Simone Lawson
The Freedom of Information Act (FOIA) gives the public the right to request access to records from any federal agency. The act has nine exemptions that can be used by government agencies to deny or redact requested public records. One of these exemptions is the deliberative process privilege, which protects documents reflecting advisory opinions and deliberations that are part of the process by which the government formulates decisions and policies. This privilege is intended to encourage open and frank discussions on matters of policy and improve agency decision-making. However, there are concerns that agencies may abuse this privilege to withhold information from the public.
| Characteristics | Values |
|---|---|
| Documents that are not covered by FOIA | Non-agency records, personal records, physical artifacts or scientific samples |
| FOIA exemptions | Classified information, certain law enforcement records, certain personnel and medical files |
| FOIA requests | Submit through the National FOIA Portal, use the Department of the Interior’s FOIA Public Access Link, write a letter to the FOIA Office |
| FOIA fees | No initial fee, but the FOIA provides for the charging of certain types of fees in some instances |
| FOIA disclosure | Agencies should withhold information only if they reasonably foresee that disclosure would harm an interest protected by an exemption, or if disclosure is prohibited by law |
| FOIA Exemption 5 | Deliberative process privilege, attorney work-product privilege, attorney-client privilege |
| FOIA Exemption 9 | Geological information on wells |
| FOIA litigation | Offered by the Office of Government Information Services (OGIS) as mediation to resolve disputes between FOIA requesters and agencies |
| Deliberative process privilege | Shields from disclosure records subject to the deliberative process privilege, which protects documents reflecting advisory opinions and deliberations |
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What You'll Learn
The deliberative process privilege
The Freedom of Information Act (FOIA) gives the public the right to request access to records from any federal agency. This is often described as the law that keeps citizens informed about their government. Federal agencies are required to disclose any information requested under the FOIA unless it falls under one of nine exemptions that protect interests such as personal privacy, law enforcement, and national security.
One of these nine exemptions is the deliberative process privilege, which is also referred to as Exemption 5. This privilege shields inter-agency or intra-agency records that are predecisional and deliberative, including drafts, recommendations, and deliberations. The purpose of this privilege is to "encourage open, frank discussions on matters of policy" and to protect against the premature disclosure of proposed policies or drafts before they are finalized.
When deciding whether to assert the deliberative process privilege, agencies should consider the potential harm caused by the release of information and whether such risk is serious or remote. The primary factors in making this judgment include common sense, good judgment, and experience in decision-making processes.
In conclusion, the deliberative process privilege under FOIA Exemption 5 allows federal agencies to withhold certain inter-agency or intra-agency records that are predecisional and deliberative. The purpose of this privilege is to encourage open discussions and protect against the premature disclosure of proposed policies. However, agencies should carefully consider the potential harm caused by disclosure and only invoke the privilege when necessary.
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Advisory opinions and deliberations
The Freedom of Information Act (FOIA) gives the public the right to request access to records from any federal agency. The Act is often described as the law that keeps citizens informed about their government. Federal agencies are required to disclose any information requested under the FOIA unless it falls under one of nine exemptions that protect interests such as personal privacy, law enforcement, and national security.
FOIA Exemption 5 specifically protects from disclosure privileged communications within or between government agencies. This exemption is known as the "deliberative process privilege" and shields inter-agency or intra-agency records that are predecisional and deliberative. This includes documents reflecting advisory opinions, recommendations, and deliberations that are part of the process by which governmental decisions and policies are formulated. The purpose of this exemption is to "encourage open, frank discussions on matters of policy" and improve agency decision-making.
The deliberative process privilege is not absolute and agencies must consider whether the potential harm to the decision-making process if a document is released is serious or remote. Agencies should also consider whether partial disclosure of information is possible and take steps to segregate and release nonexempt information.
The deliberative process privilege has been the subject of much litigation, with critics arguing that agencies abuse this privilege to deny public records requests. The Supreme Court has expanded the scope of this privilege, holding that it protects draft documents and that the privilege should be interpreted narrowly in relation to what constitutes a document embodying a final decision.
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Draft documents
The Freedom of Information Act (FOIA) gives the public the right to request access to records from any federal agency. The act is intended to keep citizens informed about their government. Federal agencies are required to disclose any information requested under FOIA unless it falls under one of nine exemptions.
One of these exemptions is the deliberative process privilege, which is Exemption 5. This privilege shields inter-agency or intra-agency records that are part of the deliberative process. This includes records that are predecisional and deliberative, such as drafts, recommendations, advisory opinions, and other deliberations that are part of the process of formulating decisions and policies.
The deliberative process privilege is intended to encourage open and frank discussions within agencies and protect the decision-making process. It is designed to prevent the premature disclosure of proposed policies and drafts before they are finalized and published. It also prevents public confusion that might result from the disclosure of reasons and rationales that were not ultimately the grounds for a decision.
However, there are concerns that agencies may abuse this privilege by marking documents as "draft" to protect them from disclosure, even if they are functionally final decisions. The Supreme Court has assured that the privilege will not apply if it is established that an agency has hidden a functionally final decision in draft form.
When deciding whether to grant or deny access to deliberative materials, agencies should consider the potential harm to the decision-making process if the document is released. This involves using common sense and good judgment to assess the risk of harm to the organization.
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Final decisions
The Freedom of Information Act (FOIA) gives the public the right to request access to records from any federal agency. The Act is often described as the law that keeps citizens informed about their government. Federal agencies are required to disclose any information requested under the FOIA unless it falls under one of nine exemptions that protect interests such as personal privacy, law enforcement, and national security.
FOIA Exemption 5 specifically protects from disclosure privileged communications within or between government agencies. This exemption is referred to as the deliberative process privilege and it shields inter-agency or intra-agency records that are predecisional and deliberative. This privilege is intended to "encourage open, frank discussions on matters of policy" and improve agency decision-making.
The deliberative process privilege generally applies to "documents reflecting advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated." This includes drafts, recommendations from Members of Congress or an agency to a commission, consultations with state agencies, and documents provided by an agency's contractor employees.
However, there has been concern that agencies may abuse this privilege by stamping every document as a "draft," thereby protecting even final agency decisions. The U.S. Supreme Court has assured that the deliberative process privilege will not apply if an agency has hidden a functionally final decision in draft form. The Court's decision focused on whether the privilege protects "in-house drafts that proved to be the agencies' last word" and it was noted that it will be challenging to prove that documents marked as "draft" fall outside of the deliberative process privilege.
When deciding whether to grant or deny access to "deliberative" materials, agencies should consider the potential harm to the decision-making process if the document is released. This involves using common sense, good judgment, and experience to assess the risk of a "chilling effect" from the release of the document.
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FOIA requests
The Freedom of Information Act (FOIA) has, since 1967, provided the public with the right to request access to records from any federal agency. FOIA requests are a way for citizens to stay informed about their government. Federal agencies are required to disclose any information requested under FOIA unless it falls under one of nine exemptions that protect interests such as personal privacy, law enforcement, and national security.
FOIA Exemption 5, also known as the deliberative process privilege, is one of the most frequently invoked privileges. It protects from disclosure privileged communications within or between government agencies. The exemption shields inter-agency or intra-agency records that are predecisional and deliberative, such as drafts, recommendations, and deliberations, as a way to encourage open and frank discussions on matters of policy.
The deliberative process privilege is intended to protect the decision-making processes of federal agencies and prevent harm that could result from the release of certain information. When deciding whether to grant or deny access to "deliberative" materials, agencies must consider the potential risk to the decision-making process if the document is released. This involves assessing the type of advice involved, the range of motivations and practices of executives and advisors, and the potential for chilling effects or distortion of internal debate.
It is important to note that FOIA requests may take varying amounts of time to process depending on their complexity and the backlog of requests at the agency. Additionally, while there is no initial fee required to submit a FOIA request, agencies may charge fees for the time spent searching for and duplicating records.
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Frequently asked questions
The Freedom of Information Act (FOIA) provides the public with the right to request access to records from any federal agency. Federal agencies are required to disclose any information requested under FOIA unless it falls under one of the nine exemptions that protect interests such as personal privacy, law enforcement, and national security.
The deliberative process privilege is one of the nine exemptions under FOIA, specifically Exemption 5. It protects from disclosure privileged communications within or between government agencies, shielding inter- or intra-departmental records that are predecisional and deliberative. This privilege encourages open and frank discussions on matters of policy and includes draft documents and recommendations.
Agency policy under the deliberative process exemption includes records reflecting advisory opinions, recommendations, and deliberations that are part of the process by which government decisions and policies are formulated. It does not include documents that embody or explain a policy that the agency has adopted.
Agencies typically process FOIA requests in the order they are received and will send a written response informing the requester whether records were located. Releasable records will be provided, with any withheld information redacted. Agencies may charge fees for the time spent searching for and duplicating records.
