What is the ‘deliberative process’ privilege? And why is it used so often to deny FOIA requests?

This is Part 1 of a two-part series on FOIA’s deliberative process privilege. Click here to read Part 2, a Q&A about the privilege. 

Update (Aug. 24, 2020): On Aug. 21, 2020, the U.S. Court of Appeals for the D.C. Circuit issued its opinion in Machado Amadis v. Department of Justice, affirming the district court’s decision in favor of the federal agencies. The Court’s decision only briefly touched on the Freedom of Information Act’s foreseeable harm standard, holding that, in this specific case, the Department of Justice was justified in withholding records under the provision.

In January, the U.S. Court of Appeals for the District of Columbia Circuit heard oral arguments in a case concerning the application of the “deliberative process” privilege of the federal Freedom of Information Act, a provision of the law that has long been criticized as a catch-all exemption for denying public records requests.

The case, Machado Amadis v. Department of Justice, has yet to be decided. But it represents one of the first opportunities for a federal appellate court to interpret amendments Congress made to FOIA in 2016, specifically what’s known as the “foreseeable harm standard,” which lawmakers intended, in part, to curtail the use of the deliberative process privilege.

The case came about in 2016, when Juan Luciano Machado Amadis, a non-U.S. citizen, submitted multiple FOIA requests for documents related to his visa application. Documents from one of his requests were redacted by the U.S. Department of Justice, which cited the deliberative process privilege as the basis for the redactions.

Amadis filed a lawsuit against the Justice Department and the U.S. Department of State in the U.S. District Court for the District of Columbia, contending that agencies within both departments did not conduct adequate record searches and that the Justice Department improperly withheld records by relying, in part, on the deliberative process privilege.

He ultimately appealed to the D.C. Circuit, where the Reporters Committee and 36 media organizations filed a friend-of-the-court brief in support of Amadis. In the brief, the Reporters Committee addressed the history of abuse of the deliberative process privilege, arguing that Amadis’ case is not the first time that the exemption has been used to fortify a culture of government secrecy.

FOIA and the deliberative process

The Freedom of Information Act, signed into law in 1966, provides the public access to records of executive branch agencies. While Congress passed the law in an effort to promote transparency in the federal government, lawmakers concluded that agencies should have discretion to withhold certain types of information under the law.

That’s why FOIA contains nine exemptions that can be employed by government agencies to deny or redact requested public records. The exemptions shield a variety of records, including classified information, certain law enforcement records, and certain personnel and medical files.

Exemption 5 specifically protects from disclosure privileged communications within or between government agencies. The exemption recognizes the deliberative process privilege, which shields inter- or intra-departmental records that are predecisional and deliberative, as a way to “encourage open, frank discussions on matters of policy.”

In fiscal year 2019, federal agencies cited Exemption 5 more than 74,000 times, according to federal government data. That’s the highest number of citations since fiscal year 2013, when the exemption was invoked more than 81,000 times.

Use and abuse

The deliberative process privilege is widely considered to be one of the most abused bases for denying access to information. Among transparency advocates and members of the press, it has become known as the “withhold it because you want to” privilege, reflecting how government agencies have used it to dodge disclosing embarrassing or politically inconvenient records.

Overuse of the deliberative process privilege has proven extraordinarily frustrating for reporters who rely on FOIA for newsgathering and increasingly find themselves disillusioned by improper use of exemptions.

In February, the Project on Government Oversight conducted an analysis in which they compared the same records obtained by different organizations using FOIA requests. The nonprofit found that in many instances, records acquired by one organization contained different levels of redaction than the same records acquired by another. In every instance cited by the analysis, Exemption 5 was invoked to redact information from one records request, but not in another.

For example, POGO did a side-by-side comparison of records obtained by POGO and records obtained by National Public Radio during similar investigations into immigrant detention centers. While the records provided in response to POGO’s request were largely redacted under Exemption 5, the exact same records were provided in full to NPR, suggesting an arbitrary application of Exemption 5 in responding to POGO’s request.

In January, Anne Weismann, chief FOIA counsel for Citizens for Responsibility and Ethics in Washington, published an article for Just Security detailing the experience of trying to acquire records via FOIA to report on President Trump’s halt on aid to Ukraine. According to Weismann, Just Security obtained unredacted emails from the Pentagon that contained troubling information regarding the freeze on aid. Weeks earlier, The Center for Public Integrity, a nonprofit investigative journalism organization, had received the same emails in response to its own FOIA request, however the emails had been heavily redacted under Exemption 5.

“The unredacted versions newly obtained by Just Security … suggest the government invoked Exemption 5 not to protect an internal deliberative process, but to keep from the public compelling evidence of the president’s misconduct and abuse of power and the complicity of administration officials in his actions,” Weismann wrote.

FOIA Improvement Act of 2016

Congress began holding hearings in 2014 to address how frequently agencies withheld records under FOIA exemptions. And in early 2016, Rep. Jason Chaffetz (R-Utah), chairman of the Committee on Oversight and Government Reform, filed a report titled “FOIA is Broken,” which reported that agencies had been overusing and misapplying exemptions.

Later that same year, Congress passed the FOIA Improvement Act of 2016. One of the law’s main goals was to reduce the use of exemptions, especially the deliberative process privilege.

“The deliberative process privilege has become the legal vehicle by which agencies continue to withhold information about government operations,” a House report about the bill stated.

The FOIA Improvement Act changed the application of the deliberative process privilege in two ways. First, it created what is known as the “foreseeable harm” standard. This provision states that an agency can withhold information under the deliberative process privilege, as well as the other discretionary exemptions, only if the agency can “reasonably foresee that disclosure would harm an interest protected by the exemption.” Moreover, the agency must consider if partial documents could be released without causing harm, and take reasonable steps to do so.

The foreseeable harm standard heightens the government’s burden for denying the public access to records. On top of proving that the information requested falls within an exemption, agencies must now clear an additional hurdle by showing that release of the records would be harmful to an interest protected under that exemption.

The second provision under the FOIA Improvement Act was a 25-year sunset on use of the privilege, meaning that records created 25 years or more before the date requested are not protected by the deliberative process privilege.

These and the other 2016 amendments to FOIA were enacted to help fight government secrecy. After being signed into law, they are now left for agencies to employ and the courts to interpret.

The foreseeable harm standard goes to court

And that’s exactly what’s happening now in the case of Machado Amadis v. Department of Justice.

The foreseeable harm standard became the centerpiece of the Reporters Committee’s involvement in the case. In their friend-of-the-court brief, Reporters Committee attorneys encouraged the court to rigorously apply the foreseeable harm standard and to require that the Justice Department sufficiently demonstrate how each record would harm the interest of the deliberative process privilege.

In January, Reporters Committee Legal Director Katie Townsend participated in oral arguments in the Amadis case on behalf of media organizations that have an interest in public access. In her arguments, she commented on the significance of the foreseeable harm standard as it relates to the deliberative process privilege.

“The foreseeable harm provision that was added to the act in 2016 is, I feel comfortable saying, the most consequential change to FOIA in decades,” Townsend said.

This is the D.C. Circuit’s first opportunity to rule on the foreseeable harm standard since the 2016 amendments. The court’s ruling could set a precedent for how much FOIA is actually strengthened by the amendments passed in 2016.

“Congress’s recent amendments to FOIA ‘build on what our Founding Fathers recognized hundreds of years ago: that a truly democratic system depends on an informed citizenry to hold their leaders accountable,’” Reporters Committee attorneys wrote in their friend-of-the-court brief, quoting a statement from Sen. John Cornyn (R-Texas). “This Court should ensure that the foreseeable harm standard is interpreted, applied, and enforced to effectuate that purpose.”

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.