Taking this thread one step further, I would like to suggest that the FOIA deliberative process privilege be abolished or, at the very least, severely restricted. On the federal level, the privilege is perhaps the most commonly abused exemption in FOIA and is used as an all-purpose excuse for covering up a litany of bureaucratic embarrassments.
The Supreme Court has ruled -- wrongly in my opinion -- that the core purpose of FOIA is to "shed light on government activities and operations." In the Washington access community we have always joked that the Reporters Committee decision closed off access to most records unless they shed light on government operations and activities, and all that information is already protected under the deliberative process privilege.
Exemption 5 of FOIA allows an agency to withhold records that are "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." No one really knows what that means, but what it has come to mean is that basic common-law privileges -- such as attorney-client and attorney work product and other privileges that are reasonably well-recognized -- are applicable through Exemption 5. For example, the Supreme Court accepted that a privilege covering witness statements in airplane crashes was sufficiently well-grounded in case law to be used as an Exemption 5 privilege.
The deliberative process is available only to governments. On the federal level it is sometimes called executive privilege, although there may be some subtle differences between those two terms. A number of state courts don't recognize the privilege; former Massachusetts Gov. Michael Dukakis was mighty upset when his open records attorneys told him there was no deliberative process privilege recognized in the state.
The privilege is meant to protect the "candid and frank discussions" of government employees and prevents them from being second-guessed constantly by interested outside parties. To qualify for the privilege, records must be both predecisional (they must precede a final decision) and deliberative (they must be opinions or recommendations).
Once an agency makes a final decision, the privilege is waived for the decision itself and any records directly relied upon in making the decision. But if an agency considered more than one alternative, the rejected alternatives are still protected. The privilege is also sometimes claimed by agencies because disclosure of draft records might "confuse" the public about the agency's actions. That sort of a response is at best extremely paternalistic and is often rejected by courts.
My problem with the deliberative process is that it is self-serving, protects most of the records which really reveal the process of government, and is invoked often as a knee-jerk reaction to a request. It is hard to fathom that a competent government employee would be so embarrassed or upset that his or her analytical work was disclosed to the public that it would cause that employee to be less candid in the future. It is difficult to believe that most staff members are so unsure of what they have to say, or so timid about expressing themselves, that public disclosure would force the process of government to grind to a halt.
I had a personal experience with the deliberative process that I find a good illustration of its misuse. I once requested a Justice Department report prepared by an agency attorney. The report analyzed the effects of a series of proposed changes to FOIA on previous disclosures of records which had been used as the basis for news stories.
A Justice Department official testified before Congress that the report had found that only a few of the disclosures would have been adversely affected by the newly proposed amendments. The Justice Department disclosed the report to me, releasing the factual material concerning the press stories, but excising all the analytical material, or about half of the entire report. I sued, and persuaded U.S. District Judge Harold Greene that the report was nothing more than the application of a set of standards to a collection of facts, and was neither predecisional nor deliberative. The government appealed the case, and a panel of the U.S. Court of Appeals for the District of Columbia Circuit, which included such luminaries as Clarence Thomas and Abner Mikva, ruled that the report was indeed predecisional and deliberative.
Several years later when the Clinton administration introduced a more friendly approach to FOIA, I requested the report again. This time the Justice Department, pointedly exercising its discretion, disclosed the entire report. I appreciated the change in attitude, but when I leafed through the report I wondered why in the world we had wasted so much time litigating over it. The information originally deleted was cut-and-dry legal analysis. This is certainly no criticism of the attorney who prepared it, but it was not a scintillating novel approach to the law. The attorney was not expressing any "candor" or "frank discussion." It was as routine as one could possibly imagine. No secrets, no nothing.
I suspect that report was typical of much of the information withheld under the deliberative process privilege. There certainly may be times when agencies should temporarily safeguard their deliberations, such as during the award of a contract. But the watchword should always be "temporary" and agencies should never use the deliberative process privilege to continue to withhold records of government decision-making -- whether those recommendations were accepted or not -- from the public.
The government works for the public, not against the public. Unlike the private sector, where decisions are made for the ultimate benefit of the company or institution, decisions made by government are made for the public, not for bureaucrats. No matter how well-entrenched the deliberative process may be in traditional law, the continued use of the privilege to prevent the public from learning more about the process by which government works is nothing more than arrogance on the part of government agencies. To allow the public to know only what the agency decided is not enough. The public should be able to learn what alternatives were considered, why those alternatives were rejected, and how the final decision was made. Without access to that information, government decision-making will continue to be an unsolved mystery.
In a democratic society that believes in access to government records, such a gap in the public record should not be fostered by government itself.
Harry Hammitt is editor/publisher of Access Reports, a newsletter published in Lynchburg, Va., covering open government laws and information policy issues. E-mail: <75111.743@ compuserve.com>.
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