RCFP Q&A tackles FOIA’s ‘deliberative process’ privilege

This is Part 2 of a two-part series on FOIA’s deliberative process privilege. Click here to read Part 1, which explores the history of the privilege and how it’s frequently abused by federal agencies. 

Yesterday, the Reporters Committee for Freedom of the Press published a deep-dive into the federal Freedom of Information Act’s “deliberative process” privilege, a provision of the law that agencies frequently cite when denying public records requests.

The piece explained how a case before the U.S. Court of Appeals for the District of Columbia Circuit represents one of the first opportunities for a federal appellate court to interpret amendments Congress made to FOIA in 2016, which lawmakers intended, in part, to curtail the use of the deliberative process privilege.

To learn more, we’re following up our analysis with a Q&A with Reporters Committee legal fellow Gunita Singh, who offers some helpful tips for journalists looking to avoid having their records requests rejected under the so-called “withhold it because you want to” privilege.

Why do agencies so routinely use the deliberative process privilege to deny FOIA requests?

In many cases, agencies invoke the deliberative process privilege in situations where they believe disclosure of the requested material could chill agency candor. In other cases, FOIA staff are confused about whether material is actually both predecisional and deliberative, which is required to qualify for the privilege.

However, we also see many instances where agencies use the deliberative process privilege to redact or withhold information that is simply embarrassing or politically inconvenient. It’s easy to use the deliberative process privilege in these sorts of situations because it doesn’t come with as high a burden as invoking Exemption 1, which protects classified information, and it’s also not subject-specific like Exemption 7, which relates to law enforcement records. So, that can lend itself to abuse, which we have definitely seen happen over the years.

What is an example of material that would fall within the scope of the deliberative process exemption? How about an example of a record that would be an inappropriate withholding under the exemption?

An example of the sort of record that may trigger the deliberative process privilege would be where an agency withholds an early, preliminary draft of a policy or proposal containing internal deliberations on how the agency should proceed, and that draft preceded the adoption of any formal agency policy. If the draft, for example, contains preliminary thoughts of agency personnel before they are in their final, fleshed-out form, courts have held that release of such material could confuse the public if the materials reflect bases for decisions not actually adopted or approved of by the agency.

Inappropriate use of the deliberative process privilege include instances where agencies simply want to withhold embarrassing, unprofessional, or incriminating information from the public. A quintessential example of this sort of improper withholding can be found here — where the State Department annotated a document in a less-than-professional manner and tried to shield it from public view using Exemption 5. This was certainly not the intended use of the deliberative process privilege.

If a journalist’s FOIA request is denied under the deliberative process privilege, what next steps can they take to challenge the denial if they feel it is an inappropriate application?

As explained in the Reporters Committee’s FOIA.Wiki, administratively appealing the agency’s adverse determination is the next step when you want to challenge an unfavorable decision with respect to your FOIA request. So, if you have encountered the deliberative process privilege and you’re not sure the agency is applying it legitimately, you can administratively appeal the agency’s use of that exemption. Note that if you eventually wish to pursue litigation against the agency, exhausting your administrative remedies is usually a necessary prerequisite. Specific strategies for trying to overcome the deliberative process privilege can be found here.

What can a FOIA requester do before submitting their request to help ensure that it is not denied under the deliberative process privilege?

It is often difficult for a requester to know what information she is seeking will be subject to one or more of FOIA’s nine exemptions. But, because of the foreseeable harm standard codified in the 2016 amendments to FOIA, a requester should remember that the agency cannot simply claim an exemption without justifying how disclosure would actually harm a protected interest.

So, as a general rule of thumb, while records shared within or among agencies that are both deliberative and predecisional may trigger the deliberative process exemption, that doesn’t mean a requester can’t ask for such records; an agency’s invocation of the deliberative process privilege, while discouraging, could potentially still be overcome through the administrative appeals process or through litigation.

That said, requesters should remember that the following generally cannot be subject to the deliberative process privilege, so it will be helpful to keep in mind for drafting future requests: (1) information of a purely factual nature (i.e., not deliberative) that may have been used in a deliberative process; and (2) information formally adopted by the agency as an official policy (because once-predecisional information loses its claim to protection when officially adopted by the agency).

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.