AuthorImwinkelried, Edward J.

On his first full day in office, President Barack Obama issued a memorandum relating to the Freedom of Information Act ("FOIA"). (1) In that memorandum, President Obama stated: "A democracy requires accountability, and accountability requires transparency. As Justice Louis Brandeis wrote, 'sunlight is said to be the best of disinfectants.'" (2)

The modern era has witnessed numerous controversies that have underscored the need for transparency. During the Nixon Administration, the question arose as to whether the White House pressured the Internal Revenue Service to harass taxpayers whom the Administration regarded as "enemies." (3) In the Clinton Administration, when the Department of Defense fired Linda Tripp after she helped expose the President's affair with Monica Lewinsky, Ms. Tripp alleged that the White House had pressured the Department of Defense into terminating her in retaliation for whistleblowing. (4) During the second Bush Administration, there were serious questions about the role of the Federal Reserve Board in the bailout of the banks that had caused the Great Recession of 2008. (5) During the Obama Administration, there were claims of incompetence and misrepresentations in the Justice Department's Fast and Furious gun-running program. (6) During the Trump Administration, the question arose whether the ban on transgender individuals in military service was a product of improper political pressure without a bona fide military justification. (7)

These controversies shared several common denominators. To begin with, as the headlines of the country's leading newspapers attested at the time of each controversy, these issues were of widespread and intense public interest. (8) Next, in part because of that interest, in each controversy private parties either filed suit or submitted FOIA requests to require the federal government to reveal the records of its investigation into the alleged government misconduct. (9) Third, on each occasion and with varying degrees of success, the government asserted evidentiary privileges, notably the deliberative process doctrine, to block the public's efforts to obtain the relevant investigative records. (10)

The government's invocations of the deliberative process privilege in these cases are not isolated instances. The deliberative process doctrine is an "infant privilege. (11) Although other government privileges for military and state secrets (12) and Presidential communications have ancient lineages, the seminal American case on deliberative process privilege, Kaiser Aluminum & Chemical Corp. v. United States, (13) was not handed down until 1958. For thatmatter, Kaiser was not a decision by the Supreme Court, a court of appeals, or even a district court. Rather, (14) it was a decision by the Court of Claims. (15) However, the author of the opinion was Justice Stanley Reed, who by then had retired from the Supreme Court and was sitting by designation. (16) Before his appointment to the Court, Reed had served as Solicitor General for Franklin Delano Roosevelt. (17) As Solicitor General, he had been "an extraordinarily consistent supporter of the prerogatives of the federal executive...." (18) In part due to Justice Reed's authorship of the opinion, the privilege "caught on ... quickly...." (19) In the words of one commentator, the doctrine "spread through the federal courts like wildfire." (20) The doctrine is now "widely recognized" among state courts; (21) and approvingly citing Kaiser, (22) the Supreme Court eventually recognized the doctrine." (23) Today, it is the most frequently cited government privilege in federal court. (24) If the federal government decides to oppose a citizen's attempt to obtain records of official investigations into government misconduct, the citizen is likely to be met with an assertion of the deliberative process privilege. When the government opts to shield such materials from public scrutiny, the deliberative process privilege is its most important line of defense.

At first blush, the government's frequent, successful assertion of the privilege may seem surprising. The privilege seems at odds with the democratic value of transparency, which President Obama referred to in his FOIA memorandum. The development is even more surprising, though, in light of the fact noted in Part II of this article, namely, that there is a respectable authority for a so-called "government misconduct" exception to the deliberative process privilege. One would think that if the courts would ever uphold the value of transparency, it would be when there is a credible claim of governmental misconduct. How else can government wrongdoers be held accountable?

The thesis of this short article is that both at common law and under the Freedom of Information Act, the courts should recognize a carefully circumscribed government misconduct exception to the deliberative process privilege. Part I of the article is descriptive. Part I reviews the history of the privilege and its well-settled limits. Part I points out that there has been a clear trend to expand the scope of the privilege since its recognition in the late 1950s. Part II is also descriptive. Part II surveys the case law on the government misconduct exception. Subpart II.A notes that there is still considerable controversy over the threshold question of the existence of the exception, especially under the FOIA. Subpart II.B then identifies three splits of authority related to the scope of the exception: whether the exception applies to the underlying alleged government misconduct or rather on misconduct in the deliberations themselves; whether the misconduct must be criminal in nature; and finally, the standard of proof for triggering cither an in camera examination of the relevant records or a final order that the records be disclosed to the requesting party.

In contrast, Part III is evaluative. Subpart III.A addresses the question of whether the courts ought to recognize the exception. The subpart concludes that they should do so not only at common law but also under the FIOA. Subpart III.B then turns to the controversies over the scope of the exception. The subpart initially contends that the analytic focus ought to be on misconduct in the deliberations themselves rather than on the government misconduct being investigated. Next, analogizing to the common law doctrine of conspiracy, the subpart argues that the misconduct must be positively illegal but need not be criminal in nature. Finally, analogizing to the crime/fraud exception to the attorney-client privilege, the subpart proposes two standards of proof under the 24 exception, one for in camera examination and a second for final disclosure orders.


    There are early English cases containing broad descriptions of the "Crown privilege." (25) The language in those cases is expansive enough to extend to the material covered by the American deliberative process privilege. (26) Although one of the English decisions in point dates from the early part of the Nineteenth Century, (27) as previously stated, the landmark American decision, Kaiser Aluminum & Chemical Corp., (28) was not rendered until 1958. The Kaiser Corporation had purchased several aluminum plants from the federal government. (29) Kaiser alleged that the government had breached a provision of the purchase contract. The contract contained a "most favored purchaser" guarantee, and Kaiser contended that the government had violated the guarantee by selling comparable plants to Reynolds, a competitor in the aluminum industry, on better terms. (31) During discovery, Kaiser demanded that the government disclose certain official documents, including a memorandum written by the liquidator's special assistant. (32)

    Citing English case law, (33) Justice Reed announced that the court would recognize a common law deliberative process privilege. Justice Reed made it clear that the privilege was qualified in nature. Under the new privilege, certain types of documents would be "privileged from inspection as against public interest but not absolutely." (34) Thus, even if the government information in question falls within the scope of the common law privilege, the party seeking the information can defeat the government's privilege claim by establishing a compelling need for the information. (35)

    Justice Reed appreciated though, that qualified or not, the privilege had never previously been approved by a federal court. (36) Consequently, he realized that it was critical to articulate a convincing rationale for the novel privilege. (37) The recurring theme in his opinion was that the privilege would improve the quality of government decisions by encouraging candor and creative thinking in the decision-making process leading to the final decision. (35) He underscored that theme at several points in the opinion:

    Free and open comments on the advantages and disadvantages of a proposed course of governmental management would be adversely affected if the civil servant or executive assistant were compelled by publicity to bear the blame for errors or bad judgment[.] (39) There is a public policy involved in this claim of privilege for this advisory opinion--the policy of open, frank discussion between subordinate and chief concerning administrative action. (40) [There should be an evidentiary doctrine] "to protect free discussion of prospective [government] operations and policy." (41) [T]he very purpose of the privilege [is] the encouragement of open expression of opinion as to governmental policy[.] (42) Justice Reed's policy argument rests on two premises: (1) the quality of government decisions will be higher if government officials engage in frank, robust deliberations; and (2) absent an evidentiary privilege, government officials will be reluctant to conduct such deliberations. (43) The proponents of the privilege often...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT