Court Expands Mental Process Privilege for Administrative Law Judges

The Iowa Supreme Court, deciding an issue of first impression, ruled that the mental process privilege applies to administrative law judges under investigation by the State’s Ombudsman’s office. The decision, issued in Office of Citizens’ Aide/Ombudsman v. Edwards, 2012 WL 6217027 (Iowa Dec. 14, 2012), which can be accessed here, expands the mental process privilege for administrative law judges.

Mental Process Privilege

The mental process privilege protects from compelled disclosure the deliberative or mental processes of individuals, most notably administrative law judges, acting in a quasi-judicial capacity.  The privilege’s basis arises from the idea that individuals

Iowa expands mental process privilege

making administrative adjudications must be able to render independent decisions free from external and internal pressures.  And permitting compelled disclosure of an ALJ’s thought processes behind a decision would thwart that concept.  See United States v. Morgan, 313 U.S. 409 (1941); Grant v. Shalala, 989 F.2d 1332 (CTA3 1993) (Alito, J.).  Most courts hold that the privilege is qualified, meaning that it may be overcome upon a sufficient showing of need.

Facts

Iowa maintains an Ombudsman’s Office that serves as a watchdog for administrative agencies.  The Ombudsman’s Office opened an investigation into a prisoner-disciplinary decision rendered by an ALJ for the Iowa Department of Corrections (IODC).  The Ombudsman’s Office subpoenaed the ALJ to provide deposition testimony regarding the basis for her decision, but she refused citing the mental process privilege adopted in State ex rel Miller v. DeCoster, 608 N.W.2d 785 (Iowa 2000).

Ruling

The Ombudsman’s Office argued that the mental process privilege applies only in judicial proceedings and does not extend to investigations into an ALJ’s conduct.  The Iowa Supreme Court disagreed and extended the privilege to administrative investigations so long as the ALJ was acting in a quasi-judicial capacity.  The test whether an administrator functions in a quasi-judicial capacity involves determining (1) whether the questioned act involves a proceeding that requires notice and opportunity to be heard, or (2) whether the administrator determines the parties’ rights by exercising discretion in finding facts and applying the law to those facts.

Here, the IODC ALJ met those conditions, and the Court ruled that the mental process privilege applies during an Ombudsman’s investigation into her conduct.  So, while the Ombudsman may inquire at deposition into procedural steps regarding the questionable decision, he may not inquire into the ALJ’s mental processes behind that decision.

The Court also held that the mental process privilege is qualified.  The party seeking to overcome the privilege must make a “strong showing” of bad faith or improper behavior by the ALJ.  And while the burden does not require the party to conclusively prove bad faith or improper behavior, bare allegations and conclusory statements are insufficient.

Relation to Deliberative Process Privilege and Judicial Deliberative Privilege

The mental process privilege is more akin to deliberative process privilege but is related to the judicial deliberative privilege.  The deliberative process privilege protects from compelled disclosure an administrative agency’s deliberative materials created as part of the agency’s decision-making process.  Like the mental process privilege, the deliberative process privilege is qualified and may be overcome upon a showing of need that outweighs the agency’s need for confidentiality.  See an earlier PoP post analyzing a New Mexico Supreme Court decision on the deliberative process privilege.

The judicial deliberative privilege protects a judge’s mental processes and deliberative thoughts.  This privilege, unlike the mental process privilege, is absolute, not qualified, meaning that once established it cannot be invaded regardless of the level of need.  For a review of the judicial deliberative privilege, see an earlier PoP post discussing the privilege and its recent adoption by the Massachusetts Supreme Court.