The opinion of the court was delivered by: Gladys Kessler, United States District Court Judge.
On July 15, 2003, the Special Master issued Report and Recommendation #123 ("R&R #123") recommending that the Court grant in part and deny in part Joint Defendants'*fn1 First Motion to Compel Certain Documents Listed on Plaintiff's Executive Office of the President and Presidential Records Act Privilege Logs ("Motion to Compel"). Upon consideration of R&R #123, the Government's Partial Objection, Joint Defendants' Opposition, the entire record herein, and for the reasons set forth below, the Court (1) adopts in part and remands in part R&R #123, and (2) sustains in part and overrules in part the Government's Partial Objection.
In their Motion to Compel, Joint Defendants seek 122 documents. The Government asserts that all of them are protected by the deliberative process privilege.*fn2 As described more fully below, in order for the privilege to apply, a document must be both"pre-decisional" and"deliberative." As to several documents, the Special Master found that the Government failed to establish one or the other of these elements and he therefore recommended that they be released, in whole or in part. As to other documents which he did find privileged, he recommended release on the ground that the Joint Defendants' need for them outweighs the Government's privilege.*fn3
A. The Deliberative Process Privilege
The deliberative process privilege allows the government to withhold"confidential intra-agency advisory opinions disclosure of which would be injurious to the consultative functions of government." Taxation With Representation Fund v. Internal Revenue Service, 646 F.2d 666, 677 (D.C. Cir. 1981)(internal quotation omitted).*fn4 These materials are typically"recommendations, draft documents, proposals [and] suggestions." Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). The Government bears the burden of establishing the applicability of the privilege. Id. at 861.
1. Policy Purposes Served by the Privilege
The deliberative process privilege serves several important public policy purposes. See Coastal States, 617 F.2d at 866. It assures that subordinates within an agency will not be chilled from giving their uninhibited opinions and recommendations out of fear that they will later be subject to public criticism or ridicule. Id. In this way, the privilege fosters"creative debate and candid consideration of alternatives within an agency, and, thereby, improves the quality of agency policy decisions." Russell v. Department of the Air Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982)(internal quotation omitted). The privilege also helps prevent the"premature disclosure of proposed policies." Coastal States, 617 F.2d at 866. Finally, it"protect[s] against confusing issues and misleading the public," which could result if documents were disseminated that suggested"reasons and rationales for a course of action which were not in fact the ultimate reasons for the agency's action." Id. (citation omitted).
2. Requirements for Application of the Privilege
Despite the important policy considerations that underlie the deliberative process privilege, the courts have held that it"should be construed as narrowly as consistent with efficient Government operation." Taxation With Representation Fund, 646 F.2d at 677 (quoting EPA v. Mink, 410 U.S. 73, 87 (1973)). Just as it is important to protect agency decisionmaking,"the courts have recognized a strong public interest in the disclosure of reasons that do supply the basis for an agency policy actually adopted." Id. at 678 (emphasis added). Therefore, the courts have been careful to apply the privilege only where its central purpose,"to prevent injury to the quality of agency decisions," National Labor Relations Board v. Sears, Roebuck & Co., 421 U.S. 132, 152 (1975), is truly served.
To protect both agency decisionmaking and the public interest in disclosure, the courts have articulated two basic requirements for assertion of the privilege. First, in order to be protected, a document must be"predecisional," meaning that"it was generated before the adoption of an agency policy." Coastal States, 617 F.2d at 866. Since post-decisional documents"often represent the agency's final position on an issue, or explain such a position" Taxation With Representation Fund, 646 F.2d at 677, the quality of agency decisionmaking is unlikely to be harmed by disclosure of communications that explain the basis for a decision that has already been reached"as long as prior communications and the ingredients of the decisionmaking process are not disclosed." Sears, 421 U.S. at 151.
In this R&R, the Special Master recommended that some of the challenged documents be released on the ground that they are post decisional, not pre-decisional. For example, he recommended release of page 2304 of Challenge Document ("CD") #60*fn5 because it appears to"state the final position of the Administration" and also"appears to have been created to explain a decision already made." R&R #123 at 105. Similarly, he recommended release of pages 2244-2252 of CD #62*fn6 because they compare a bill with"'the administration's position' on certain issues," and provide the rationale for that position. R&R #123 at 60.
The Government objects to these recommendations, as well as others based on the Special Master's finding that the documents are post-decisional.*fn7 As to CD #60, the Government asserts that the Special Master mis-identified the"operative'decision' for purposes of deciding whether the document [constituted] pre decisional deliberations." Gov't App. 3. As to CD #62, the Government insists that the document does not explain the Administration's position. The Court has considered the Government's arguments as to all the documents found by the Special Master to be post-decisional and finds them lacking in merit. Consequently, R&R #123 is adopted with respect to all such documents.
Second, in order to be protected, a document must also be"deliberative," meaning that"it reflects the give-and-take of the consultative process." Coastal States, 617 F.2d at 866. Deliberative material tends to be advisory and to"contain opinion rather than mere fact." Brinton v. Department of State, 636 F.2d 600,604 (D.C. Cir. 1980).*fn8 The Special Master recommended that portions of some of the challenged documents be released on the ground that they do not contain deliberative material. For example, he recommended release of pages 2735-2737 of CD #72*fn9 because"these pages contain administrative, and not deliberative, exchanges among agency employees." R&R #123 at 48. Similarly, he recommended release of pages 0179-0181 of CD #123*fn10 because these pages"contain only nondeliberative communications among agency employees." Id. at 95. As to these documents, and others found non-deliberative, the Government ...