§ 7.08 GOVERNMENT PRIVILEGES—MINOR GOVERNMENT SECRETS

• Jurisdiction: North Carolina

§ 7.08 GOVERNMENT PRIVILEGES—MINOR GOVERNMENT SECRETS

[1] THE DOCTRINE

Military and state secrets are such major government secrets that the courts have granted them an absolute evidentiary privilege. There are other, lesser government secrets that also warrant a measure of protection. Like major secrets, these subjects are protected by a topical privilege. However, minor government secrets are usually subject to a merely conditional privilege; the secret is ordinarily privileged, but the party seeking discovery can defeat the ad hoc privilege by demonstrating a compelling need for the information.

Confidential Communications Within Government. The definition of a minor government secret varies from jurisdiction to jurisdiction. The federal courts have adopted a relatively narrow definition. In Ackerly v. Ley, 420 F.2d 1336, 1340 (D.C. Cir. 1969), the court referred to "the familiar doctrine that the Executive branch is privileged not to disclose intragovernmental documents reflecting advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions are formulated." The federal courts have attempted to protect the secrecy of the decision-making process. The courts reason that the ultimate government decision will be of higher quality if public officials are candid in their policy discussions and they are more likely to be candid if they know that the decision-making process is confidential. The doctrine is sometimes called the predecisional, deliberative process privilege; to be protected, the document must both reflect the deliberative process and be predecisional. To begin with, federal courts limit their minor government secret privilege to documents which are an integral part of a government decision-making process such as recommendations and drafts. In most cases, this privilege does not protect raw factual data submitted to the government if that data is reasonably segregable from the deliberative portions of the writing. Moreover, the document must be predecisional; thus, documents embodying the final government decision are discoverable—unless they amount to state or military secrets. Although the deliberative process privilege is the newest federal governmental privilege, it is now the governmental privilege asserted most frequently in federal practice.

Confidential Communications to Government. Many states use a much broader definition. Although the federal privilege is designed to promote candor within government, these states have created a more expansive privilege to facilitate the flow of information to government. In these states, a minor government secret privilege attaches if the government shows that: (1) It has a legitimate need for a certain type of information; and (2) it cannot be assured of a free flow of that type of information unless it assures confidentiality to the sources of information. A good example is a parole board. A parole board needs background information about prisoners applying for parole. The board cannot expect candid evaluation from citizens unless it assures those citizens that their letters and interviews will remain confidential.

Even if the government makes out a prima facie case for the application of the minor government secret privilege, the party seeking discovery can defeat the privilege. The party can overcome the privilege by showing an overriding need for the information...