On December 14, 2017, the Federal Communications Commission voted to repeal its Obama-Era net neutrality rules.  The day before the vote, FCC Chair Ajit Pai appeared in a humorous and unconventional “Harlem Shake” video produced by the Daily Caller, a conservative website.  In the video, entitled “7 Things You Can Still Do After Net Neutrality,” accessible at https://www.youtube.com/watch?v=LFhT6H6pRWg, Pai downplayed the impact repeal of the FCC’s impending action.  On December 26, MuckRock filed a Freedom of Information Act (“FOIA”) request for communications between the FCC and the Daily Caller and talking points and promotional plans regarding the video.  MuckRock was seeking to determine who initiated the making of the video.  On April 5, the FCC denied the request, explaining that the responsive documents were exempt from disclosure under FOIA exemption 5.  Letter from Elizabeth Lyle, Asst. General Counsel, FCC to J. Pat Brown, dated April 4, 2018, accessible at https://www.muckrock.com/news/archives/2018/apr/05/fcc-harlem-shake/ .

Exemption 5 allows agencies to withhold “inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency.”  The exemption encompasses the “deliberative process privilege.” That privilege protects “advice, recommendations, and opinions which are part of the deliberative, consultative, decision-making processes of government.”  N.L.R.B. v. Sears-Roebuck & Co., 421 U.S. 132, 150 (1975).  The privilege pre-existed FOIA and has continuing application in litigation with the Government outside of the FOIA context.

Recently, Seife v. Department of State, 2018 WL 1517196 (S.D.N.Y. March 26, 2018), highlighted a split in authority regarding the privilege’s applicability to deliberations over an agency communications strategy for publicizing an agency initiative.  In Seife, Judge Gregory H. Woods, of the Southern District of New York, considered whether the privilege could cover internal agency documents discussing “the scheduling of various press events and the substance of the message to be communicated to the press during those events.”  Slip op. at 12.  Ultimately, Judge Woods rejected consistent Southern District of New York authority, and concluded that the deliberative process privilege can shield such documents.

Judges in the Southern District of New York have generally held that “[d]eliberations about how to present an already decided policy to the public, or documents designed to explain that policy to—or obscure it from—the public, including in draft form, are at the heart of what should be released under FOIA.”  E.g., National Day Laborer Organizations Network v. U.S. Immigration & Customs Enforcement Agency, 811 F. Supp. 2d 713, 741 (S.D.N.Y. 2011), amended on reconsideration (Aug. 8, 2011); Fox News Network, LLC v. U.S. Dep’t of Treasury (“Fox News II”), 911 F. Supp. 2d 261, 276 (S.D.N.Y. 2012).  The privilege applies only when a draft public statement would reveal the agency’s deliberations regarding the underlying substantive policy.  Citizens Union v. Attorney General, 269 F. Supp. 3d 124, 165 (S.D.N.Y. 2017); Fox News Network, LLC v. U.S. Dep’t of Treasury (“Fox News I”), 739 F. Supp. 2d 515, 545 (S.D.N.Y. 2010).  On the other hand, the First Circuit has held that “documents deal[ing] with the [agency’s] decision of how and what to communicate to the public” fall within the deliberative process privilege because a choice of communications strategy “is a decision in and of itself.”  New Hampshire Right to Life v. U.S. Dep’t of Health & Human Services., 778 F.3d 43, 54 (1st Cir.), cert. denied, 136 S. Ct. 383 (2015).  Various D.C. District Court decisions have also “concluded that draft talking points, anticipated questions and proposed answers, and other documents reflecting deliberations about how to present an agency’s policy to the public are entitled to the protection of the deliberative process privilege.” Seife v. Department of State, slip op. at 12; see, e.g., ICM Registry, LLC v. U.S. Dep’t of Commerce, 538 F. Supp. 2d 130, 136 (D.D.C. 2008).

In his own analysis, Judge Woods observed that the privilege reflects a “recognition that ‘the process of selecting among alternative policies can be delicate and audience-sensitive, susceptible to distortions and vulnerable to fudging when the deliberators fear or expect public reaction.’” Seife v. Department of State, slip op. at 14.  In his view, an agency’s development of a  communications strategy for its substantive policy initiatives “often involve[s] the evaluation of alternative public relations policies, policies which by their very nature are audience-sensitive and must anticipate public reaction.” Id.  Even when the decision on the substantive policy has been reached, “the decision of how, and to what extent, to convey that policy to the public may require input by many working components within the agency, or even an analysis of the underlying policy itself.”  Id.  Judge Woods also noted that the Second Circuit’s decision in American Civil Liberties Union v. Department of Justice, 844 F.3d 126, 133 (2d Cir. 2016), was suggestive of the approach the Circuit would take were it to engage in a detailed analysis of the issue.  In that case, the Second Circuit had applied the deliberative process privilege to “a draft of a proposed op-ed article that suggested some ways of explaining the Government’s legal reasoning in support of drone strikes.” Id. at 133.

Our laws and jurisprudence reflect an ambivalence toward government speech.  Mark G. Yudof, When Government Speaks: Politics, Law, and Government Expression in America 51-52 (1983).  Providing information in an understandable form can: (1) enhance the effectiveness of a government program (in ways unrelated to the program’s popularity), and (2) assist citizens by providing information they can use to improve their lives.  E.g., Sierra Club v. Costle, 657 F.2d 298, 401 (D.C. Cir. 1981)(“the importance to effective regulation of continuing contact with a regulated industry, other affected groups, and the public cannot be underestimated”); Cass R. Sunstein, Simpler: The Future of Government 75-78 (2013)(discussing the development of the USDA’s “food plate” icon to provide individuals with information for making healthier nutrition choices).  But government can use communications to manipulate the public, see, Yudof, supra, at 15, 178-79; Are We Victims of Propaganda: A Debate, The Forum (March 1929)(“[p]ropaganda is making puppets of us[;] we are moved by hidden strings which the propagandist manipulates”), accessible at https://postflaviana.org/wp-content/uploads/2015/07/martin-bernays-debate.pdf.  Limitations on government propaganda reflect this concern.  See generally, Comp. Gen., Medicare Prescription Drug, Improvement, and Modernization Act of 2003, Op. B-302504, 2004 WL 523435 *5 (Mar. 10, 2004) (discussing history of “publicity or propaganda” riders, which typically provide that “[n]o part of any appropriation contained in this or any other Act shall be used for publicity or propaganda purposes within the United States not heretofore authorized by the Congress”); 47 U.S.C. §399 (held unconstitutional in FCC v. League of Women Voters, 468 U.S. 364 (1984))(preventing public broadcasting stations from engaging in “editorializing”); FCC v. League of Women Voters, 468 U.S. at 414 (Stevens, J., dissenting)(“the interest in keeping the Federal Government out of the propaganda arena is of overriding importance”).  At the core of the “right to know” that FOIA codifies is prevention of government deception of the public by  the manipulation of information.  Thus, there is reason to distinguish deliberations regarding agency communications strategies from those regarding the agency’s substantive policies.  We may want to ensure public awareness of the manner in which agencies craft their messages to enhance their public images.  At the same time, we want to avoid unduly inhibiting internal agency discussions regarding the most effective manner in which to provide information that helps clarify policies and enhance individual autonomy.

Proponents of distinguishing debates about communications strategy from “policy” debates will need to confront at least three issues.  First, substantive policy and communications strategy may not be neatly divisible, particularly where the agency’s mission involves communications.  For example, providing nutritional guidance is a component of USDA’s mission.  Thus, in considering the substitution of the “food pyramid” icon with the “food plate” icon, the USDA’s “substantive policy” is its communications strategy.  And even when substance and communication can be distinguished conceptually, there may be no clear temporal separation between deliberations on policy and communications strategy.  The agency may be deliberating on both until the policy is announced; the policy itself, as well as its presentation, may be fluid until the last minute.  See, e.g., Judicial Watch, Inc. v. U.S. Department of Justice, 20 F.Supp.3d 260, 273 (D.D.C. 2014)( “the concurrent development of a media and communications strategy and the legal analysis of the DACA program were a part of the agency’s deliberative process”).

Second, the deliberative process privilege does not cover memoranda incorporated into an agency’s final decision.  N.L.R.B. v. Sears-Roebuck & Co., 421 U.S. at 161.  The final decision with regard to a substantive policy, which will almost certainly be reduced to writing, may differ from the “final decision” regarding a communications strategy.  Perhaps the latter is much less likely to be formally adopted in written form.

Third, at the Supreme Court’s behest, FOIA jurisprudence has taken a turn toward textualism, see, Milner v. Department of the Navy, 562 U.S. 562 (2011); Department of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1 (2001).  Nothing in Exemption 5’s text suggests that the application of a privilege to withhold inter-agency and intra-agency memos should turn on the subject matter of the deliberations.  Granted the text seems to authorize continued common law development of judicially-created doctrines, so perhaps it cannot be considered dispositive with respect to the scope of Exemption 5 privileges (in all but limited circumstances).  However, outside of the decisions regarding FOIA itself, there appears to be little, if any, precedent for the proposition that the availability of internal agency deliberative documents to a private party “in litigation with the agency” turns on whether those discussions regard substantive policies or communications strategy.

MuckRock’s FOIA request for emails regarding the FCC Chairman Pai’s “Harlem Shake” video raised the issue of whether deliberations regarding communications strategy can be withheld.  It will be interesting to see how any litigation over the denial of MuckRock’s request is resolved.