The Deliberative Process Privilege and the Public Sector

Public Sector.BlogWe all know that a high degree of transparency is required of government employees, and most often by state and federal law. There are exceptions, and one is to be able to deliberate on a decision and not provide information on that deliberation until the process has been completed and the decision is made.

This is called the deliberative-process privilege, and it comes from English law. It became the law in the United States in 1938 when the Supreme Court protected the mental processes of government decision-makers in Morgan v. United States (U.S. 1938). The Supreme Court ruled that the Secretary of Agriculture did not have to share his thinking on setting prices for some crops so long as he held hearings and took the matter under advisement. While the privilege is based in the executive privilege, it also exists where there is separation of powers and a need for confidential communication between elected officials and those who advise and assist them in performing their duties. United States v. Nixon (U.S. 1974).

While many lower courts have treated the mental process as constitutional, recent decisions treat the privilege as common-law-based. The privilege can pave the way for candid internal government communications, protect the public from confusion when a policy has not yet been decided, or protect the decision-making process so public officials are judged on their actions and not their thoughts.

Of course, what this means is that only the conversations and information that led to the decision is protected, and not conversation or information that followed the decision. Once the decision is made, it must be communicated to all who request it. Now, if that decision quotes or refers to some of the deliberation before the decision was made, that quote or reference would be part of the open record as well. 

Do not forget to consider the deliberative process privilege when deciding what information must be provided under your state open records law. If you have questions, give us a call. We want to make sure you correctly identify elements of the privilege and know when it is useful.