The Deliberative Process or Executive Privilege

The decision in Estate of LeRoux v. Montg. County, MD, 2024 WL 1703939 (D. Md. Apr. 19, 2024), states that “[t]here is no binding legal authority on the application of deliberative process privilege in the Fourth Circuit.”  Id. at *3. In LeRoux, the Hon. Aimel A. Quereshi provided a comprehensive analysis of that privilege.

With the U.S. Supreme Court’s recent decision overruling Chevron, there will likely be more challenges to agency action.  See Justin Wise, Chevron Ruling Poised to Boost Business for Corporate Litigators (bloomberglaw.com)(July 1, 2024), discussing Loper Bright Enterprises v. Raimondo, No. 22-451, __ U.S. __ (Jun. 28, 2024).

That, in turn, will likely bring the deliberative process privilege to the forefront of many more cases.  And, that will impact e-discovery.

The privilege is well-established.  In United States v. Nixon, 418 U.S. 683 (1974), the Supreme Court recognized “the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties; the importance of this confidentiality is too plain to require further discussion. Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process.”  Id. at 705.   “The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.”  Id. at 708.

In LeRoux, plaintiff was the estate of man shot to death by county police officers.  Plaintiff moved to compel discovery of memos prepared by the internal affairs division.  Defendants asserted a deliberative process privilege.  After in camera review of two of the memos, the motion was granted in part and denied in part.  The Court held that one memo “can easily be redacted” and the other was not protected. Id. at *3.  It explained:

The deliberative process privilege protects “documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.”

Id. at *3.  It is designed to “foster” government decision-making by protecting it from the “chill” of disclosure. Id.  As such, it permits agency subordinates to provide “uninhibited opinions and recommendations” to decision-makers.  Id.

The LeRoux Court notes that courts have questioned the underlying assumption supporting the privilege. Id. at *4. Concerns about the privilege reach their zenith when the public interest is involved. Id.  In fact, a decision from the Northern District of California found the deliberative privilege “inappropriate for use in civil rights cases against police departments.”  That court wrote that: “The deliberative process privilege should be invoked only in the context of communications designed to directly contribute to the formulation of important public policy.”  Id. (citation omitted).  Under that construct, routinely generated documents, such as internal affairs investigations, would not be protected.  Id.

One exception to the privilege is that it does not apply where plaintiff’s claim is directed at the government’s intent. Id. at *4.  And, as with other privileges, underlying facts are not protected. Id.  “[T]he privilege serves to protect the deliberative process itself, not merely documents containing deliberative material.” Id. at *6 (citation omitted).

Because it is a qualified privilege, the deliberative process privilege is “fact specific.” Id. at 3.   In federal question cases, federal common law governs the privilege, although Maryland common law is substantially similar.  Id.

Like the “official information” privilege, discussed in a forthcoming blog titled The Federal “Official Information” Privilege, a government cannot “blankly assert the privilege without support.” Id. at *5:

To assert the deliberative process privilege, the government usually must: a) Invoke it through an agency head or her subordinate who is personally knowledgeable about the information sought to be protected; b) Identify the specific information that is protected by the privilege; c) Give reasons for maintaining the confidentiality of the information; d) Demonstrate that the privileged information is both pre-decisional and deliberative.

Id.

To be “pre-decisional” a document must be “prepared in order to assist an agency decisionmaker in arriving at his [or her] decision, rather than to support a decision already made.”  Id.  The privilege does not include documents “that embody a final decision….” Id.

A document must also be “deliberative,” meaning that it “reflects the give-and-take of the consultative process” and exposes “the manner in which the agency evaluates possible alternative policies or outcomes.”  Id. (citations omitted).

Documents that provide recommendations or alternative suggestions, or which “weigh[ ] the pros and cons of agency adoption of one viewpoint or another” are likely to be privileged. But if the suggestion contained in a document “is adopted, formally or informally, as the agency position on an issue,” or if it is “used by the agency in its dealings with the public,” the document may lose its privileged status.

Id. at *8 (citation omitted).

“Finally, even if these requirements have been met, the deliberative process privilege should be invoked only in the context of communications designed to directly contribute to the formulation of important public policy.” Id. at *5 (quotations and citation omitted).

Further, “courts consider whether the disclosure of that document would be likely to undermine the purposes of the privilege.” Id.  For example, if disclosure is likely to stifle candid internal analysis, a privilege may be found.

However – – “[e]ven if the Court determines that the privilege applies, the privilege is not absolute; rather, courts must balance the “public interest in nondisclosure with the need for the information as evidence.”  Id. at *6.  The LeRoux Court added: “Applying this balancing, courts have routinely found that the interest in disclosure outweighs the interest in privacy in civil rights cases….”  The assertion of privilege must “overcome the fundamental importance of a law meant to insure each citizen from unconstitutional state action.” Id. (citation omitted).

As the Supreme Court noted long ago, privileges are “exceptions to the demand for every man’s [and woman’s] evidence” and therefore they “are not lightly created nor expansively construed, for they are in derogation of the search for truth.”  United States v. Nixon, 418 U.S. 683, 710 (1974).

Applying these principles after in camera review, the LeRoux Court held that part of one document was privileged and none of the other was privileged.  Id. at *6, passim.

The Court also addressed other issues, such as attorney-client privilege.