For over 50 years, the Freedom of Information Act (FOIA) has given the public access to records from any federal agency with the purpose of keeping government transparent and accountable.
However, not all records require being released — even under FOIA.
Since its passage, congress has established nine different exemptions that the federal government can enact to deny access to information from classified materials to law enforcement investigations.
One of the more contested FOIA exemptions is Exemption 5, which involves privileged communications within or between agencies. This exemption covers multiple privileges, including attorney-work product privilege, attorney-client privilege, and deliberative process privilege.
The Deliberative Process Privilege is particularly disputed as it covers pre-decisional materials written as part of the federal agencies’ decision-making process. This process helps protect candid discussions and internal debates that coincide with determining a solution. However, counterarguments point out that Exemption 5 should only be utilized whether sufficient prospect exists of actual harm to legitimate public or private interests. The wealth of litigation surrounding Exemption 5 and the Deliberative Process Privilege provides the question on whether this helps or hurts governmental transparency.
To see FOIA’s Exemption 5 use of Deliberative Process Privilege in action, let’s take a quick look into a recent court case involving the Department of Energy a proposed plan for housing the elemental mercury in long-term storage.
Mercury Storage and Scheduling – Case No. FIA-18-0037
In 2018*, the Natural Resources Defense Council (NRDC) submitted a FOIA request seeking records involving the Department of Energy’s (DOE) guidance involving long-term storage of elemental mercury, resources devoted to the development of such guidance, consultations between the DOE and other federal or state agencies, and the Office of Management and Budget’s review of the DOE’s proposed guidance.
On August 20, the DOE’s Office of Public Information responded to NRDC’s FOIA request and shared documents involving long-term mercury storage and a Schedule entirely redacted through Exemption 5 since the document “ha[d] been deemed pre-decisional and/or deliberative in nature…”.
NRDC filed an appeal to the DOE’s Office of Hearings and Appeals on November 19 and argued that the DOE’s Office of Public Information improperly redacted factual information in the mercury storage schedule and that they did not provide proper reasoning for enacting Exemption 5.
The DOE’s Office of Hearing and Appeals soon followed up with this request on November 28 when a staff attorney conducted a telephone conversation with the engineer who prepared the schedule. In the meeting, the staff attorney discovered that the schedule was used to summarize steps and estimate a timeline for the individual’s supervisor. More so, the DOE did not adopt this approach in their final decision-making process and most actions outlined did not occur.
As of the writing, NRDC filed one last appeal to the Department of Energy’s Office of Hearings and Appeals but was once again denied as they believed Exemption 5 was used properly in this case, as the schedule was “pre-decisional and deliberative in nature rather than factual” and any factual knowledge discovered in the document would have no independent meaning if disclosed.
Analysis – DOE Stands by protecting the decision-making process
FOIA’s Exemption 5 is an important rule that protects the decision-making processed documents when making recommendations, proposals, and suggestions, especially when they involve a subordinate to a supervisor (see Wolfe v. HHS, 839 F.2d 768, 776 [D.C. Cir. 1988]). In the Case No. FIA-18-0037 involving the Natural Resources Defense Council, the DOC redacted the schedule because it was not factual—it listed steps that the author believed the DOE should take if it pursued a policy involving long-term mercury storage. And since the schedule reflects non-factual recommendations and opinions from a subordinate to a superior, the DOE was right in ruling the schedule as both pre-decisional and deliberative in nature – classifying it as Deliberative Process Privilege and exempting it from disclosure under FOIA Exemption 5.
*The initial filing date for the Natural Resources Defense Council’s FOIA request was absent in the U.S. Department of Energy Office of Hearings and Appeals explanation document.
