A. Deliberative Process Privilege

One frequently cited Exemption 5 privilege is that which protects the deliberative process. This privilege protects “documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.”49

The exemption is intended to preserve the quality of agency decisions by “encourage[ing] open, frank discussions on matters of policy,” “protect[ing] against premature disclosure of proposed policies before they are finally adopted,” and “protect[ing] against public confusion that might result from disclosure of reasons and rationale that were not, in fact, ultimately the grounds for an agency's action.”50

An agency withholding records under this privilege has the burden of proving that the materials are both “predecisional and deliberative,” so you should challenge both points on appeal.51 Additionally, you may argue that — even if the privilege might arguably apply — the government has waived its right to invoke Exemption 5.

49 Nat’l Labor Relations Bd., 421 U.S. at 150 (quoting Stiftung v. V.E.B., 40 F.R.D. 318, 324 (D.D.C. 1966) (internal quotation marks omitted)).

50 Judicial Watch, Inc., 435 F.Supp.2d at 87-88.

51 Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504, 512 (D.C. Cir. 2011).