The U.S. Court of Appeals for the District of Columbia Circuit has, in its December 10, 2021 Opinion, Judicial Watch, Inc. v. United States Department of Justice, No. 20-5304, now cut short the federal government’s flagrant overuse of the fifth exemption from production of documents set forth in the Freedom of Information Act, 5 U.S.C. § 552, the so-called “deliberative process privilege.” That exemption from disclosure has been used by federal agencies, over the years, to deny requesters’ access to public documents, on the ground that those documents contain “inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5).

In Judicial Watch, the D.C. Circuit specifically reiterated and adopted the factors the agency invoking the privilege must show, as originally set forth in Senate of Puerto Rico v. DOJ, 823 F.2d 574, 585-86 (D.C. Cir. 1987). These include “(1) ‘what deliberative process is involved,’” and “(2) ‘the role played by the documents in issue in the course of that process.’” Id., quoting Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 868 (D.C. Cir. 1980). In Judicial Watch, the Court added “to ‘assist the court in determining whether th[e] privilege is available,’ the agency should also explain (3) the ‘nature of the decisionmaking authority vested in the officer or person issuing the disputed document,’ and (4) the ‘relative positions in the agency’s chain of command occupied by the document’s author and recipient.’” Id. at 586.

The Court found none of those factors to have been addressed by the DOJ in Judicial Watch, and, consequently, remanded the case to the District Court “to review [the requested documents] in camera and determine, consistent with the principles set forth herein, whether they qualify as deliberative.”

Ironically, in the earlier case of Rojas v. FAA, 989 F.3d 666 (9th Cir. 2021), the Ninth Circuit took a contrary position and broadened the scope of exemption five to include “at least in some circumstances, documents prepared by outside consultants hired by the agency to assist in carrying out the agency’s functions,” referred to as the “consultant corollary.” That case has been appealed to the United States Supreme Court, and, in light of the D.C. Circuit’s decision in Judicial Watch, may actually be accepted for hearing there as a dispute between the Circuits on an important point of law.

The D.C. Circuit has, thus, set the currently applicable standard that must be met by all federal agencies in order to rely on the “deliberative process privilege,” hopefully ending their indiscriminate use and consequent denial of access to public documents by the very public that access is meant to benefit.