The Government's Increasing Reliance on — And Abuse of — The Deliberative Process Evidentiary Privilege: '[T]he Last Will Be First'

This article discusses the deliberative process that government entities can invoke to deny citizens and litigants access to documents reflecting the development of public policies.The deliberative process privilege was the last major government privilege recognized by the American. The first case enunciating the doctrine is a 1958 decision of the Court of Claims. Yet, today the doctrine is the most frequently invoked government privilege; it is now the first privilege that government agencies resort to when citizens or opposing litigants want to discover documents chronicling the development of the agencies’ policies. For example, in the past two years alone the federal government has invoked the privilege to deny citizens access to information about such controversies as the D.E.A.’s Fast and Furious gun program, the government’s bailouts of the finance industry, enhanced interrogation of terrorists, and the proposed Keystone pipeline from Canada. As Part II of the enclosed article explains, since 1958 the courts have dramatically expanded the scope of the privilege. When the privilege was initially recognized the privilege, the privilege has a modest scope: Federal court applied the privilege to shield pre-decisional documents reflecting communications between government officials about policy deliberations. Today many state courts also recognize the privilege, the courts have blurred the distinction between pre- and post-decisional documents, the privilege has sometimes been applied to protect factual information as well as deliberations, and many courts now extend the privilege to certain communications between government officials and private individuals and entities. The courts have been so willing to broaden the privilege that it is no wonder that the deliberative process doctrine has become the first privilege the government usually cites as a justification to block public access to information.Part III of this article discusses the new hot button controversy over the scope of the privilege. Perhaps emboldened by the court’s past willingness to expand the doctrine, the Justice Department is now arguing that the concept of deliberations now includes government officials’ discussions about how to respond to media inquiries about and coverage of public policies. The thesis of this article is that the courts should reject the government’s attempt to extend the privilege in this manner. The article contends that if the courts embraced the government’s argument, the courts would enable the government to convert a policy tool into a political tool. The courts’ tendency to expand the privilege imperils the transparency of government policy-making, and the courts ought to refuse to take the next step currently being urged by the government.

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