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).

Evidentiary Privileges Protect DoJ Legal Memo Allegedly Supporting U.S. Targeted Killings 2

In an opinion issued on January 2, 2013, Judge Colleen McMahon of the U.S. District Court for the Southern District of New York ruled that the Justice Department may withhold from disclosure a legal memorandum prepared for Attorney General Eric Holder that allegedly provided legal support for a U.S. program targeting terrorists, including U.S.

Staff Legal Memo to Attorney General Holder Privileged from FOIA Request

Staff Legal Memo to Attorney General Holder Privileged from FOIA Request

citizens, for assassination.  Judge McMahon held that the attorney-client and deliberative process privileges prevent disclosure even though several senior executive officials publicly commented on the strong legal authority supporting the program.  But Judge McMahon’s ruling, with citations ranging from the Federalist Papers to the Magna Charta, seriously questioned “the legality of killings unilaterally authorized by the Executive that take place otherwise than on a ‘hot’ field of battle.” The New York Times Co. v. U.S. Dep’t of Justice, 2013 WL 20543 (S.D.N.Y. Jan. 2, 2013).  Here is a link to the Court’s opinion.

FOIA Requests

The case arises from FOIA requests by two New York Times reporters and the ACLU.  These requests essentially sought documents containing the legal justification for the Obama Administration’s decision that the U.S. Government may lawfully target for killing persons, including U.S. citizens, suspected of having ties to al Qaeda or other terrorists groups.

The broad requests were effectively reduced to two legal memoranda.  The first was a legal memorandum prepared for Attorney General Eric Holder by the Justice Department’s Office of Legal Counsel (OLC).  According to DoJ, the memo contained “confidential legal advice to the Attorney General, for his use in interagency deliberations, regarding a potential military operation in a foreign country.” The second memo was from Legal Counsel to the Joint Chiefs of Staff to the National Security Advisor Legal Advisor containing legal advice regarding the effect of U.S. citizenship on targeting enemy belligerents.

Public Comments Constitute Waiver?

The Times and ACLU conceded these memoranda were privileged under the deliberative process privilege and the attorney-client privilege.  But they argued that the Government had waived these privileges due to senior executive-branch officials’ public comments on the legal basis underlying the Government’s ability to target off-the-battlefield individuals, including U.S. citizens.

The Times and ACLU cited a plethora of comments by high-level executive-branch officials, including President Obama’s comments in the Google Hangout online forum and to Jay Leno during his October 25, 2011 appearance on the Tonight Show.  In speaking with Leno, President Obama stated that U.S. citizen Anwar Al-Awlaki “was probably the most important al Qaeda threat that was out there after bin Laden was taken out, and it was important that, working with the Yemenis, we were able to remove him from the field.”

The most explicit comments, however, came from Attorney General Eric Holder during a March 5, 2012 speech he gave at the Northwestern University School of Law.  In this speech, General Holder discussed at length the legal justifications for the Government’s ability to use lethal force in a foreign country against a U.S. citizen associated with al Qaeda and actively planning to kill Americans.

Law and Order

The court correctly held that the Government waives the deliberative process privilege only when a predecisional document has been adopted as a final policy.  And the adoption of a predecisional document such as a legal memorandum occurs only where the agency expressly adopts or incorporates it as a final opinion.

The court acknowledged that the various public statements clearly reference a legal opinion that was “performed by someone for someone.”  But the court correctly observed that none of the statements specifically referenced the OLC legal memorandum.

President Obama talks with the Tonight Show's Jay Leno on October 25, 2011

President Obama talks with the Tonight Show’s Jay Leno on October 25, 2011

  The Times and ACLU had nothing more than speculation that the legal analysis referenced by Attorney General Holder and others was set forth in the OLC memorandum.  And for this reason, the court held that the Government did not waive its deliberative process privilege because it neither adopted nor incorporated by reference the OLC memorandum.  The OLC memo is privileged and not subject to the Times and ACLU’s FOIA request.

As for the Joint Chiefs of Staff legal memorandum, the court reserved judgment because the Government’s supporting affidavit contained nothing more than conclusory statements that the document was predecisional and deliberative. The court declined to uphold the privilege based on these conclusory statements but provided the Government with another opportunity to correct this proof with a supplement declaration.  A ruling on this memo awaits another day.

Judge Questions Legal Authority for U.S. Targeted Killings outside the Battlefield

Although ruling that evidentiary privileges preclude disclosure of a legal memorandum that may support the U.S. program of targeting terrorists, including U.S. citizens, for killing, Judge McMahon questioned the underlying issue—whether a legal basis actually exists for the Executive Branch to authorize unilateral killings of alleged terrorists, including U.S. citizens, outside the confines of a  battlefield.

Judge McMahon, citing James Madison and French philosopher Montesquieu, noted the Founders’ tyrannical fear of placing executive and judicial power in a single individual or institution.  The judge rejected the Hamiltonian view of due process as limited to the judicial branch, and stated that the Constitutional due process right, emanating from the Magna Charta’s “by the law of the land” provision, requires the government to give notice of a proposed action and opportunity to be heard before imposing an adverse action.

Judge McMahon, citing the hundreds of thousands of American citizen deaths during the Civil War, conceded that these due process requirements do not apply to combatants actively engaged in armed combat against the United States.  But she countered that the 2011 killings of U.S. citizens Anwar Al-Awlaki, his son, Abdulrahman Al-Awlaki, and Samir Khan, were hundreds of miles away from any battlefield.  The court observed that the activities in which these three were alleged to have engaged constituted treason, but that “the Founders contemplated that traitors would be dealt with by the courts of law, not by unilateral action of the Executive.”

Acknowledging that the matter is not “straightforward,” the court stated that “there are indeed legitimate reasons, historical and legal, to question the legality of killings unilaterally authorized by the Executive that take place otherwise than on a ‘hot’ field of battle.  The judge sympathized with the Times and the ACLU and would clearly prefer the DoJ’s legal basis for the program be publicly disclosed to “allow for intelligent discussion and assessment of a tactic that (like torture before it) remains hotly debated.” The court lamented the “Alice-in-Wonderland” nature of her ruling, stating:

I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret.

N.M. Supreme Court and Executive Privilege Part II: Chief-Executive Communications Privilege 2

N.M. Governor Susana Martinez

In Republican Party of New Mexico v. New Mexico Taxation & Revenue Dep’t, 283 P.3d 853 (N.M. 2012), the New Mexico Supreme Court issued a major decision on the executive privilege by rejecting the deliberative process privilege but adopting a limited chief-executive communications privilege.  PoP analyzed the deliberative process privilege in an earlier post, and focuses here on the scope of the chief-executive communications privilege.

The Court analyzed federal decisions recognizing and applying the presidential communications privilege and the few state decisions that have adopted a privilege for gubernatorial communications, best described as a chief-executive communications privilege. The Court decided to recognize a communications-based privilege for New Mexico’s governor, but severely limited its scope.  The privilege applies only to communications involving the governor’s decisionmaking and specifically does not apply to communications related to other executive branch decisionmaking, such as communications of Cabinet-level departments.

The privilege applies to communications that are authored or solicited and received by the either the governor or an “immediate advisor.”  The Court refused to identify “how far down the chain” the privilege extends, saying only that it applies to “those communications to or from individuals in very close organizational and functional proximity to the Governor.”

The Court held that the chief executive communications privilege is qualified, meaning that an individual may overcome the privilege by a sufficient showing of need.  To make this need determination, the Court must balance the public’s interest in preserving confidentiality to promote intra-government candor against the individual’s need for the information.  The balancing test, however, only applies when the communications are sought during discovery in civil litigation and does not apply when the request comes under the state’s Public Records Act.

PoP Analysis. As noted in an earlier post, many federal and state courts confuse and conflate the deliberative process privilege and the chief executive communications privilege by labeling each the “executive privilege.”  Courts and lawyers should be mindful that the phrase “executive privilege” is a broad phase that encompasses four distinct evidentiary privileges: (1) chief-executive communications privilege; (2) deliberative process privilege; (3) law-enforcement privilege; and (4) government–informant privilege.  And it would be helpful to the bench and bar if lawyers and courts would follow the New Mexico Supreme Court’s lead and use the proper terminology when referring to these privileges.

By limiting the scope to communications by the governor and only her immediate supervisors, the Court adopted a narrow chief-executive communications privilege. And the Court properly held that the privilege is qualified only when asserted to resist discovery in civil litigation and is absolute when records are sought under a public records act request.  The reason is that individuals making a public records act request are not required to show a need for the documents while in civil discovery parties must request only documents reasonably likely to lead to the discovery of admissible evidence.  Many courts ignore this distinction, and the N.M. Supreme Court recognized it.