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![handle is hein.crs/goveoym0001 and id is 1 raw text is: Congressional Research Service
Informing the Iegisl9tive debate since 1914
0
April 16, 2024
The Deliberative Process Privilege in Congress
The executive branch sometimes invokes the deliberative
process privilege (DPP) in response to requests for
information from Congress and the public, both in litigation
and, with respect to the former, in the course of
congressional investigations. The DPP is recognized
primarily as a common-law privilege, although some courts
have concluded that in certain circumstances it may contain
constitutional dimension[s].
The Executive frequently invokes the DPP to limit the
disclosure of documents reflecting advisory opinions,
recommendations, and deliberations comprising part of a
process by which governmental decisions and policies are
formulated. Put another away, the DPP protects from
compulsory disclosure government materials that would
not be available by law to a party other than an agency
during litigation against that agency.
Over time, the Executive has developed a broad view of the
DPP through agency practice, executive orders, Department
of Justice (DOJ) Office of Legal Counsel opinions, and
White House Counsel directives, justifying the privilege as
a means of encouraging candor and honest debate during
agency decisionmaking.
The Executive often invokes the DPP before Congress, and
particularly in congressional oversight investigations,
because it gives protection to the very decisionmaking
process that Congress is frequently trying to understand.
This In Focus discusses three pertinent aspects of the DPP:
what it is, what materials it may cover, and how Congress
may choose to respond to its invocation.
Elements and Scope of the Privilege
The DPP applies to agency documents and communications
that are predecisional-that is, created prior to the agency
reaching its final decision-and deliberative, meaning
related to the thought process of executive officials.
Predecisional and deliberative materials may include
information on how and why an agency adopted a certain
policy choice and records that disclose an agency's thought
process, including materials developed in the course of
decisionmaking, like leadership and staff recommendations
and proposals, draft rules, and internal policy debates.
The Supreme Court has recognized that a record is
deliberative if prepared to help the agency formulate its
position. Only predecisional material can be deliberative.
A record reflects a final decision and is therefore not
predecisional (and thus not protected by the DPP) only
where the material reflects the consummation of the
decisionmaking process and not a merely tentative
position. A predecisional document is one that leaves
decisionmakers free to change their minds.
The DPP does not apply to materials that simply state or
explain a decision already made, unless that information is
inextricably intertwined with the deliberative portions of
the materials such that disclosure would effectively reveal
executive deliberations. The Supreme Court has clarified
that although the DPP does not protect post hoc materials
explaining an action already made, the privilege does
protect in-house drafts that proved to be the agencies' last
word on a particular course of action. Put another way,
even if an agency draft turns out to reflect the agency's
final decision, that draft may still be protected from
disclosure by the DPP if at the time it was written it was
predecisional and deliberative.
The DPP does not protect factual information; agencies
generally may not withhold research and data that form the
underlying basis for a proposed rule or policy. In addition,
the DPP does not protect entire documents. Rather, the
executive branch must disclose non-privileged information
that can be reasonably segregated from privileged
information in the requested materials.
The DPP is not an absolute privilege: even when the
privilege applies to a given document or communication, it
can be overcome by a sufficient showing of need. Further,
the D.C. Circuit has explained that the privilege disappears
altogether when there is any reason to believe government
misconduct has occurred, because using the privilege to
shield such information would not serve the public's
interest in honest, effective government.
Finally, the DPP does not prevent an agency that chooses
not to invoke the privilege from voluntarily disclosing
information.
Assertng the Prvee Before Congress
The Executive has invoked the DPP during congressional
investigations. These invocations are made both during
hearings before congressional committees and in written
response to requests or subpoenas. Sometimes the privilege
is not expressly invoked, and the Executive may instead cite
confidentiality concerns or other interests as a reason for
withholding the requested information.
The D.C. Circuit has described the DPP as primarily a
common law privilege, but has stated that aspects of the
privilege, for example the protection accorded the mental
processes of agency officials, . . . have roots in the
constitutional separation of powers. As a matter of
practice, Congress has sometimes sought to constrain the
invocation of the DPP in congressional investigations, such
as through the promulgation of chamber rules. The rules
governing several House committees of the 118th Congress
provide that claims of common-law privileges, which
committees generally view as including the DPP, apply
only at the discretion of the Chair, subject to appeal to the](ViewImageLocal?handle=hein.crs/goveoym0001&div=1&collection=&method=preview&ext=.png&size=3)