The deliberative process exemption of FOIA

One exemption to the Freedom of Information Act (FOIA) is the deliberative process exemption. Matter relating to the “deliberative processes” of government can be exempt from public records disclosure.

Deliberative processes include opinions or recommendations in the course of making decisions that apply to official government functions (like policy or legislation). To qualify for the privilege, records must be both predecisional (they must precede a final decision) and deliberative (they must be opinions or recommendations). Things like processing forms and paying accounts, purely procedural, administrative processes of an agency, are not part of its deliberative processes.

The privilege is meant to protect the “candid and frank discussions” of government employees and prevents them from being second-guessed constantly by interested outside parties. The privilege is also sometimes claimed to avoid confusing the public about the way a decision was reached.

While the justifications for having the exemption seem justified, it is considered on of the most often abused FOIA exemptions. Government Technology, a magazine on government best practices, saw the exemption in 1996 as “self-serving, [protecting] most of the records which really reveal the process of government, and [...] invoked often as a knee-jerk reaction to a request.”

But that article has more than a problem with the application of the exemption. The justifications for it are on shaky ground:

It is hard to fathom that a competent government employee would be so embarrassed or upset that his or her analytical work was disclosed to the public that it would cause that employee to be less candid in the future. It is difficult to believe that most staff members are so unsure of what they have to say, or so timid about expressing themselves, that public disclosure would force the process of government to grind to a halt.

The author of that article requested a Justice Department report on proposed changes to FOIA, and after several legal battles, he was granted the file. With half of the pages redacted. The reason? Deliberative process exemption. He tried requesting again under the Clinton administration, a more FOIA-friendly organization, and was granted the full report. After reading through it, the author was confused:

When I leafed through the report I wondered why in the world we had wasted so much time litigating over it. The information originally deleted was cut-and-dry legal analysis. This is certainly no criticism of the attorney who prepared it, but it was not a scintillating novel approach to the law. The attorney was not expressing any “candor” or “frank discussion.” It was as routine as one could possibly imagine. No secrets, no nothing.

This anecdotal experience certainly justifies the belief that using deliberative process as ground for an exemption is a knee-jerk reaction when governments get an information request.

When is this exemption justified? I’d love to hear from you about cases you’ve been involved with or have followed where there was a need to keep deliberative, decisional information private. Let me know or join Sunshine Review and WikiFOIA on Twitter this Friday from 2-3 EST at #FOIAchat, our weekly chat on public records and open meetings issues. On Friday, we’ll be talking about the deliberative process exemption specifically, so come share your thoughts or join us to learn more about it.

Montana county stays transparent, but not without a fight

Citizens in Montana have had a hard time getting public information, but at least the courts are on their side.

A Billings Gazette reporter had requested in January to see a complaint that had been filed against a county elected official. The complaint prompted the Yellowstone County Commission to hire an independent investigator at taxpayer expense. The reporter’s request was for a copy of the complaint and investigation report, which didn’t identify the complaining party or other private citizens.

District Judge Susan Watters reaffirmed legal precedent by ordering Yellowstone County to produce the requested public documents, saying:

“It is the county’s responsibility to go through the documents and determine what can be released. I believe the county failed to complete their duty that was required of them when the request was made to release the documents.”

Billings Gazette was justifiably annoyed by the whole situation, with an editorial writer stating:

The law doesn’t say that citizens have to wait to see public documents until a court reviews them or wait till a government attorney reviews them. It doesn’t say that citizens have to file written requests or forms. The law says that public officials who have custody of the document are to make it available to the public.

The Gazette notes that the denial could not have been due to privacy concerns, since the newspaper asked for copies of documents that had been redacted to remove the complaining party’s identification. The conclusion, then, is that the government just wanted to withold information because it could.

It is absolutely too much hassle to have to sue the county for information it should be disclosing on its own. The implications are great: a reporter, working for a newspaper, has the resources and the motivation to pursue information until he or she gets it. But sunshine laws exist for regular citizens, too, not just full-time sleuths. In this case, openness won, but it’s just a reminder that the price of liberty is eternal vigilance.