Chapter §14.4 Deliberative Process Privilege

• Jurisdiction: Washington

§14.4 DELIBERATIVE PROCESS PRIVILEGE

A cousin to the work product and attorney-client privileges is the deliberative process privilege. RCW 42.56.280 exempts "preliminary drafts, notes, recommendations, and intra-agency memorandums in which opinions are expressed or policies formulated or recommended ... except that a specific record is not exempt when publicly cited by an agency in connection with any agency action."

The privilege is intended to protect the quality of government decisions. F.T.C. v. Warner Commc'ns, Inc., 742 F.2d 1156, 1161 (9th Cir. 1984). The purpose for this exemption is to permit frank and uninhibited discussion during the decision-making process. West v. Port of Olympia, 146 Wn.App. 108,192 P.3d 926 (2008), review denied, 165 Wn.2d 1050 (2009).

West involved a request for records relating to lease negotiations between a major industrial client and the port. 146 Wn.App. at 112. The court in West held that once the port executed a lease with a tenant, documents reflecting policies or recommendations pertaining to that lease no longer fell within the ambit of the deliberative process exemption from disclosure, even if public disclosure might adversely impact the port's ability to get the "best deal" in future negotiations with other tenants. 146 Wn.App. at 118. The protection afforded by this exemption extends only until the policies or recommendations contained in the requested documents have been implemented. Brouillet v. Cowles Publ'g Co., 114 Wn.2d 788, 800, 791 P.2d 526 (1990). Further, this privilege does not protect raw factual data in the record that is not subject to further deliberation and consideration. Hearst Corp. v. Hoppe, 90 Wn.2d 123, 134, 580 P.2d 246 (1978); West, 146 Wn.App. at 117.

The Supreme Court set the criteria for the deliberative process privilege in Progressive Animal Welfare Society v. University of Washington (PAWS II), 125 Wn.2d 243, 256, 884 P.2d 592 (1994).

In order to rely on this exemption, an agency must show that the records contain predecisional opinions or recommendations of subordinates expressed as part of a deliberative process; that disclosure would be injurious to the deliberative or consultative function of the process; that disclosure would inhibit the flow of recommendations, observations, and opinions; and finally, that the materials covered by the exemption reflect policy recommendations and opinions and not the raw factual data on which a decision is based.

Id. (citin...