Legal Analysis v. Conclusion: A Dividing Line for the Deliberative-Process Privilege

The First Circuit joined the Second and D.C. Circuits in ruling that the deliberative-process privilege protects legal counsel’s conclusions and opinions in situations where the governmental agency based a particular decision on counsel’s opinion rather than her reasoning or analysis behind the opinion.  Governmental agencies at the federal, state, and local levels will likely use this reasoning/opinion dividing line in responding to FOIA or state public-records requests.  New Hampshire Right to Life v. U.S. Dep’t of Health & Human Servs., 2015 WL 467525 (CTA1 Feb. 4, 2015).  You may read the decision here.

New Hampshire Right to Life (NHRTL) submitted a FOIA request to and later filed suit against HHS seeking documents related to HHS’s grant award to Planned Parenthood of Northern New Englancrossinglined.  HHS withheld documents containing Office of General Counsel’s advice to HHS that it could legally issue the grant to Planned Parenthood.

FOIA’s Exemption 5 shields documents from disclosure that are normally non-discoverable in civil litigation, including documents protected by the deliberative-process privilege and the attorney–client privilege.  The deliberative-process privilege protects communications that are predecisional and deliberative.

NHRTL argued, however, that HHS waived the privilege because it adopted the OGC’s advice—that HHS could legally issue the grant—as “policy of the Agency.”  While it is true that an agency adoption of predecisional opinions as policy obviates the privilege, the court created a demarcation line between adoption of legal opinions and adoption of the reasoning and analysis behind those opinions.

The court said that it makes “no sense” to adopt a “categorical rule” that “every time an agency acts in accord with counsel’s view it necessarily adopts counsel’s view as ‘policy of the Agency.’”  This is especially true where counsel’s advice is simply that the agency has no legal barrier preventing it from making a particular position.

The court followed cases in the Second and D.C. Circuits in ruling that Exemption 5 does not protect legal opinions from disclosure only when the agency actually adopts the reasoning behind counsel’s opinions.  In other words, an agency’s reliance on a document’s conclusions in rendering a decision does not necessarily mean the agency relied on the document’s analysis.  It is only the agency’s adoption of counsel’s reasoning that destroys the privilege.

The court highlighted the instrumental reasoning behind the deliberative-process privilege by recognizing the chilling effect on agencies seeking counsel’s advice for any broader rule:

It is a good thing that Government officials on appropriate occasion confirm with legal counsel that what the officials wish to do is legal.  To hold that the Government must turn over its communications with counsel whenever it acts in this manner could well reduce the likelihood that advice will be sought.

The moral of the story is that, to keep the privilege, government agencies should carefully rely upon its counsel’s conclusions in their decision-making process and avoid expressly adopting counsel’s reasoning or analysis.  For other cases, see National Council of La Raza v. Dep’t of Justice, 411 F.3d 350 (CTA2 2005) and Electr. Frontier Found. v. U.S. Dep’t of Justice, 739 F3d 1 (CTADC 2014).

Judge Lamberth Finds No Waiver Where Party Produces Privileged Documents Pursuant to a Subpoena 1

Judge Royce C.  Lamberth, who oversaw the Foreign Intelligence Surveillance Court after September 11, 2001, issued a point-blank ruling that a government agency’s disclosure of privileged information to the U.S. Senate’s Permanent Subcommittee on Investigations did not constitute a waiver of the attorney–client privilege or deliberative-process privilege.  Spears v. First American eAppraiseIT, 2014 WL 6783737 (D.D.C. Dec. 2, 2014).  You may read Subpoenathe decision here.

The U.S. Senate’s Permanent Subcommittee on Investigations issued a report in 2011 on the 2007–2008 Wall Street financial collapse.  The report included references and summaries of documents that the Office of the Comptroller of Currency provided to the Subcommittee under seal pursuant to a subpoena duces tecum.

In a subsequent civil lawsuit against First American eAppraiseIT, the plaintiffs subpoenaed the OCC requesting that it produce the three documents behind the summaries that the Subcommittee publicly disclosed in its report.  The documents were a memorandum from OCC (then Office of Thrift Supervision) attorneys to its Chief Counsel, OCC enforcement attorney’s notes containing legal analysis of the investigation of Washington Mutual Bank, and a memorandum of an OCC Regional Appraisal to OCC Enforcement Counsel.

The OCC objected on grounds that the attorney–client privilege and the deliberative-process privilege protected the documents from disclosure.  The plaintiffs agreed with the privilege assertions, but stated that the OCC’s disclosure of the documents to the Subcommittee—and the Subcommittee’s subsequent disclosure in its public report—constituted privilege waiver.

Judge Lamberth, however, rejected these arguments.  He ruled that the OCC had not waived the privileges because the Subcommittee, and not the OCC, had publicly disclosed the documents’ content.  He ruled that the OCC’s disclosure of documents to the Subcommittee was not tantamount to the OCC publicly disclosing the documents, noting that “OCC is not responsible for” the Subcommittee’s report.

Judge Lamberth also held that OCC did not waive the privileges by producing the documents to the Subcommittee because it did so in response to a subpoena.  He held that “documents produced pursuant to a subpoena are not voluntarily disclosed,” noting that “[t]here is less reason to find waiver when documents have been provided pursuant to a subpoena, and provided under seal.”

PoP Analysis.  Judge Lamberth distinguished each case on which the plaintiffs relied in asserting their privilege-waiver argument, but provided little case-law support for his rulings that producing documents pursuant to subpoena does not constitute privilege waiver or that a government branch’s disclosure does not equate to public disclosure by the party originally producing the documents.  Yet, for lawyers looking for authority supporting the argument that producing documents pursuant to a subpoena does not constitute voluntary disclosure and privilege waiver, Judge Lamberth provides it here.

Privilege Protects CIA’s Bay of Pigs Study from Disclosure

In a 2-1 decision, the U.S. Court of Appeals for the D.C. Circuit ruled that the deliberative process privilege protects from a FOIA request a 1973 CIA draft volume about the Bay of Pigs operation.  The draft, the last of a five-volume assessment by former CIA staff historian Dr. Jack Pfeiffer, detailed the author’s conclusions about the failed Cuban invasion. National Security Archives v. Central Intelligence Agency, 2014 WL 2053829 (D.C. Cir. May 20, 2014).  You may read the opinion here.

In April 1961,  President Kennedy authorized a CIA-led invasion of Cuba in an effort to diminish Cuba’s military in preparation for a hopeful democratic revolution and overthrow of Castro’s Communist regime.  The CIA provided air support while Cuban exiles launched from Guatemalan shores and landed on the banks of the Bay of Pigs.

The military operation failed and resulted in several casualties, including the lives of four American pilots.  President Kennedy addressed the pilots’ deaths, and the continued secrecy of their role in the operation, with these short remarks at a press conference.

In 1973, CIA staff historian Dr. Jack B. Pfeiffer drafted what became a five-volume treatise on the Bay of Pigs invasion.  The CIA later released Pfeiffer’s drafts of Volumes I through IV, but never released the fifth volume.  In connection with the 50th anniversary of the Bay of Pigs invasion, the non-profit group National Security Archives submitted a FOIA request for Pfeiffer’s fifth volume.  The CIA refused its production on grounds that the deliberative process privilege protected its disclosure, and defended that position when the requestor filed suit.

The issue reached the U.S. Court of Appeals.  In a 2-1 decision, the Court ruled that the deliberative process privilege covered Dr. Pfeiffer’s fifth-volume draft.  The deliberative process privilege, a branch of the general executive privilege, precludes from disclosure agency communications that are both predecisional and deliberative.  Noting a “concern that is as old as the Republic,” the Court recognized that the privilege permits agency employees to participate in the free, uninhibited exchange of ideas without fear that their discussions will later be disclosed.

The Court held that the deliberative process privilege protects all “draft” agency documents because they are necessarily predecisional and deliberative.  While drafts may become final versions released to the public, the drafts remain predecisional.  The Court rejected all of the requestor’s counterarguments, including that the privilege should not apply because there was no “final” fifth volume, the CIA released the other four volumes, the CIA identified no harm in the fifth volume’s release, and the passage of time (50 years) renders the privilege inapplicable.

With no final version of the last of his five-volume assessment, Dr. Pfeiffer’s draft will always remain a draft that the public will never see short of the CIA’s voluntary disclosure.