing on whether a record is predecisional. As one court explained, “the identity and position of the author and any recipients of the document, along with the place of those persons within the decisional hierarchy” is a relevant factor in evaluating the application of this privilege. On that basis, a court held the Central Intelligence Agency should not have redacted the author and recipient’s names from a partially released document, as “a document from a subordinate to a superior official is more likely to be predecisional, while a document moving in the opposite direction is more likely to contain instructions to staff explaining the reasons for a decision already made.”

Another factor is whether the person or office that issued the document lacks “legal authority” to make a final decision on the relevant matter, as in such cases, a document from that source is more likely to be predecisional. For example, the U.S. Supreme Court held that reports provided to the Renegotiation Board by regional boards were predecisional where the boards “could investigate and recommend” action to the Board with respect to excess profits earned by government contractors, “but only the Board could decide” which action to take. The regional board’s recommendations had “no legal weight whatsoever before the Board.”

However, in examining “the division of authority,” courts “look[] beneath formal lines of authority to the reality of the decisionmaking process in question.” For example, after looking closely at the decision-making process in one case, a court rejected the contention that an agency’s chief counsel lacked authority to make binding decisions merely because agency officials were “not required to solicit the Chief Counsel’s views before arriving at a decision.” As the court explained, the chief counsel’s opinions were not predecisional because the chief counsel had the authority to decide questions of agency officials’ interpretations of certain laws, and agency action that relied on statutory interpretation had to “receive legal clearance from” him/her.

Deliberative
A document is deliberative only when it “makes recommendations or expresses opinions on legal or policy matters.” It must be part of the “give-and-take” of the agency’s decision-making process. For that reason, records are “deliberative” only when they “reflect the personal opinions of the writer rather than the policy of the agency.” One relevant consideration is “whether the document is recommendatory in nature or is a draft of what will become a final document.”

Purely factual material "that does not reveal the deliberative process is not protected by this exemption.” For example, a court rejected as “tenuous” an agency’s claim of privilege for the raw data underlying a study of goshawk nests on the basis that its release “might result in humans disturbing nesting goshawks which might affect or even invalidate [the] study which might ultimately affect the management decisions of the Forest Service.” The court held that since the requested data was not “a recommendation,” “subject to alteration on further review,” or “selective” facts, it did not “expose the deliberative process.” Similarly, another court held that documents containing “no more than summaries or graphical representations of purely statistical data” were not “deliberative” for Exemption 5 purposes.

Nonetheless, factual material may be withheld under Exemption 5 where “it reflects an ‘exercise of discretion and judgment calls’” — that is, where “the selection or organization of facts is part of an agency’s deliberative process.” For example, the U.S. Court of Appeals for the District of Columbia Circuit upheld an Exemption 5 withholding for factual summaries where the material sought was “‘culled. . . from the much larger universe of facts presented to [the agency]’ and reflect[ed] an ‘exercise of judgment as to what issues are most relevant to the pre-decisional findings and recommendations.’” However, in another case, a court ordered an agency to release the “statements of fact” contained in a report that were severable from “conclusions, recommendations, or opinions.”

Other factors courts assess in the context of the deliberative process privilege include “whether the document is so candid or personal in nature that public disclosure is likely in the future to stifle honest and frank communication within the agency” and “whether the document is deliberative in nature, weighing the pros and cons of agency adoption of one viewpoint or another.”

Executive/Presidential Communications Privilege
The “executive privilege” — also called the “presidential communications privilege” — is a subset of the deliberative process privilege, and applies to records upon which the President and his advisors rely. This privilege is designed to “preserve[] the President’s ability to obtain candid and informed opinions from his advisors and to make decisions confidentially.” This privilege applies only to “communications ‘in performance of [a President's] responsibilities,’ ‘of his office,’ and made ‘in the process of shaping policies and making decisions.’”

The privilege only applies to materials “‘solicited and received’ by the President or his immediate White House advisors.” For example, one court declined to extend the privilege to internal Department of Justice documents related to applications for presidential pardons. Since the documents were prepared by agency officials in developing the Deputy Attorney General’s pardon-related recommendations for the president, but were not actually “submitted for Presidential consideration,” the court ruled the privilege did not apply. The court reasoned that to extend the privilege to “[c]ommunications never received by the President or his Office” would not further the purpose of the privilege, which is to protect the confidentiality of the President’s decision making and encourage candor in the President’s advisors.

The privilege also only applies to “communications.” For example, a court held that White House visitor logs were not covered by the privilege because “the presidential communications privilege protects only communications,” rather than the “bits of information contained in the sought records.”

25 Year Sunset
The 2016 amendments to FOIA placed a 25 year sunset on the deliberative process privilege. The amendments state that "the deliberative process privilege shall not apply to records created 25 years or more before the date on which the records were requested[.]"

Records not predecisional
If an agency is seeking to withhold records that describe a final decision or action, a requester can argue that it is not “predecisional,” and therefore is not protected by this privilege. A requester should examine the administrative process of the agency and the role the records plays within that process. Whether this privilege applies is “dependent upon” such factors.

A requester should carefully examine the circumstances surrounding the creation and exchange of the document, as well as its content. It is always important to assess whether a document is created as a matter of routine — independent of any particular legal or policy matter — and whether the document relates to any particular specific decision. The more routine or “independent” a document is, the greater chance the requester can argue that it does not reflect an agency’s “deliberative process.” A requester can also assess whether the document is intended to be an official, final statement regarding a particular event or process and how it is used thereafter by the agency. If it is designed to set forth ultimate conclusions or facts, it likely cannot be deemed predecisional.

Agency talking points have generally been treated as inherently predecisional because even though talking points are vetted by agency personnel and could be argued to represent the agency's final position on an issue, courts generally treat the "final decision" as the ultimate choice of words by the speaker, rendering the talking points the speaker consulted predecisional. However, a recent opinion from the U.S. District Court of the District of Columbia came to a different conclusion, enabling requesters to challenge the withholding of talking points under the deliberative process privilege. "“[T]alking points that are shared with agency decisionmakers for actual use in making a public statement are disqualified from exemption because they have become final rather than deliberative. The version of a set of talking points that is given by staff to an agency head or other senior official in preparation for an upcoming public communication has been thoroughly vetted by agency staff and is considered ready for use by that individual in actually communicating with the public . . . . A talking-points document that is attached to a calendar entry for an event at which an official is expected to speak . . . presumptively reflects the agency's final decision as to what information to share and how to share it.'"

Risk of Public Confusion
When an agency claims that disclosure of drafts will lead to confusion of the public—one of the bases for withholding records under the deliberative process privilege, alongside protecting against potential chilling effects flowing from disclosure—the agency may not be able to invoke that argument when the records at issue are "clearly" drafts; as stated recently by one DDC court, "[the agency] has failed to provide more than speculation that disclosure of the drafts would cause public confusion . . . . Because these documents have at least some markings that indicate they are drafts, it is unlikely that they would be mistaken for final agency policy."

Secret Law
A requester may argue that the materials sought cannot be withheld under the deliberative process privilege because they would constitute “secret law” within the agency. “Secret law” consists of materials the agency uses “in the discharge of its regulatory duties and in its dealings with the public,” but attempts to keep “hidden behind a veil of privilege because it is not designated as ‘formal,’ ‘binding,’ or ‘final.’”

For example, a court ruled that written opinions issued by the Chief Counsel of the Maritime Administration were “secret law” where the opinions were authoritative in practice and guided the agency’s rulings. The court noted that the opinions “contain[ed] no hint that they [were] anything but final,” as they were “not cast as suggestions or recommendations” and “d[id] not invite a response from the requesting official.”