The Freedom of Information Act (FOIA), first enacted more than 40 years ago, governs the release of information to the public of data generated by and submitted to the federal government. A recent decision by a U.S. District Court in Washington, DC, Competitive Enterprise Institute v. Office of Science and Technology Policy, describes one of the most important exceptions that serves to restrict the release if internal government documents, the “deliberative process privilege.”The District Court discussed this exemption in connection with its review of the Information Quality Act (IQA) and statements made in a short White House video on global warming director of the OSTP appeared in a brief White House video in which the director of the Office of Science and Technology Policy (OSTP) asserted that there was a growing body of evidence linking the weather phenomenon known as the “Polar Vortex” to global warming. The District Court held that 47 pages of internal communications (mostly drafts) that preceded the issuance of a three page letter by the OSTP responding to the Competitive Enterprise Institute’s (CEI) concerns about the video were covered by this FOIA deliberative process privilege exemption.

In January 2014, in the midst of a very cold winter, the director of the OSTP appeared in a brief White House video in which he asserted that there was a growing body of evidence linking the weather phenomenon known as the “Polar Vortex” to global warming. The release of this video concerned the CEI, which identifies itself as a public policy research and educational institute dedicated to opposing government overregulation while promoting sustainable environmental policy. The CEI took exception to this linkage, disputing its scientific accuracy, and asked that the OSTP issue a correction in accordance with the procedures established by the government to implement the IQA—legislation enacted in 2000 to require that the Office of Management and Budget (OMB) to establish guidelines that ensure that the information used by federal regulatory agencies meets the criteria of objectivity, utility and integrity.

A formal request was made by the CEI in April 2014 seeking information about the production of the Polar Vortex video and the OSTP’s three page letter rejecting CEI’s request. The OSTP argued that the video contained an expression of the director’s expert judgment and “personal opinion” and that his “expression of his opinion is legally determinative” and, as such, they are excluded from the definition of “information” and not subject to the strictures of the IQA.

CEI then filed an administrative appeal, seeking information pursuant to FOIA with respect to the production of the video. Eleven pages of documents were provided to the CEI, but 47 pages of drafts were withheld on the basis that they were subject to the FOIA’s “deliberative process privilege.” This lawsuit resulted.

Under the deliberative process privilege exemption, an agency may withhold “inter-agency or intra-agency memorandums or letters which 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). To fall within this exemption, the document must satisfy two conditions: (1) “its source must be a Government agency[,]” and (2) “it must fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it.” Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001).  The District Court noted that this “privilege shields from disclosure ‘all papers which reflect the agency’s group thinking in the process of working out its policy and determining what its law shall be,'” citing Arthur Andersen & Co. IRS, 679 F.2d 254, 257 (D.C. Cir. 1982).

While acknowledging that the many drafts prepared, exchanged and reviewed by OSTP staff could not be described as a “robust” internal policy deliberations, still they  preceded the release of the official three-page letter and, thus, they were  subject to this FOIA exception.  The District Court noted that several OSTP officials, career lawyers and even three OMB staff members were consulted in the process, and such internal debates and deliberations must be protected. In particular, it noted that:

“The drafts plainly were predecisional—they preceded in time the final version of OSTP Letter. And they were deliberative—they reflect the opinions, reactions, and comments of OSTP employees to the OSTP Letter. Moreover, the same concerns over disclosure that animated Russell and Dudman—stifling creative thinking, confusing the public, and ‘disrobing the agency decision maker’s judgment’—apply equally here. Court-ordered disclosure of the 47 pages unquestionably would have a chilling effect on the free exchange of ideas and viewpoints that the deliberative process privilege is meant to encourage and protect.” (Internal citations omitted).

It further noted that, “because even disclosure of the factual material in the OSTP Letter, and nothing more, could reveal judgments made during the drafting process itself,” it would not order disclosure of any portion of the drafts.

On the other hand, it was disclosed that a few pages of the internal drafts were shared with a Rutgers University professor who has championed a connection between the Polar Vortex and global warming. The District Court held that the judge-made “consultant corollary” which also protects from disclosure under the FOIA the advice received from outside consultants does not apply here. It was apparent to the District Court that the consultant had a professional and reputational stake in the OSTP’s decision to reject the criticism made by the CEI. Accordingly, the five draft pages shared with Dr. Francis were not covered by the deliberative process privilege.

The FOIA deliberative process privilege exemption continues to be a robust shield for governmental agencies deliberations, except when those deliberations invite private parties to participate.