The Deliberative Process Privilege in Congress

The Deliberative Process Privilege in Congress

April 16, 2024
The Deliberative Process Privilege in Congress
The executive branch sometimes invokes the deliberative
The DPP does not apply to materials that simply state or
process privilege (DPP) in response to requests for
explain a decision already made, unless that information is
information from Congress and the public, both in litigation
inextricably intertwined with the deliberative portions of
and, with respect to the former, in the course of
the materials such that disclosure would effectively reveal
congressional investigations. The DPP is recognized
executive deliberations. The Supreme Court has clarified
primarily as a common-law privilege, although some courts
that although the DPP does not protect post hoc materials
have concluded that in certain circumstances it may contain
explaining an action already made, the privilege does
“constitutional dimension[s].”
protect “in-house drafts that proved to be the agencies’ last
word” on a particular course of action. Put another way,
The Executive frequently invokes the DPP to limit the
even if an agency draft turns out to reflect the agency’s
disclosure of “documents reflecting advisory opinions,
final decision, that draft may still be protected from
recommendations, and deliberations comprising part of a
disclosure by the DPP if at the time it was written it was
process by which governmental decisions and policies are
predecisional and deliberative.
formulated.” Put another away, the DPP protects from
compulsory disclosure government materials that “would
The DPP does not protect factual information; agencies
not be available by law to a party other than an agency”
generally may not withhold research and data that form the
during litigation against that agency.
underlying basis for a proposed rule or policy. In addition,
the DPP does not protect entire documents. Rather, the
Over time, the Executive has developed a broad view of the
executive branch must disclose non-privileged information
DPP through agency practice, executive orders, Department
that can be reasonably segregated from privileged
of Justice (DOJ) Office of Legal Counsel opinions, and
information in the requested materials.
White House Counsel directives, justifying the privilege as
a means of encouraging candor and honest debate during
The DPP is not an absolute privilege: even when the
agency decisionmaking.
privilege applies to a given document or communication, it
can be overcome by a sufficient showing of need. Further,
The Executive often invokes the DPP before Congress, and
the D.C. Circuit has explained that the privilege “disappears
particularly in congressional oversight investigations,
altogether when there is any reason to believe government
because it gives protection to the very decisionmaking
misconduct has occurred,” because using the privilege to
process that Congress is frequently trying to understand.
shield such information would not serve “the public’s
This In Focus discusses three pertinent aspects of the DPP:
interest in honest, effective government.”
what it is, what materials it may cover, and how Congress
may choose to respond to its invocation.
Finally, the DPP does not prevent an agency that chooses
not to invoke the privilege from voluntarily disclosing
Elements and Scope of the Privilege
information.
The DPP applies to agency documents and communications
that are predecisional—that is, created prior to the agency
Asserting the Privilege Before Congress
reaching its final decision—and deliberative, meaning
The Executive has invoked the DPP during congressional
related to the thought process of executive officials.
investigations. These invocations are made both during
Predecisional and deliberative materials may include
hearings before congressional committees and in written
information on how and why an agency adopted a certain
response to requests or subpoenas. Sometimes the privilege
policy choice and records that disclose an agency’s thought
is not expressly invoked, and the Executive may instead cite
process, including materials developed in the course of
confidentiality concerns or other interests as a reason for
decisionmaking, like leadership and staff recommendations
withholding the requested information.
and proposals, draft rules, and internal policy debates.
The D.C. Circuit has described the DPP as “primarily a
The Supreme Court has recognized that a record is
common law privilege,” but has stated that “aspects of the
deliberative if “prepared to help the agency formulate its
privilege, for example the protection accorded the mental
position.” Only predecisional material can be deliberative.
processes of agency officials, . . . have roots in the
A record reflects a “final decision” and is therefore not
constitutional separation of powers.” As a matter of
predecisional (and thus not protected by the DPP) only
practice, Congress has sometimes sought to constrain the
where the material reflects “the consummation” of the
invocation of the DPP in congressional investigations, such
decisionmaking process and not a “merely tentative”
as through the promulgation of chamber rules. The rules
position. A predecisional document is one that leaves
governing several House committees of the 118th Congress
decisionmakers “free to change their minds.”
provide that claims of common-law privileges, which
committees generally view as including the DPP, apply
“only at the discretion of the Chair, subject to appeal to the
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The Deliberative Process Privilege in Congress
Committee.” Some committees append instructions to their
had not invoked the DPP except “in the Committee room,”
subpoenas that bar the use of the DPP or impose conditions
which he claimed was “not the appropriate place.” He
on its use, such as requiring a privilege log to be furnished.
cautioned that the privilege could be asserted only in
writing, before the subpoena deadline.
Responding to the Privilege
Congress has several options to respond to the invocation of
Scope Challenge
the DPP. If it believes invocation of the privilege is
If Congress does not challenge invocation of the DPP
unjustified, it can reject the assertion. Congressional
outright, it might instead assert that the Executive applied
committees have previously contended that the DPP is not a
the privilege too expansively. The DPP protects material
valid reason to withhold information and have sought to
that is predecisional and deliberative, and even then, it does
enforce their investigatory demands in the courts or through
not protect entire documents. The Executive must disclose
criminal contempt of Congress procedures.
non-privileged information that it can reasonably segregate
from privileged information. If the Executive does not
Litigation was the route taken by the House Oversight
appear to conform to this requirement, Congress could
Committee during conflicts with federal agencies involving
challenge the scope of the material withheld.
the DPP in 2012 and 2019. In the former example, a federal
district court in Committee on Oversight and Government
In the March 2023 hearings before the Subcommittee on
Reform v. Holder concluded that the committee was entitled
Responsiveness and Accountability to Oversight, the same
to contested information it sought that was not deliberative.
member who challenged the form of the assertion of the
The court reached this conclusion only after it first
DPP noted that, although the subcommittee had requested
reiterated the D.C. Circuit’s holding that, as a matter of
that 26 sets of documents be prioritized for production in
principle, the DPP may be invoked by federal agencies
unredacted form, the Department of Education had
during a congressional investigation because “some
produced only 2 such sets. Though the member stopped
aspects” of the privilege “have roots in the constitutional
short of categorically asserting that the department
separation of powers.” In 2019, the Committee sued then-
inappropriately applied the DPP to the remaining 24 sets
Attorney General William Barr and then-Secretary of
(and Secretary Rodriguez did not confirm with certainty
Commerce Wilbur Ross after the two Cabinet members
that the remaining sets were indeed being held back for
invoked the DPP in response to subpoenas the committee
privilege purposes), the member urged the Secretary to
issued seeking documents regarding the agencies’ decisions
review the common-law elements of the privilege,
to add a question pertaining to citizenship to the 2020
including the requirements that the material be
Census. The parties then agreed to terms of compliance
predecisional and deliberative, to ensure it was being used
with the subpoenas after the change in presidential
“in good faith.”
Administration and jointly stipulated to dismiss the case.
Showing of Need
Short of simply rejecting the privilege, a committee or
Courts have recognized that the DPP is supposed to give
Member may opt to respond in several ways. If the political
way where Congress has an adequate oversight interest.
branches disagree on the applicability of the privilege, they
When a committee is investigating “allegations of
could negotiate its scope or even agree to limit the audience
misconduct,” the DPP may “disappear altogether.” Who
to which the requested materials are made available.
determines when the oversight interest is “adequate” and
whether “allegations of misconduct” are credible are
Recent practice illustrates some of the other options at
Congress’s disposal for responding to an assertion of the
matters that will continue to be debated and, at times,
litigated.
DPP. This includes making a procedural objection,
challenging the breadth or scope of the invocation, or
In the 118th Congress, the House Judiciary, Ways and
overcoming the privilege by a showing of need.
Means, and Oversight Committees published a report
asserting that invocation of the DPP by DOJ during the
Procedural Challenge
committees’ investigations into the Hunter Biden
Congress may object to the form or process by which the
prosecution “lack[ed] merit,” because the DPP’s protections
executive asserts the DPP. At common law, for example,
“disappear[] altogether when there is any reason to believe
the DPP must be asserted in writing and only by the head of
government misconduct occurred.”
the agency invoking the privilege.
Congress may urge the Executive to produce documents it
The House Judiciary Committee’s Subcommittee on
withholds under the DPP, but whether the Executive
Responsiveness and Accountability to Oversight held two
complies—and what Congress can do if the Executive does
hearings in March 2023 in which representatives of various
not—will vary. Ultimately Congress may choose to litigate
executive agencies, including the Department of Education,
in an attempt to compel compliance; it could also leverage
were called to testify about what the subcommittee’s
its institutional powers over the executive such as through
majority had characterized as the agencies’ deficient
the appropriations process; or, it may vote to hold a
compliance with congressional requests for records. When
subpoena recipient in contempt.
Assistant Secretary of Education Roberto Rodriguez
surmised that the department’s withholding of certain
Clay Wild, Legislative Attorney
records may be due to protections afforded to it by the DPP,
one subcommittee member stated his objection to the form
IF12634
offered by the department. He stated that the department
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The Deliberative Process Privilege in Congress

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