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.”
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