FOIA Update: Policy Guidance: When to Assert the Deliberative Privilege Under FOIA Exemption Five

January 1, 1979

FOIA Update
Vol. I, No. 1
1979

Policy Guidance


When to Assert the Deliberative Privilege Under FOIA Exemption Five

The U.S. Department of Justice's Office of Information Law and Policy (OILP) provided new policy guidance to all federal agencies on FOIA Exemption Five, 5 U.S.C. §552(b)(5), in a memorandum dated June 6, 1979. The full memorandum also appears in 38 F.B.A. Journal Numbers 2-4 (Fall, 1979) as an article by Robert L. Saloschin. The following is a summary of the nine-page memorandum.

The Deliberative Privilege

One of the basic principles of the Freedom of Information Act is that an exemption in the Act is merely an option to deny access, not a prohibition against release. FOIA Exemption Five covers internal communications in the Executive Branch that are legally "privileged." The most commonly encountered privilege under Exemption 5 is the "deliberative" privilege, which covers "predecisional" materials written as part of the decisionmaking process in federal agencies.

A frequently encountered and often puzzling question in acting on FOIA requests is whether to grant or deny access to "deliberative" materials. The large volume of litigation involving the deliberative privilege has highlighted the policy question whether agencies use this privilege too often. Where material may legally be withheld under the deliberative privilege of Exemption 5, agencies should always consider whether as a matter of policy it should be withheld or released.

Arguments for the Privilege

Deliberation means thoughtful review of various views on an issue. The main policy reason in favor of the deliberative privilege is to avoid chilling and distorting the candid discussion needed for optimum decisionmaking inside government agencies. Although there has been much dispute about the importance of protecting full and frank internal debate, many would agree that there are situations where such protection is important.

In addition, if the material is legal advice, protection may encourage government officials to seek the views of government lawyers on the letter and spirit of the law.

Arguments Against the Privilege

On the other hand, a major policy expression against a privilege for deliberation was recently stated by Congress in the Government in the Sunshine Act: "It is hereby declared to be the policy of the United States that the public is entitled to the fullest practicable information regarding the decisionmaking processes of the Federal Government." (Section 2 of Pub. L. 94-409, September 13, 1976, 5 U.S.C. §552b note.) Of course the Sunshine Act provides for open meetings of multi-member agencies and does not control access to agency records.

On May 5, 1977, then Attorney General Griffin Bell wrote the heads of all federal departments and agencies, expressing concern over the volume of FOIA litigation. He announced four criteria which the Department would consider in consulting with agencies and in determining whether to defend agency denials in court. The third criterion, "whether there is a sufficient prospect of actual harm to legitimate public or private interests if access to the requested records were to be granted," was primarily aimed at the unnecessary use of Exemption 5. (Emphasis added.) During the two years since this "harm" criterion was established, the Justice Department's Freedom of Information Committee has often considered its application to various records in agencies. In most cases, the basic problem is to decide whether the claim of risk to the decisionmaking process if the document is released is serious, or whether such risk is remote or imaginary.

Criteria for Asserting the Privilege

To decide how to handle difficult cases, it often helps to start with easy ones. To illustrate, an easy hypothetical case at the "remote risk" end of the spectrum would be a 25 year old memorandum recommending an increase from 6 to 8 months between cleanings of agency typewriters. Almost as easy, but at the other end of the spectrum, would be a current staff memorandum recommending a position to be taken on highly controversial issues such as funding abortions for poor women.

Unfortunately, only a minor fraction of the deliberative records in federal files fall at the ends of the spectrum, where the risk of a chilling effect from release is either obvious or remote. Generally, no simple rule or test exists to measure the probable harm to an organization's decisionmaking processes from the release of deliberative records. The question of harm is a matter of executive judgment.

The primary factors to enhance the accuracy of an executive's estimate of the prospects of harm are his or her common sense and good judgment, along with enough experience in decisionmaking processes to be familiar with the range of motivations and practices of executives and advisors functioning in organizations. Still, judgment may be difficult. The following twelve special factors should serve to stimulate and to make more effective the application of common sense, good judgment, and experience.

Checklist on Use of the Privilege

1. WHAT TYPE OF ADVICE IS INVOLVED?
For example, there is a traditional expectation of and reliance on confidentiality for legal advice as compared to advice on how an agency should proceed to reduce vibration in mechanical equipment.

2. WHAT IS THE PROGRAM OR ACTIVITY IN WHICH THE ADVICE AND THE DECISIONMAKING WILL OCCUR?
For example, there may be much less need to protect advice on formulating terms of an invitation to bid on standard articles than advice on whether to launch certain enforcement investigations or to change funding for agency programs.

3. WHAT IS THE DECISIONMAKING PROCEDURE OR METHODOLOGY?
A decisionmaking process that relies chiefly on input from persons who are peers of the decisionmaker or who are essentially independent may have less need for protection than where reliance is chiefly on the decisionmaker's own deputies or immediate assistants.

4. HOW OLD IS THE RECORD IN QUESTION?
Obviously, the greater its age, the more likely that its release would not have a significant chilling effect. However, no set period exists. Releases on subjects of a continuing (or cyclically) inflammatory nature have a potential even decades later for creating harm, especially if public attitudes have changed.

5. WHAT IS THE STATUS OF THE DECISION?
Before final decisions are made, disclosure of deliberations may lead to pressures upon or harassment of the advisors or the decisionmaker. But even decisions that are technically closed may be reopened, or may involve factors similar to those in a continuing series of decisions.

6. WHAT IS THE STATUS OF THE PERSONNEL?
How vulnerable is the career situation of the author and addressee of the deliberative communication? Are they dead, retired, or otherwise free of career concerns; or are they untenured, unestablished or otherwise concerned with security or advancement?

7. IS THERE REASON TO EXPECT A "WARMING" EFFECT?
The risk of a chilling effect is minimized if the author or recipient would actually welcome release, for example, to obtain desired publicity for themselves or for the views expressed.

8. ARE THE ISSUES INFLAMMATORY?
As previously discussed, this factor means a greater risk that release would have a chilling effect than if the issues were equally important but dull.

9. ARE POWERFUL PRESSURES LIKELY?
If there are organized groups or major financial or political forces that seek to influence, reward, or punish decisionmakers and advisors, this enhances the risk that release of deliberative matter would have a chilling effect.

10. IS THERE AN UNDUE RISK THAT THE DELIBERATIVE COMMUNICATION WILL BE DISTORTED OR MISUNDERSTOOD?
If so, the risk of a chilling effect may be increased. For example, if a deliberative communication on a complicated technical subject contains one aspect that is striking or sensational, release might lead to distorted reports with a prospect of harm to agency programs or individuals.

11. IS THERE AN UNUSUAL "TRACK RECORD" FOR THE PARTICULAR KIND OF DECISIONMAKING?
It might be so highly successful (or highly unsuccessful) as to suggest that changing the protection for deliberations leading to such decisions would (or would not) involve much risk of harm. If decisions in a certain program have been strikingly successful, changes in the process for reaching such decisions may involve a risk of harm; if the decisions have uniformly been bad, changes in the process for making them would seem to involve little risk.

12. WILL RELEASE OF PARTICULAR DELIBERATIVE MATTER IMPAIR AGENCY FUNCTIONS BY DISCLOSING AGENCY STRATEGIES OR WEAKNESSES?
This factor is most likely to be present where the agency decision will involve a clash of interests between the agency and others, as in litigation or negotiation.

Conclusion

A judgment of "no substantial risk" to agency decisionmaking processes removes the ordinary justification for invoking Exemption 5's deliberative privilege. But the opposite judgment that there is such a risk is not necessarily conclusive for withholding the document. An agency is free to conclude that there is a public interest in disclosure which overrides the risk of harm to the processes involved.

Impact of Federal Open Market Committee v. Merrill

NOTE: On June 28, 1979, the Supreme Court decided Federal Open Market Committee, Etc. v. Merrill, 99 S. Ct. 2800 (1979). The Court held that while (b)(5) does not incorporate every privilege enjoyed by the Government in civil discovery, it does incorporate the qualified privilege in Rule 26(c)(7) of the Federal Rules of Civil Procedure. This rule provides that a district court "for good cause shown" may order "that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way". After discussing the legislative history of (b)(5), it held that this exemption "incorporates a qualified privilege for confidential commercial information, at least to the extent that this information is generated by the Government itself in the process leading up to awarding a contract". This privilege expires, however, "as soon as the contract is awarded or the offer withdrawn".

This decision will be discussed in more detail in a later issue.

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