D.C. Circuit Concludes Deliberative Process Privilege Applies To Agency History Of 50-Year Old Incident

In a Freedom Of Information Act suit by plaintiff public interest group against the CIA to compel disclosure of volume V of the agency "history" of 1961 "Bay Of Pigs" operation, D.C. Circuit finds the agency history of the half-century old operation still protected from disclosure under the deliberative process privilege as a "pre-decisional and deliberative" report, in National Security Archive v. C.I.A., _ F.3d _ (D.C. Cir. May 20, 2014) (No. 12-5201)

In litigation involving the government an issue frequently arises concerning access of parties to certain government documents, particularly documents that were part of the advisory or deliberative functions of developing public policy and actions. The justification for non-disclosure of these materials, even long after the issue in controversy is resolved, is that non-disclosure of the drafting documents will help encourage free and vigorous policy assessments by agency staff. Last month the D.C. Circuit looked at a claim involving whether the CIA could claim protection of certain documents explaining and assessing an incident that is now over fifty years old. The panel divided 2-1 and the circuit concluded the desired documents were not subject to disclosure under an exception to the Freedom Of Information Act.

Draft Agency History

In 1973, "CIA staff historian Dr. Jack B. Pfeiffer drafted what became a five-volume opus," describing the CIA's plans and execution of the 1961 "Bay Of Pigs" invasion of Cuba. The agency released the first four volumes of the series, but failed to release the last volume. Plaintiff National Security Archive, a "non-profit research institute," filed a Freedom Of Information Act request for disclosure of the last volume of the five volumes. The agency denied the request, contending that the volume was "exempt from disclosure" because it was a document covered by the agency's deliberative process privilege.

The agency maintained that it was not required to disclose Volume V of the history because the document was exempt under Exemption 5 of the Freedom Of Information Act. That exemption —which protects documents that would not generally be subject to production in a civil litigation due to a privilege—claiming that Volume V is protected by the deliberative process privilege. the exemption for "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."

Application Of The Privilege

The district court agreed and in the plaintiff's suit to compel disclosure, granted summary judgment to the defendant agency. In reviewing this action, the D.C. Circuit agreed. The circuit explained that the last volume of the history was still privileged, even though the agency had released to the public the first four volumes of the series. The circuit found the last volume clearly protected by the agency's deliberative process privilege which

covers deliberative, pre-decisional communications within the Executive Branch. One of the rationales for the privilege is to encourage the candid and frank exchange of ideas in the agency's decisionmaking process. “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.” This is a concern as old as the Republic. Indeed, at the Constitutional Convention itself, the delegates agreed at the outset that none of the deliberations would be shared with outsiders, and the records were kept secret for more than 30 years.

National Security Archives, _ F.3d _ (quoting United States v. Nixon, 418 U.S. 683, 705 (1974); Nixon v. Administrator of General Services, 433 U.S. 425, 447 n. 11 (1977).

A Crucial Definition

The circuit noted a few definitions crucial in the application of the deliberative process privilege.
According to the circuit, only "pre-decisional and deliberative" communications were subject to the privilege. Pre-decisional communications were those that "have occurred before any final agency decision on the relevant matter" is taken. The circuit seemed to imply that this first feature for assessing the communication was a bit pointless - "the term ... does not add a great deal of substance" to application of the privilege. The word “deliberative,” on the other hand, signified "that the communication is intended to facilitate or assist development of the agency's final position on the relevant issue. National Security Archives, _ F.3d at _ (citing Russell v. Department of the Air Force, 682 F.2d 1045, 1048 (D.C.Cir. 1982) (limiting privilege by excluding drafts so that agency officials are “judged by what they decided, not for matters they considered before making up their minds” on a matter of policy)); Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151 (D.C.Cir. 2006)).

This definition made it clear that while an "agency's official history is a final agency decision. An agency history constitutes the agency's 'official statement' concerning the agency's prior actions, and it helps educate future agency decisionmakers." But a draft of the agency history is just that - a draft. It "is pre-decisional and deliberative, and thus protected under the deliberative process privilege." National Security Archives, _ F.3d at _ (citing Dudman Communications Corp. v. Department of the Air Force, 815 F.2d 1565, 1568-69 (D.C.Cir. 1987) (the privilege protects against agencies operating "in a fishbowl," where a "frank exchange of ideas and opinions would cease and the quality of administrative decisions would consequently suffer”))

Factors Of Little Significance

Having found the draft history protected by the deliberative process privilege, the circuit addressed five issues raised by the plaintiff that would have no impact on the agency's claim of the privilege. For instance, the circuit rejected that the CIA lost any claim to the privilege under the FOIA because the agency had released similar information about the Bay of Pigs incident previously, as had been addressed in the history. Nor would the circuit interfere with what it deemed the discretion the FOIA placed in the agency to decide if the release of a document would pose a harm to the agency's decision making process. The circuit dismissed the idea that the passage of time -- the half century since the incident assessed in the history -- would make the deliberative process privilege inapplicable. What ever its age, the circuit considered the privilege important because of its design to facilitate open and candid communications. Staff knowing that the suggestions would eventually become public could only chill the agency's ability to undertake discussions and to reach decisions.

Conclusion

The panel that considered the National Security Archives case was divided. Circuit Judge Judith W. Rogers dissented citing the passage of time, the prior releases of similar information, as disclosures made by the agency that revealed that the agency was making a "fundamentally inconsistent ... claim that release of [history] would threaten the decisionmaking process of the agency." In particular the judge noted that if the goal of the deliberative process privilege was to facilitate the ability of the agency staff to study and make policy recommendations, actions taken by the agency, such as making public its own critique of the unpublished history would have a similar effect to chilling the willingness of agency staff to communicate freely and fully. The judge seemed to suggest that the action by the majority had shifted the burden of showing the application of the privilege from one in which the supposed benefits and costs of disclosure are weighed to a per se rule protecting agency drafts.

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