Stifling Gubernatorial Secrecy: Application of Executive Privilege to State Executive Officials

• Author: Matthew W. Warnock
• Position: Capital University Law School, 2007
• Pages: 983-1020

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Introduction

"Since the beginnings of our nation," opined the Circuit Court of Appeals for the District of Columbia, "executive officials have claimed a variety of privileges to resist disclosure of information the confidentiality of which they felt was crucial to fulfillment of the unique role and responsibilities of the executive branch of our government."¹ The most common of these privileges is known as executive privilege.

The concept of executive privilege was created to shield confidential, executive branch communications from disclosure. It is based upon the principle that "those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests" to the injury of the executive branch.² On the other hand, executive privilege runs contrary to the democratic principles of open government and the free flow of information. As James Madison aptly noted, "'[a] popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.'"³

Attempting to balance these competing interests, the United States Supreme Court recognized a qualified version of executive privilege in United States v. Nixon.⁴ Concluding that executive privilege is "fundamental to the operation of Government and inextricably rooted in the separation of powers,"⁵ the Court acknowledged the need to protectPage 984 some communications of the chief officer of the executive branch of governments.⁶

Executive privilege, as defined by the Nixon Court, has not been limited to federal executive branch officials. The Court's decision in Nixon was not binding on the states, but ten states have looked to the decision for guidance in applying executive privilege to governors.⁷Unfortunately, in analyzing and applying the federal law doctrine of executive privilege, state courts have produced convoluted decisions that misinterpret the fundamental differences between the two subcategories of the privilege: the chief executive communications privilege⁸ and the deliberative process privilege.⁹

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This Article seeks to clarify and redefine the distinction between the chief executive communication and deliberative process privileges and to suggest the need for consistency and uniformity in the applicability of executive privilege at the state level. Part I examines the historical background of executive privilege at the federal level. It defines and analyzes the scope of both the chief executive communications and deliberative process privileges. Part II focuses on the application of executive privilege to state executive officials, including an analysis of relevant state case law. Part III introduces a proposed solution to the lack of consistency and symmetry in executive privilege jurisprudence at the state level. By recognizing a hybrid version of the two privileges, state courts are presented with a simple standard of review that would provide uniformity among state executive privilege jurisprudence, recognize the differing concerns regarding confidentiality within the federal and state executive branches, and support the overarching goal of free and open government.

I Defining Executive Privilege: Deliberative Process Privilege Versus Chief Executive Communications Privilege

The doctrine of executive privilege has historical underpinnings dating back to the founding of the United States. Over the centuries, courts have recognized two primary categories of executive privilege: the deliberative process privilege and the chief executive communications privilege.¹⁰

A Deliberative Process Privilege

The deliberative process privilege is the most oft-cited form of executive privilege.¹¹ The premise for this privilege is that certain executive communications are "so candid or personal in nature that public disclosure is likely in the future to stifle honest and frankPage 986 communication."¹² In its simplest form, the deliberative process privilege refers to:

The common sense-common law principle that not all public business can be transacted completely in the open, that public officials are entitled to the private advice of their subordinates and to confer among themselves freely and frankly, without fear of disclosure, otherwise the advice received and the exchange of views may not be as frank and honest as the public good requires.¹³

"[U]nlike the presidential version of executive privilege, which the President has invoked in several well-publicized confrontations with Congress and the judiciary, including the Watergate controversy, the deliberative process privilege has a less glamorous past. Its major impact has been on the day-to-day functioning of . . . government[s]."¹⁴ As such, the deliberative process privilege allows government officials to "withhold documents and other materials that would reveal 'advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.'"¹⁵

The deliberative process privilege is well-grounded in the common law.¹⁶ Legal scholars have traced its roots to the centuries-old English "crown privilege," which protected "parliamentary deliberations, state secrets and papers, confidential proceedings of the Privy Council, and communications by or to public officials in the discharge of their publicPage 987 duties."¹⁷ In the United States, the Supreme Court recognized in Morgan v. United States that it "was not the function of the court to probe the mental processes" of government officials, specifically the Secretary of Agriculture.¹⁸ The principle of protecting the mental processes of government officials later was incorporated into the deliberative process privilege in Kaiser Aluminum & Chemical Corp. v. United States.¹⁹

Courts have established two substantive requirements that must be satisfied before the privilege presumptively attaches.²⁰ First, the material must be predecisional, meaning that it was created before the end of the deliberative process.²¹ Elaborating on this idea, the Supreme Court explained that this substantive requirement is supported by well-documented public policy considerations.²² Explaining the rationale behind the privilege, the Supreme Court added that there is a strong public interest in discovering the underlying basis of governmental decisionmaking.²³ Thus, the quality of decisionmaking by government officials will not be negatively affected by the disclosure of final decisions.²⁴

"Certain types of communications are more likely to be predecisional than others," such as "upstream inquiries (from subordinates to superiors)."²⁵ As time passes, communications also tend to lose their predecisional status because the potential impact on "frank, candid advice may diminish."²⁶ Furthermore, predecisional information that is explicitly or implicitly adopted in a final decision loses its privileged status.²⁷

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The second substantive requirement is that the material must be deliberative, thereby reflecting the "give-and-take of the consultative process."²⁸ This second prong requires that the material be "'a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters.'"²⁹ Accordingly, purely factual information is not privileged, unless it is "so inextricably intertwined with the deliberative sections of documents that its disclosure would inevitably reveal the government's deliberations."³⁰

In addition to these substantive requirements, the party asserting the privilege must satisfy strict procedural requirements. Because the burden of proof initially lies with the executive branch official asserting the privilege,³¹ that official must specifically designate which documents or communications fall within the parameters of the deliberative process privilege.³²

There are various means by which the party asserting the privilege can achieve such specificity. Most commonly (and often in conjunction with federal Freedom of Information requests), the federal courts use the Vaughn Index.³³ The Vaughn Index provides an itemized and detailed summary of each document claimed to be privileged,³⁴ "cross-referencedPage 989 to the relevant parts of the government's justifications for the privilege."³⁵A proper index includes a description of the author, recipient, and subject matter of the documents in question.³⁶ Additionally, the index must include an explanation of why the document is privileged, including the role it played in the deliberative process.³⁷ Finally, if the document contains nonredactable factual information, "the index should state the existence of that material and explain why it is not segregable."³⁸

In addition to the Vaughn Index, courts often require the filing of affidavits by the executive official or agency invoking the privilege.³⁹ An appropriate affidavit would include information from the Vaughn Index as well as an explanation of why disclosure would be harmful.⁴⁰

Once the substantive and procedural requirements are satisfied, a presumptive, qualified...