canadian lipitor
July 21, 2010 by
Filed under ,
One exemption to the is the deliberative process exemption. Matter relating to the “” of government can be exempt from public records disclosure.
opinions or recommendations in the course of making decisions that apply to official government functions (like policy or legislation). To qualify for the privilege, records must be both predecisional (they must precede a final decision) and deliberative (they must be opinions or recommendations). Things like processing forms and paying accounts, purely procedural, administrative processes of an agency, are not part of its deliberative processes.
The privilege is meant to protect the “candid and frank discussions” of government employees and prevents them from being second-guessed constantly by interested outside parties. The privilege is also sometimes claimed to avoid confusing the public about the way a decision was reached.
While the justifications for having the exemption seem justified, it is considered on of the most often abused FOIA exemptions. , a magazine on government best practices, saw the exemption in 1996 as “self-serving, [protecting] most of the records which really reveal the process of government, and [...] invoked often as a knee-jerk reaction to a request.”
But that article has more than a problem with the application of the exemption. The justifications for it are on shaky ground:
It is hard to fathom that a competent government employee would be so embarrassed or upset that his or her analytical work was disclosed to the public that it would cause that employee to be less candid in the future. It is difficult to believe that most staff members are so unsure of what they have to say, or so timid about expressing themselves, that public disclosure would force the process of government to grind to a halt.
The author of that article requested a Justice Department report on proposed changes to FOIA, and after several legal battles, he was granted the file. With half of the pages redacted. The reason? Deliberative process exemption. He tried requesting again under the Clinton administration, a more FOIA-friendly organization, and was granted the full report. After reading through it, the author was confused:
When I leafed through the report I wondered why in the world we had wasted so much time litigating over it. The information originally deleted was cut-and-dry legal analysis. This is certainly no criticism of the attorney who prepared it, but it was not a scintillating novel approach to the law. The attorney was not expressing any “candor” or “frank discussion.” It was as routine as one could possibly imagine. No secrets, no nothing.
This anecdotal experience certainly justifies the belief that using deliberative process as ground for an exemption is a knee-jerk reaction when governments get an information request.
When is this exemption justified? I’d love to hear from you about cases you’ve been involved with or have followed where there was a need to keep deliberative, decisional information private. Let me know or join and on Twitter this Friday from 2-3 EST at , our weekly chat on public records and open meetings issues. On Friday, we’ll be talking about the deliberative process exemption specifically, so come share your thoughts or join us to learn more about it.