A N.J. appellate court issued an interesting opinion for governmental entities responding to public-records requests. The question was whether a public-records act requires a governmental agency to produce its draft, unapproved meeting minutes. The N.J. court held that draft minutes are pre-decisional and deliberative, protected by the deliberative-process privilege, and not subject to a public-records request. Libertarians for Transparent Gov’t v. Gov’t Records Council, 180 A.3d 327 (N.J. Super. 2018). You may read the decision here.
The deliberative-process privilege, a sub-category of the global executive privilege, protects from disclosure documents and information reflecting a governmental agency’s deliberations prior to a final decision. The privilege encourages agency employees to engage in open debate about government policy by precluding their pre-decision comments from public disclosure. It therefore protects advisory opinions, recommendations, and deliberations.
To invoke the privilege, the governmental agency must show that the requested document is (1) pre-decisional, meaning the agency created it before adopting the corresponding policy or decision; and (2) deliberative, meaning that it contains opinions, recommendations, or advice.
Government Records Council
New Jersey’s Government Records Council, which, ironically, “is committed to making the Open Public Records Act (OPRA) work for the citizens of New Jersey,” and has “worked hard to make government records more easily accessible to the public,” held its monthly meeting on February 23, 2016. The GRC took minutes and was ready to approve them at the March 2016 meeting, but the GRC cancelled that meeting for lack of a quorum. More…
The Clinton email scandal continues to rear its head in political news circles, but also in the much more exciting circles of FOIA and the deliberative-process privilege.
In a FOIA case seeking documents showing that Secretary Clinton sought approval to use private email for government business, a federal court upheld the State Dept.’s deliberative-process privilege. And without deciding whether Clinton’s email use was improper, the court held that the privilege’s government-misconduct exception did not apply. Judicial Watch, Inc. v. U.S. Dep’t of State, 2018 WL 387854 (D.D.C. Jan. 11, 2018). You may read the decision here.
Judicial Watch made a FOIA request to the State Dept. for (1) any “records of request” by Secretary Clinton seeking approval to use an iPad or iPhone for official government business, and (2) intra-agency documents related to “the use of unauthorized electronic devices.”
The State Dept. withheld certain documents under the deliberative-process privilege. This privilege generally permits a gov’t agency to withhold documents reflecting deliberations held prior to its decision, i.e., deliberative and pre-decisional. For more information on this privilege, see my post, Privilege Protects OLC Legal Memo Authorizing FBI’s Phone Records Collection.
Is there a Government-Misconduct Exception?
Judicial Watch did not challenge that the privilege protected the State Dept.’s withheld documents, but instead relied upon the putative government-misconduct exception to the privilege. This exception generally vitiates the privilege “when there is reason to believe the documents sought may shed light on government misconduct.” The exception’s basis is that shielding documents evidencing officials’ misconduct “does not serve the public’s interest in honest, effective government.” More…
Okay, it was a DC steakhouse, not a bar, and this is no joke.
Two of President Trump’s personal lawyers—Ty Cobb and John Dowd—ate lunch at BLT Steak on a recent Tuesday and discussed differing legal strategies for responding to Director Mueller’s Russian-related document requests. They dined and debated with no knowledge that New York Times reporter Ken Vogel sat at an adjacent table secretly taking notes of the lawyers’ conversation.
Photo: @kenvogel Twitter
What does this episode mean for President Trump’s potential invocation of executive privilege? What lessons can all lawyers derive from this inside-the-beltway faux pas? Let’s discuss.
“Every Washington Reporter’s Dream”
In a recent NYT article, ‘Isn’t that the Trump Lawyer?’: A Reporter’s Accidental Scoop, Vogel provided a blow-by-blow account of his encounter with the two Trump lawyers. He met a source at BLT Steak for lunch and, shortly after ordering, the restaurant seated Messrs. Dowd and Cobb at a table directly behind Vogel. More…