The Deliberative Process Privilege and Nonacquiescence
By Bernard Bell, Yale Journal on Regulation, May 2, 2020
Agencies can withhold documents pursuant to Freedom of Information Act’s (FOIA) deliberative process privilege only if the documents are both predecisional and deliberative.[1] If an agency refuses to apply a court of appeals decision outside of that Circuit, that is, if it engages in “intercircuit nonacquiescence,”[2] when is “the decision” to do so made? In other words, at what point do the internal discussions regarding the agency’s exercise of its authority in other Circuits no longer remain pre-decisional, and thus shielded from FOIA requests? The D.C. Circuit’s recent decision in Hall & Associates v. EPA, 2020 WL 1921534 (D.C. Cir. April 21, 2020), could transform resolution of such questions into issues of fact resolvable only by trial. And, presumably, such trials will require testimony from agency decision-makers, an exercise of authority trial courts have long been admonished to avoid
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