Campaign Legal Center v. DOJ - FOIA Postscript to Department of Commerce v. New York (Part I)
Bernard Bell, Yale J. on Reg., Notice & Comment Blog, Nov. 27, 2022
Can an agency properly invoke the deliberative process privilege to shield internal deliberations over a sham memo requesting that another agency take action, knowing that the recipient agency will use the request to hide the real reason for its contemplated action? Earlier this year, the D.C. Circuit answered in the affirmative. Campaign Legal Center v. DOJ, 34 F.4th 14 (D.C. Cir. 2022). The case might be described as the Freedom of Information Act (“FOIA”) addendum to Department of Commerce v. New York, —U.S. —, 139 S. Ct. 2551 (2019). This series of posts discusses the rarely referenced “government misconduct” exception to the deliberative process privilege and its applicability to the communications sought in Campaign Legal Center v. DOJ.
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