The Freedom of Information Act requires government agencies to make available "final opinions... as well as orders," "statements of policy and interpretations which have been adopted by the agency," and "administrative staff manuals and instructions ... that affect a member of the public." 5 U.S.C. § 552(a)(2). FOIA exemptions allow agencies to withhold information from disclosure [. . .] Exemption 5 covers material that would be protected from disclosure in litigation under one of the recognized evidentiary or discovery privileges, such as the attorney-client privilege. Pub. Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865, 874 (D.C.Cir.2010) (citing Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 862 (D.C.Cir.1980)). The deliberative process privilege is one of the litigation privileges incorporated into Exemption 5. It allows an agency to withhold "all papers which reflect the agency's group thinking in the process of working out its policy and determining what its law shall be." Sears, 421 U.S. at 153, 95 S.Ct. 1504. Electronic Frontier Foundation v. Dept. of Justice, 739 F. 3d 1 (DC Cir. 2014).
The deliberative process privilege protects agencies from being "forced to operate in a fishbowl." EPA v. Mink, 410 U.S. 73, 87 (1973) (quotations omitted). And it applies when "production of the contested document would be injurious to the consultative functions of government that the privilege of nondisclosure protects." Id. (quotations omitted). The privilege "calls for disclosure of all opinions and interpretations which embody the agency's effective law and policy, and the withholding of all papers which reflect the agency's group thinking in the process of working out its policy and determining what its law shall be." Sears, 421 U.S. at 153, 95 S.Ct. 1504 (quotations omitted). The privilege is limited to documents that are "predecisional" and "deliberative," meaning "they 'reflect advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated, [or] the personal opinions of the writer prior to the agency's adoption of a policy.'" Pub. Citizen, 598 F.3d at 875 (quoting Taxation With Representation Fund v. IRS, 646 F.2d 666, 677 (D.C.Cir.1981)).
THIS CASEBOOK contains a selection of 27 U. S. Court of Appeals decisions that analyze and interpret the deliberative process privilege. The selection of decisions spans from 2009 to the date of publication.