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#FOIA THREAD: #ICYMI, the Supreme Court recently voted to hear another FOIA case, the second in two years. Last year, the Court expanded the scope of Exemption 4 in Argus Leader (see https://foia.wiki/wiki/Exemption_4#Confidential) Now, the Court has taken a case on the deliberative process privilege.
The new case is U.S. Fish & Wildlife Service vs Sierra Club ( https://www.scotusblog.com/case-files/cases/u-s-fish-and-wildlife-service-v-sierra-club/). The CA9 below held that some records had to be released, but others were exempt under the deliberative process privilege. Summary of the background from @SCOTUSblog: https://www.scotusblog.com/2020/03/more-on-todays-orders-2/
What is the deliberative process privilege? It's one of the privileges incorporated into #FOIA's Exemption 5. Here's some background: https://foia.wiki/wiki/Deliberative_Process_Privilege
The deliberative process privilege is one of the most overused and abused exemptions to #FOIA. As @FOIANate and others have noted, it's frequently called the "withhold it because you want to" exemption
Earlier this week, @rcfp and a coalition of 28 newsmedia organizations filed an amicus brief in the Supreme Court, identifying the numerous ways the deliberative process privilege has been wielded to harm the public's right to know: https://www.rcfp.org/wp-content/uploads/2020/08/2020-08-03-RCFP-amicus-brief-in-Fish-and-Wildlife-Service-v.-Sierra-Club.pdf (pdf)
In 2019, federal agencies invoked Exemption 5 more than 74,000 times to withhold information.
The deliberative process privilege has been used to withhold all kinds of embarrassing, politically inconvenient, and crucial records. @dellcam documented an instance where the FCC said it had to withhold drafts of an Ajit Pai skit https://bit.ly/2WwizA8
In another instance, the State Department used the deliberative process privilege to withhold a handwritten note that said "what a bunch of crap!!"
But the deliberative process privilege can be deadly serious, too. It's been used to withhold the names of hospitals where veterans died because of delays in screening, as @cjciaramella reported
It's even been cited to withhold a report about what the the US's role in creating a "safe haven" for Nazis and their collaborators after WWII. When the NYT got the report, we were actually able to see what was being withheld:
Both Republicans and Democrats in Congress have consistently recognized abuse of the deliberative process privilege. Here's a segment of a report by @jasoninthehouse
All reasons why @rcfp et al argue that the Supreme Court should affirm: "Because #FOIA’s purpose to ensure an informed citizenry is, as Congress has recognized, already stymied by rampant overuse of the deliberative
process privilege, the Services’ arguments should be
rejected."
process privilege, the Services’ arguments should be
rejected."
Many other amici have joined @rcfp in supporting Sierra Club, including @CenterForBioDiv, @ACLU, @CREWcrew, @NAHBhome, @farmbureau, @EPICprivacy, and more. You can read their briefs here: https://www.scotusblog.com/case-files/cases/u-s-fish-and-wildlife-service-v-sierra-club/
What will happen, who knows. But this case may shape the contours of #FOIA, and the public's right to know, for years to come.
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