Often called the “withhold it because you want to” exemption, the deliberative process privilege is routinely used and abused by the government to block disclosure of information under the Freedom of Information Act (FOIA). In a friend-of-court-brief filed in the Supreme Court this week, the American Civil Liberties Union (ACLU) and CREW urged the court to rein in this increasingly problematic roadblock to transparency.
The case, U.S. Fish and Wildlife Service v. Sierra Club, involves a particularly egregious use of the privilege. As part of a multi-agency consultation process, the Fish and Wildlife Service and National Marine Fisheries Services (the Services) issued opinions finding that a regulation proposed by the Environmental Protection Agency (EPA) would jeopardize species protected by the Endangered Species Act. The Services’s concerns were so serious that they caused EPA to abandon its proposed regulation and start the process from scratch. Yet when Sierra Club tried to obtain the opinions through FOIA, the Services balked. Invoking the deliberative process privilege, the government argued that the opinions were pre-decisional “drafts”—even though the opinions had in fact altered EPA’s decision-making process and played a very real role in governmental decision-making.
While tools that allow for redactions of publicly released records, such as the deliberative process privilege, were created to allow more honest communications between officials, the privilege has been grossly abused for years. The public is entitled to understand the government’s decision-making processes and can only hold agencies accountable if there is transparency in those processes. The concern is particularly strong in cases, like this one, where there is a risk that the government is developing a body of “secret law” that it uses to make critical decisions affecting the public. That is precisely the scenario that FOIA is designed to prevent.