Court Looks at "Deliberative Process" Exemption in Federal FOIA
A recent decision sheds light on the scope of FOIA deliberate
process exemption relating to attorney communications about preliminary polices
or actions in public records. National Immigrant Justice Center v. UnitedStates Department of Justice, No. 19-2088 (7th Cir. 2020).
The National Immigration Justice Center (“Center”) filed a FOIA request with the
Department of Justice (“DOJ”) seeking certain communications between the
Attorney General’s Office and any Office of Immigration Litigation or Office of
Solicitor General attorneys relating to 11 certified immigration cases. The DOJ
withheld 4,000 responsive pages under the federal FOIA’s "deliberative process" privilege exemption which protects attorney-client, work product, and deliberative
communications.
On
appeal, the 7th Circuit Court of Appeals determined that the DOJ properly withheld these records under
the deliberative process exemption. Specifically, the records contained attorney suggestions
on draft opinions and deliberative communications about certain decisions
created at the stage when the Attorney General certifies immigration cases for
a decision. Contrary to the Center’s argument, the withheld records were not ex
parte communications, because there was no pending litigation when the
documents were created.
Post Authored by Eugene Bolotnikov, Ancel Glink
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