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Cobell v. Norton

February 5, 2003


The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge


This matter comes before the Court on plaintiffs' consolidated motion (1) for an order pursuant to Rule 53(a)(2) of the Federal Rules of Civil Procedure adopting Special Master Alan Balaran's May 11, 1999 opinion and holding that the deliberative process privilege and work product doctrine will not shield from disclosure material related to the administration of the IIM Trust, (2) to compel the testimony of deponents that defendants directed not to answer questions on the basis of deliberative process privilege, and (3) for sanctions pursuant to Rule 37(a)(4)(A), which was filed on December 30, 2002. Also before the Court are five motions relating to the application of the deliberative process privilege to a sealed document attached as an exhibit to the August 8, 2002 Special Report of the Court Monitor.

Each of the motions presently before the Court turns on whether information for which defendants have asserted privilege falls within the scope of the deliberative process privilege.

Accordingly, before turning to the individual assertions of privilege, the Court will examine the contours of the deliberative process privilege in order to determine the scope of materials that it protects.


A recent case from this Circuit provides a useful overview of the deliberative process privilege: The most frequent form of executive privilege raised in the judicial arena is the deliberative process privilege; it allows the government to withhold documents and other materials that would reveal "advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." Although this privilege is most commonly encountered in Freedom of Information Act ("FOIA") litigation, it originated as a common law privilege. Two requirements are essential to the deliberative process privilege: the material must be predecisional and it must be deliberative. Both requirements stem from the privilege's "ultimate purpose[, which] . . . is to prevent injury to the quality of agency decisions" by allowing government officials freedom to debate alternative approaches in private. The deliberative process privilege does not shield documents that simply state or explain a decision the government has already made or protect material that is purely factual, unless the material is so inextricably intertwined with the deliberative sections of documents that its disclosure would inevitably reveal the government's deliberations.

The deliberative process privilege is a qualified privilege and can be overcome by a sufficient showing of need. This need determination is to be made flexibly on a case-by-case, ad hoc basis. "[E]ach time [the deliberative process privilege] is asserted the district court must undertake a fresh balancing of the competing interests," taking into account factors such as "the relevance of the evidence," "the availability of other evidence," "the seriousness of the litigation," "the role of the government," and the "possibility of future timidity by government employees." For example, where there is reason to believe the documents sought may shed light on government misconduct, "the privilege is routinely denied," on the grounds that shielding internal government deliberations in this context does not serve "the public's interest in honest, effective government."

In re Sealed Case, 121 F.3d 729, 737-38 (D.C. Cir. 1997) (citations and footnotes omitted). An earlier case noted that the rationale for the privilege stems from the recognition by the courts "that the quality of administrative decision-making would be seriously undermined if agencies were forced to operate in a fish bowl." Dow Jones & Co. v. Dep't of Justice, 917 F.2d 571, 573 (D.C. Cir. 1990).

This Court has stated that the purpose of the privilege is threefold: (1) "protect[ing] candid discussions within an agency," (2) "prevent[ing] public confusion from premature disclosure of agency opinions before the agency established its final policy," and (3) "protect[ing] the integrity of an agency's decision[, in that] the public should not judge officials based on information they considered prior to issuing their final decisions." Alexander v. FBI, 192 F.R.D. 50, 55 (D.D.C. 2000) (citing Judicial Watch v. Clinton, 880 F. Supp. 1, 12 (D.D.C. 1995)). It is important to keep these purposes in mind when evaluating the scope of information that the privilege should protect, because it stands to reason that its scope should not exceed the scope of the purposes that it serves.

In order to assert the privilege, the government must establish two elements. First, the government must establish that the information for which protection is sought is "predecisional," that is, that it was "prepared in order to assist an agency decisionmaker in arriving at his decision, rather than to support a decision already made." Petroleum Information Corp. v. U.S. Dep't of the Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992) (quoting Renegotiation Bd. v. Grumman Aircraft, 421 U.S. 168, 184 (1975)). "Accordingly, to approve exemption of a document as predecisional, a court must be able to pinpoint an agency decision or policy to which the document contributed." Senate of Puerto Rico v. U.S. Dep't of Justice, 823 F.2d 574, 585 (D.C. Cir. 1987) (internal quotation omitted). The primary reason for denying protection to information generated after the adoption of agency policy is to prevent the creation of "secret law" that is unavailable to the public. See Tax Analysts v. IRS, 117 F.3d 607, 617 (D.C. Cir. 1997) ("A strong theme of our [deliberative process] opinions has been that an agency will not be permitted to develop a body of 'secret law' . . . .") (quoting Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)). Additionally, "even if the document is predecisional at the time it is prepared, it can lose that status if it is adopted, formally or informally, as the agency position on an issue or is used by the agency in its dealings with the public." Coastal States, 617 F.2d at 866.

Second, the government must show that the information at issue was "deliberative" in nature. Implicit in the name of the privilege is the assumption that there must have been a process of decision-making, in which the information at issue played a role. See Coastal States, 617 F.2d at 868 ("It is also clear that the agency has the burden of establishing what deliberative process is involved, and the role played by the documents in issue in the course of that process.") (citing Vaughn v. Rosen, 523 F.2d 1136, 1146 (D.C. Cir. 1975)). It is not enough to show that the information was conveyed during the deliberative process; instead, the statement or document must have been "a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters. Put another way, pre-decisional materials are not exempt merely because they are pre-decisional; they must also be a part of the agency give-and-take of the deliberative process by which the decision itself is made." Vaughn, 523 F.2d at 1144. Case law from the D.C. Circuit points to two non-conclusive factors that may assist courts in determining whether or not an opinion or recommendation is "deliberative": (1) the "nature of the decisionmaking authority vested in the officer or person issuing the disputed document" and (2) "the relative positions in the agency's chain of command occupied by the document's author and recipient." Senate of Puerto Rico, 823 F.2d at 867 (internal quotations and citations omitted). Thus, for example, "[i]ntra-agency memoranda from 'subordinate' to 'superior' on an agency ladder are likely to be more 'deliberative' in character than documents emanating from superior to subordinate." Schlefer v. United States, 702 F.2d 233, 238 (D.C. Cir.1983) (citing cases). Conversely, a memorandum from a superior agency official to a subordinate official is more likely not to be considered "deliberative." Id.

If the government establishes these two elements with respect to the statement or document at issue, it has demonstrated the existence of the deliberative process privilege. It should be noted, however, that the privilege is not absolute but qualified. See In re Sealed Case, 121 F.3d at 737 ("The deliberative process privilege is a qualified privilege and can be overcome by a sufficient showing of need."); Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395, 404 (D.C. Cir. 1984

("[U]nlike the absolute state secrets privilege, [the deliberative process privilege] is relative to the need demonstrated for the information."). Accordingly, once the elements of the privilege have been met, the burden shifts to the party opposing the privilege to establish that its need for the information outweighs the interest of the government in preventing disclosure of the information. See In re Subpoena Duces Tecum Served on the Office of the Comptroller of the Currency, 145 F.3d 1422, 1425 (D.C. Cir. 1998) (clarifying that if the privilege is determined not to apply, the balancing test is unnecessary). In this Circuit, courts balance the interests by using a five-factor test derived from Schreiber v. Society for Savings Bancorp, Inc., 11 F.3d 217 (D.C. Cir. 1993), in which the D.C. Circuit explained that "[a]t a minimum, the court must consider: (i) the relevance of the evidence sought to be protected; (ii) the availability of other evidence, (iii) the 'seriousness' of the litigation, (iv) the role of the government in the litigation, and (v) the possibility of future timidity by government employees who will be forced to recognize that their secrets are violable." Id. at 220-21.

It has been said that "general guidelines are of limited utility in this area, for the deliberative process privilege is so dependent upon the individual document and the role it plays in the administrative process." Senate of Puerto Rico, 823 F.2d at 867. Nevertheless, courts have established some useful guidelines regarding the sort of information that is likely to fall within the scope of the privilege, as well as the sort of information that is likely to fall outside its bounds. Thus, it is well-established that discussions of objective facts, as opposed to opinions or recommendations, are not protected by the privilege. See, e.g., In re Subpoena Served Upon Comptroller of Currency and Sec. of Bd. of Governors of Fed. Reserve Sys., 967 F.2d 630, 634 (D.C. Cir. 1992) ("The bank examination privilege, like the deliberative process privilege, shields from discovery only agency opinions or recommendations; it does not protect purely factual material.") (citing EPA v. Mink, 410 U.S. 73, 90 (1975)). However, even factual information may be protected if "the manner of selecting or presenting those facts would reveal the deliberative process, or if the facts are 'inextricably intertwined' with the policymaking process." Ryan v. Dep't of Justice, 617 F.2d 781, 790 (D.C. Cir. 1980) (citing Montrose Chem. Corp. v. Train, 491 F.2d 63, 68 (D.C. Cir. 1974) and Soucie v. David, 448 F.2d 1067, 1078 (D.C. Cir. 1971)). "But this exception cannot be read so broadly as to undermine the basic rule; in most situations factual summaries prepared for informational purposes will not reveal deliberative processes and hence should be disclosed." Paisley v. CIA, 712 F.2d 686, 699 (D.C. Cir. 1983), vacated in part on other grounds, 724 F.2d 201 (D.C. Cir. 1984). Moreover, if the factual material is severable from the information protected under the privilege, the former must be disclosed. See, e.g., United States v. Exxon Corp., 87 F.R.D. 624, 636-37 (D.D.C. 1980) (ordering the Department of Energy to excise factual materials from information protected by the privilege and provide the factual information to the opposing party).

Other general conclusions may also be derived from the case law. Drafts of agency orders, regulations, or official histories are routinely deemed to be protected by the privilege. See, e.g., Dudman Communications Corp. v. Dep't. of the Air Force, 815 F.2d 1565 (D.C. Cir. 1987) (protecting draft manuscript of official history of Air Force involvement in Vietnam); Arthur Andersen & Co. v. IRS, 679 F.2d 254 (D.C. Cir. 1982) (protecting draft of IRS revenue ruling); Pies v. IRS, 668 F.2d 1350 (D.C. Cir. 1982) (protecting draft of proposed IRS regulations). Additionally, the D.C. Circuit has stated that the privilege covers recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency. Documents which are protected by the privilege are those which would inaccurately reflect or prematurely disclose the views of the agency, suggesting as agency position that which is as yet only a personal position. To test whether disclosure of a document is likely to adversely affect the purposes of the privilege, courts ask themselves whether the document is so candid or personal in nature that public disclosure is likely in the future to stifle honest and frank communication within the agency; "Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process." We also ask whether the document is recommendatory in nature or is a draft of what will become a final document, and whether the document is deliberative in nature, weighing the pros and cons of agency adoption of one viewpoint or another. Coastal States, 617 F.2d at 866 (quoting United States v. Nixon, 418 U.S. 683, 705 (1974)).


On August 8, 2002, Court Monitor (now Special Master-Monitor) Joseph S. Kieffer III ("the Monitor") filed a special report with this Court. *fn1 Submitted with the Special Report was a document located at Attachment C that was filed with the Court under seal ("Attachment C"). On October 18, 2002, in response to motions filed by both parties, the Court directed the Monitor to provide counsel for the parties with copies of Attachment C under seal. The Court also ordered counsel to honor the seal on the document, limiting access to Attachment C and any communications about it only to personnel in their offices who would be required to view or discuss the document in order to prepare submissions by counsel. Finally, the Court ordered the parties to file any portion of their future submissions to the Monitor that referred to the content of Attachment C under seal.

In a letter dated October 21, 2002, the Monitor directed the parties to file briefs addressing the further disposition of copies of Attachment C. Defendants filed their brief under seal on October 24, asserting that Attachment C fell within the scope of the deliberative process privilege. *fn2 The next day, plaintiffs filed a reply brief under seal requesting that the Court unseal Attachment C. On November 9, defendants filed a further response in support of their request that Attachment C remain sealed. Defendants filed two further motions requesting that the Court strike references to the content of Attachment C that were ...

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