Civil Justice Warriors

Whose Documents Are They Anyway?

The Per Se “Government Misconduct” Exception to the Deliberative Process Privilege

As with any privilege, proper application of the deliberative process privilege depends on an understanding of its underlying rationale. Courts strive to interpret such privileges as narrowly as possible so as not to unduly burden the judicial search for truth. [See United States v. Nixon, 418 U.S. 683, 710 (1974) (asserting that privileges are not “lightly created or expansively construed”); see also Redland Soccer Club v. Dep’t of the Army, 55 F.3d 827, 856 (3d Cir. 1995) (“[D]eliberative process privilege, like other executive privileges, should be narrowly construed.”).]

Only relatively and recently recognized, the per se “government misconduct” exception to executive privilege captures an important limitation of the deliberative process privilege. Although In re Sealed Case (Espy), 121 F.3d 729, 745-46 (D.C. Cir. 1997) is now the authoritative case on this point, due partly to the preeminent position of the D.C. Circuit in governmental privilege law, the per se governmental misconduct exception appears to have originated in two district court cases. [See In re Franklin Nat’l Bank Sec. Litig., 478 F. Supp. 577, 582 (E.D.N.Y. 1979); Bank of Dearborn v. Saxon, 244 F. Supp. 394, 401–03 (E.D. Mich. 1965).]

The D.C. Circuit and the circuits following its lead have been clear that “when a plaintiff’s cause of action turns on governmental intent[,] . . . the privilege [becomes] a nonsequitur. In re Subpoena Duces Tecum Served on Comptroller of Currency, 145 F.3d 1422, 1424 (D.C. Cir. 1998). Specifically, the misconduct exception negates the deliberative privilege when the government is defending a Title VII suit or a suit based on constitutional claims of discrimination. Id.; see also Waters v. U.S. Capitol Police Bd., 216 F.R.D. 153 (D.D.C. 2003).

Courts considering the per se government misconduct exception have consistently held that the deliberative process privilege requires a lower threshold of need to be overcome, and “disappears altogether when there is any reason to believe government misconduct has occurred. In re Sealed Case (Espy), 121 F.3d 729, 745-46 (D.C. Cir. 1997); Williams v. City of Boston, 213 F.R.D. 99, 102 (D. Mass. 2003) (holding deliberative process privilege not applicable to protect government report investigating plaintiff’s allegations in civil rights action against city police department because, inter alia, “it offends basic notions of openness and public confidence in our system of justice” to shield such a report) quoting Soto v. City of Concord, 162 F.R.D. 603, 612 (N.D. Cal. 1995); Alexander v. FBI, 186 F.R.D. 170, 177 (D.D.C. 1999) (holding it pointless to apply normal balancing test when governmental misconduct is at issue because “the public value of protecting identifiable governmental misconduct is negligible”); Dominion Cogen D.C., Inc. v. District of Columbia, 878 F. Supp. 258, 268 (D.D.C. 1995) (holding deliberative process privilege inapplicable since the “deliberative process itself [is] directly in issue”); Brown v. City of Detroit, 259 F. Supp. 2d 611, 623 (E.D. Mich. 2003) (describing the possibility of governmental misconduct as a situation where the privilege is waived).

The Fifth Circuit has recognized the importance of the public’s interest in exposing public corruption in the retaliation first amendment context holding such instances are matters of public concern and outweigh the government’s interest in efficiency. [See Teague v. City of Flower Mound, 179 F.3d 377, 381 (5th Cir. 1999); Brawner v. City of Richardson, 855 F.2d 187, 191-92 (5th Cir. 1988) (“The disclosure of misbehavior by public officials is a matter of public interest and therefore deserves constitutional protection, especially when it concerns the operation of a police department”).]

Does the Government Acknowledge the Per Se Exception?

In two recent cases, the government has disputed the existence of this per se exception to the deliberative process privilege, instead arguing that the possibility of governmental misconduct should merely be one factor to weigh when deciding whether to override the privilege. In support of this argument, the government has asserted that a close reading of the leading D.C. Circuit case on the subject, In re Sealed Case, shows that this is the proper approach. But two district judges have now rejected this argument. [Chaplaincy of Full Gospel Churches v. Johnson, 217 F.R.D. 250, 257 n.7 (D.D.C. 2003, rev’d on other grounds sub. nom); In re England, 375 F.3d 1169 (D.C. Cir. 2004); Alexander, 186 F.R.D. at 177–78.]

As the Epsy Court observed, “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.’ [Epsy, 121 F.4d at 737-8 citing Texaco Puerto Rico, Inc. v. Department of Consumer Affairs, 60 F.3d 867, 885 (1st Cir.1995); In re Comptroller of the Currency, 967 F.2d at 634 (“the privilege may be overridden where necessary … to ‘shed light on alleged government malfeasance’”). Further citing Gerald Wetlaufer, Justifying Secrecy: An Objection to the General Deliberative Privilege, 65 IND. L.J. 845, at 852 n.25 & 855 (listing cases)(1990).]

Congressman Jim Sensenbrenner, former Chair of the House Judiciary Committee, released a memo showing that an assertion of executive privilege by President Obama was illegal stating: “The President’s assertion of executive privilege is an illegal attempt to avoid responsibility for the Department’s misconduct.” [Memo From: F. James Sensenbrenner, Former Chairman of the House Judiciary Committee, Washington, Jun 20, 2012.] The Congressman continued: “This is clear evidence of a cover-up. Whether that cover-up was institution-wide or limited to a few individuals who failed to come forward is unclear. The Committee on Oversight and Government Reform subpoenaed the documents relevant to this cover-up, and the White House cannot legally assert the deliberative process privilege to hide evidence of the Department’s wrongdoing.”

However, bare allegations of misconduct are not enough. Chaplaincy of Full Gospel Churches, 217 F.R.D. at 257–58, holding that plaintiffs provided adequate factual basis to believe government misconduct occurred, but hastening to add that this determination does not constitute a judgment as to merits of plaintiff’s case. [See also Hinckley v. United States, 140 F.3d 277, 285–86 (D.C. Cir. 1998) (same); Judicial Watch of Fla. v. U.S. Dep’t of Justice, 102 F.; Supp. 2d 6, 15–16 (D.D.C. 2000) (holding that bare allegations of government misconduct were insufficient to overcome privilege); Walker v. City of New York, No. 98 Civ. O467(HB), 1998 WL 391935, at *1 (S.D.N.Y. July 13, 1998) (refusing to apply the government misconduct exception because judge found no indication of such misconduct after in camera review of evidence).]