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). This is the second in a series of three posts discussing Campaign Legal Center.  The first post provided the factual background for Campaign Legal Center and described the D.C. Circuit’s resolution of the issue.  This post lays out the history of the “government misconduct” exception to the deliberative process privilege.

FOIA and the Government Misconduct Exception

The Riddle of Exemption 5

The Freedom of Information Act (“FOIA”) incorporates the privileges the government can rely upon in civil litigation, as well as their limitations. NLRB v. Sears Roebuck, 421 U.S. 132, 150-53 (1975)(recognizing the deliberative process privilege, but limiting it to pre-decisional documents); EPA v. Mink, 410 U.S. 73,  85-89 (1973)(recognizing the deliberative process privilege, but holding it inapplicable to purely factual investigative material).[1]  The relevant Senate Report on legislation that would ultimately become FOIA explained that exemption 5 allows agencies to withhold records that “would not be available by law to a party . . . in litigation with the agency.”  S. Rep. No. 89-813, 9 (Oct. 1, 1965); EPA v. Mink, 410 U.S., supra, at 85-86 (quoting Senate Report 89-813). The House Report asserted that exemption 5’s protections did not encompass “any internal memorandums that would routinely be disclosed to a private party through the discovery process in litigation with the agency.” H.R.Rep.No.89-1497, 10 (May 9, 1966)(emphasis added).  The Supreme Court applied the House Report’s seemingly broader delineation of exemption 5’s scope to preclude FOIA requesters from gaining access to documents protected by the attorney work product privilege after the relevant litigation had ended.  FTC v. Grolier, Inc., 462 U.S. 19 (1983).[2]

Equating the law of litigation privileges with the government’s entitlement to refuse requests for documents under FOIA presents a fundamental problem. The problem becomes apparent when upon the government’s invocation of the deliberative process privilege, the government’s opponent, whether civil litigant or FOIA requester, seeks to defeat the privilege by citing government misconduct. In civil litigation, privileged material may nevertheless be discoverable, and even admissible into evidence, even routinely so, if the civil litigant can show a need for the requested documents in the litigation.  Such a showing of need might often be made in pursuing causes of actions that hinge on a government official’s motives for taking an action.[3]  And, of course, the required showing of need might turn on certain particulars of the analogous litigation.  Is the government the plaintiff, the defendant, or merely a non-litigant in possession of potentially relevant evidence?[4] Is the litigation a challenge to an administrative action that must ordinarily be reviewed on the administrative record, or litigation involving a de novo trial?

FOIA is premised upon a wholly different principle, that government records should be accessible to any member of the public, i.e., the public at large, without any showing of need.[5]  Thus, at its core, FOIA effectuates “the abstract public interest in open government.” Such an abstract interest is rarely a matter of importance to a court adjudicating a case.  26A FEDERAL PRACTICE & PROCEDURE: EVIDENCE § 5680 (1st ed.)(text accompanying notes 49-51).[6] 

So how are courts to transpose a qualified or conditional privilege available in a litigation context to a public records context in which a particularized need for records is irrelevant?[7]  This anomaly has led the Supreme Court to observe that, in exemption 5 cases, privileges recognized in civil litigation must be applied merely as “rough analogies.”  EPA v. Mink, supra, 410 U.S. at 86; accord, U.S. v. Weber Aircraft Corp., 465 U.S. 792, 802 (1984); Federal Open Market Committee of Federal Reserve System v. Merrill, 443 U.S. 340, 362-63 (1979); see, Dema v. IRS, 1979 U.S. Dist. LEXIS 9025 (D.D.C. 1979)(discussing the governmental misconduct exception to the deliberative process privilege).  

Perhaps one major consideration can help courts demarcate the boundary between material available (or “routinely” available) in civil discovery (and thus left unprotected by exemption 5), and that which is not. In some circumstances, a civil litigant need only make a showing of relevancy, as that term is broadly defined in Rule 26, FED. R. CIV. PRO. 26,[8] to obtain material it seeks from the government by way of discovery.  In others, the litigant must make some additional showing beyond relevance.  Materials subject only to a relevancy requirement should be considered available, and routinely available, in litigation for exemption 5 purposes. Materials subject to more demanding requirements might be eligible for classification as unavailable, or at least not routinely available, for purposes of the exemption 5 standard. 

For example, in the context of the attorney work-product privilege, at issue in FTC v. Grolier, Rule 26 requires more than a showing of relevancy to justify breaching the privilege.  It requires a showing that the litigant “has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent.”  FED. R. CIV. P. 26(b)(3)(A); Notes of Advisory Committee on Rules—1970 Amendment; 8 FED. PRAC. & PROC. CIV. § 2025 (3d ed.). 

But the requirements for breaching the deliberative process privilege may be less strict.  When the legitimacy of the government’s motives for its action are genuinely at issue in a litigation, little further showing appears to be required to breach the privilege.  Subpoena Duces Tecum Served on the Office of the Comptroller of the Currency, 145 F.3d 1422, 1424-25 & n.2 (D.C.Cir. 1998)(“[i]f the plaintiff’s cause of action is directed at the government’s intent, however, it makes no sense to permit the government to use the [deliberative process] privilege as a shield”).  Granted, some courts, even in that context, consider factors similar to those considered in attorney work product cases, though presumably as a matter of the exercise of sound discretion. See, e.g., Franklin Nat. Bank Securities Litigation, 478 F. Supp. 577 (E.D.N.Y. 1979).[9]

The “Government Misconduct” Exception to the Deliberative Process Privilege

Overview

Many federal courts have recognized a “government misconduct” exception to the deliberative process privilege; mostly in non-FOIA cases, but occasionally in FOIA cases.  The privilege was recognized and sometimes invoked by district courts several years before FOIA’s enactment. 

All of the pre-FOIA cases involved litigants’ attempted use of civil discovery to pursue their cases.  Although the Administrative Procedure Act, Pub. L. 79–404, 60 Stat. 237 (1946), had imposed upon federal agencies a general obligation to disclose “matters of official record” to “persons properly and directly concerned except information held confidential for good cause found,” id. at §3(a), there was no statutory right to request such information apart from a need for it in litigation.[10] And even that limited disclosure obligation did not apply to “intra-agency memoranda and reports prepared by agency employees for use within the agency.”  Attorney General’s Manual on the Administrative Procedure Act at 25. In the Attorney General’s view, such records were not “official records,” because they “merely reflect[ed] the research and analysis preliminary to official agency action.”  Id.

The “governmental misconduct” doctrine continued to be applied in FOIA’s early years.  Some of the “government misconduct” cases involved civil litigants seeking documents to litigate their claims, but others involved judicial review of agency denials of FOIA requests.  More recently, although the government misconduct exception continues to be acknowledged in FOIA cases, courts virtually never find that FOIA requesters have successfully rebutted assertion of the deliberative process privilege on that basis.

Many courts have based a recognition of the government misconduct privilege on the proposition that shielding “governmental wrongdoing does not enhance the effectiveness of government and is therefore not within the scope of the general deliberative privilege.”  In re Franklin Nat. Bank Securities Litigation, 478 F.Supp. 577 (E.D.N.Y. 1979); accord, In re Sealed Case, 121 F.3d at 738 )(shielding internal government deliberations in th[e] context [of governmental misconduct] does not serve “the public’s interest in honest, effective government.”); see, Gerald Wetlaufer, Justifying Secrecy: An Objection To The General Deliberative Privilege 65 IND. L.J. 845 , 855 & n.37 (1990)(“Justifying Secrecy”); see generally, CHARLES ALAN WRIGHT, ET. AL., 26A FEDERAL PRACTICE & PROCEDURE: EVIDENCE § 5679 (1st ed.)(available on westlaw).

Some courts also based recognition of the exception and the definition of its scope, at least in part, on the relationship between the deliberative process privilege and two bedrock principles of judicial review.  In the context of judicial review of agency actions: (1) agency decisions should be reviewed based on the soundness of the final decision, and (2) courts should not intrude upon the administrators “mental processes” absent a showing of bad faith.  See, Carl Zeiss Stiftung v. V. E. B. Carl Zeiss, 40 F.R.D. 318, 325 (D.D.C. 1966), aff’d, 384 F.2d 979 (D.C. Cir.), cert. denied, 389 U.S. 952 (1967); Rosee v. Board of Trade, 36 F.R.D. 684, 689 (N.D. Ill. 1965); In re Franklin Nat. Bank Securities Litigation, supra, 478 F.Supp. at 581, 587; Justifying Secrecy, supra, at 905-911 (criticizing the rationale).[11]  

These two constraints upon judicial review were, of course, most prominently recognized by the U.S. Supreme Court in the Morgan cases, Morgan v. United States, 304 U.S. 1, 18, (1938); United States v. Morgan, 313 U.S. 409, 422 (1941), and Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420 (1971).[12]  In Overton Park, the Court observed: “where there are administrative findings that were made at the same time as the decision . . . there must be a strong showing of bad faith or improper behavior before [inquiry into the mental processes of administrative decisionmakers] may be made.” 401 U.S. at 420.  Accordingly, the occasions for proper invocation of the government misconduct exception could, at a minimum, be tied to those in which a court may properly pierce the veil of administrative regularity and go behind the justifications for agency action officials expressly offer for their decisions.  I elaborate on some of the caselaw regarding extra-record discovery in Citizenship and the Census: State of New York v. U.S. Department of Commerce (Round One)(Part IV), YALE J. ON REG.: NOTICE & COMMENT (Aug. 22, 2018).

Pre-FOIA Cases

At least four oft-cited pre-FOIA cases recognize a government misconduct exception to the deliberative process privilege: U. S. v. Procter & Gamble Co., 25 F.R.D. 485 (D.N.J. 1960), Rosee v. Board of Trade, 36 F.R.D. 684, 690 (N.D. Ill. 1965), Bank of Dearborn v. Saxon, 244 F.Supp. 394, 401-03 (E.D. Mich. 1965), aff’d sub nom., Bank of Dearborn v. Manufacturers Nat’l Bank, 377 F.2d 496 (6th Cir. 1967), and Carl Zeiss Stiftung v. V. E. B. Carl Zeiss, 40 F.R.D. 318 (D.D.C. 1966), aff’d, 384 F.2d 979 (D.C. Cir.), cert. denied, 389 U.S. 952 (1967). 

In Procter & Gamble Co., a District Judge rejected the government’s assertion of the deliberative process privilege. Accordingly, the judge allowed Proctor & Gamble to pursue discovery to explore its allegation that federal authorities had wrongfully used a grand jury to develop evidence for the government’s civil case against the company.

Rosee v. Board of Trade, involved a municipal government, but is nevertheless cited for recognition of the government misconduct exception.  In Rosee, plaintiff sought municipal records to gather evidence for its allegation that two Commodity Exchange Authority officials had conspired with others to wrongfully deprive plaintiff of his membership on the City Board of Trade.  The District Judge held the deliberative process privilege inapplicable because Rosee’s grievance arose from alleged misconduct by government officials, not from any “determination of policy.” Rosee v. Board of Trade, supra, 36 F.R.D. at 690.  The District Judge elaborated: “Plaintiff does not seek to examine the factors which entered into an official’s exercise of discretion; he hopes to show that two subordinate government agents wilfully conveyed false information to their superiors.” Id.

In Bank of Dearborn v. Saxon, the District Court relied upon the governmental misconduct exception to permit discovery into a decision of the U.S. Comptroller of the Currency.  Essentially, plaintiff bank alleged that the Comptroller had endorsed a deception that a banking competitor had used to skirt a Michigan state law that prohibited the competitor from establishing a branch bank near a location in which plaintiff already maintained a bank.

In Carl Zeiss Stiftung, the District Judge recognized the existence of an exception to the deliberative process privilege where there is a “charge of governmental misconduct or perversion of governmental power,” but found the subpoena for government documents unrelated to either type of allegation.  40 F.R.D. at 329 & nn. 47-48 (citing Singer Sewing Machine Co. v. NLRB, 329 F.2d 200, 208 (4th Cir. 1964), as well as Rosee, Bank of Dearborn, and Protor & Gamble).

Post-FOIA Early Cases

After FOIA’s enactment, which codified the deliberative process privilege as a limitation on the right to obtain documents pursuant to FOIA, at least three district courts applied the governmental misconduct exception to reject assertions of the deliberative process privilege.  However, only one of the three was a FOIA case.

In Black v. Sheraton Corp., 371 F. Supp. 97, 101-02 (D.D.C. 1974), the District Court held that the governmental misconduct exception defeated the government’s attempt to use the deliberative process privilege to conceal documents.  Thus, plaintiff was entitled to documents relating to the government’s admitted invasion of plaintiff’s private quarters by lengthy secret electronic surveillance. Plaintiff was also entitled to documents that might reveal any alleged political motivation for the government’s investigation.

Tax Reform Research Group v. Internal Revenue Service, 419 F. Supp. 415, 426 (D.D.C. 1976), is the second case in which the governmental misconduct exception was successfully invoked, and the only case involving FOIA.  There, a District Judge held that the deliberative process privilege did not protect documents regarding a recommendation to use the powers of the Internal Revenue Service (IRS) in a discriminatory manner against “enemies” of the Nixon Administration. 

Tax Reform Research Group was discussed in an unreported 1970’s FOIA case, Dema v. IRS, 1979 U.S. Dist. LEXIS 9025 (D.D.C. 1979). Plaintiffs filed a FOIA request for the release of all documents relating to the IRS’s handling of a tort claim they had lodged with the agency. The IRS invoked the deliberative process privilege.  Plaintiffs asserted that the privilege could not be deployed to hide governmental wrongdoing, citing Tax Reform Research Group. After examining the documents in question, the District Court concluded that they reflected no governmental impropriety, but rather were “part of the legitimate governmental process intended to be protected by Exemption 5.” Id. (quoting Tax Reform Research Group, supra, 419 F. Supp. at 426).  Thus, while it recognized the existence of the governmental misconduct exception, the Court did not order release of the information pursuant to FOIA.

In re Franklin Nat. Bank Securities Litigation, 478 F. Supp. 577 (E.D.N.Y. 1979), the third case in which the governmental misconduct exception was successfully invoked, involved the financial collapse of the Franklin National Bank. Franklin National was the nation’s twentieth largest bank shortly before its demise. Its collapse sparked suits by entities representing the shareholders and others against Franklin National’s management and its accounting firm, as well as the federal regulators responsible for overseeing the bank.  The Federal Deposit insurance Corporation (“the FDIC”), in its capacity as receiver of Franklin National, and the Trustee in Bankruptcy of the Bank’s holding company sought to compel the Office of the Comptroller of the Currency (“the OCC”) to produce examination reports documenting the results of the OCC’s periodic examinations of Franklin National Bank, as well as various OCC summaries and analyses of those reports.

In granting the discovery request with respect to the inspection reports, despite OCC’s invocation of the deliberative process privilege, District Judge Jack Weinstein observed that protecting evidence of governmental wrongdoing does not enhance the effectiveness of government and is therefore outside the scope of the general deliberative privilege. Further, he explained “an element of unfairness would enter” if government could conceal evidence “behind the screen” of privilege.  478 F. Supp. at 587. As to the generalized public interest in the information, Judge Weinstein explained: “A strong public interest thus demands that the confidential sections be disclosed to fully air the story behind the bank’s collapse and to help evaluate the adequacy of existing bank examination procedures.” Id.

Almost 20 years later, in Alexander v. FBI, 186 F.R.D. 154, 164 (D.D.C. 1999), a District Judge found that there was no privilege where documents related to misuse of a government personnel file to discredit a witness in an ongoing investigation of Clinton administration.  Alexander v. FBI appears to be the last reported case in which the government misconduct exception has been successfully used by a FOIA requester.

Modern Doctrine

ICM Registry, LLC v. U.S. Dep’t of Commerce, 538 F.Supp.2d 130, 133 (D.D.C. 2008), provides one of the most detailed overviews of the contemporary law regarding the “government misconduct” exception.  It described the “so-called misconduct exception” as “a less well-settled doctrine” and noted that the scope of the requisite “misconduct” has never “been clearly defined.”  Moreover, it cautioned, on the Court of Appeals level the misconduct exception has been recognized only in dicta, but “has never been applied in a holding.” Id. at 133 (citing Enviro Tech Int’l, Inc. v. EPA, 371 F.3d 370, 376-77 (7th Cir. 2004); Subpoena Duces Tecum Served on the Office of the Comptroller of the Currency, 145 F.3d 1422, 1424-25 & n.2 (D.C. Cir. 1998)(non-FOIA case); In re Sealed Case, 121 F.3d 729, 746 (D.C. Cir. 1997)(non-FOIA case)).[13] The Court noted that in the District of the District of Columbia the deliberative process privilege has been disregarded only in circumstances of “extreme government wrongdoing.” ICM Registry, 538 F. Supp. 2d at 133 (citing Alexander v. FBI and Tax Reform Research Group).

The Court noted that “[t]he exception runs counter to the purposes that animate the deliberative process privilege” and thus should be applied “narrowly.” Id.  Seeking to cabin the doctrine, the Court offered the following regarding the governmental misconduct exception’s proper application:

[i]f every hint of marginal misconduct sufficed to erase the privilege, the exception would swallow the rule. In the rare cases that have actually applied the exception, the “policy discussions” sought to be protected with the deliberative process privilege were so out of bounds that merely discussing them was evidence of a serious breach of the responsibilities of representative government. The very discussion, in other words, was an act of government misconduct, and the deliberative process privilege disappeared. 

Id (emphasis added).

The D.C. Circuit, discussing the deliberative process privilege in deciding In Re Sealed Case, was a bit less cautious in its statement of the exception:

where there is reason to believe the documents sought may shed light on government misconduct, “the privilege is routinely denied,” on the grounds that shielding internal government deliberations in this context does not serve “the public’s interest in honest, effective government.”

In re Sealed Case, 121 F.3d at 746.

CONCLUSION

As the above analysis shows, the basis for a “government misconduct” exception to the deliberative process privilege cannot lightly be dismissed.  It has frequently been recognized in civil litigation, but rarely successfully invoked in FOIA cases.[14]  The third post in this series will analyze whether the “government misconduct” exception applies in FOIA cases. Then, assuming that it does, the post will discuss whether the exception provides a justification for requiring the Department of Justice to provide documents reflecting Department officials’ deliberations in formulating the sham letter requesting that a citizenship question be included in the short form census.

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[1] CHARLES ALAN WRIGHT, ET. AL., 26A FEDERAL PRACTICE & PROCEDURE: EVIDENCE § 5680 (1st ed.)(text accompanying notes 44)(available on westlaw)(exemption 5 does not create “any new privilege,” [h]ence, the deliberative process privilege is to be found, not in the exemption, but in the decisions of the courts in civil discovery and in construing the F.O.I.A. exemption”).

[2] Starting from the premise that only documents routinely available in civil litigation fall outside exemption 5, the Grolier Court observed: “Under the current state of the law relating to the privilege, work product materials are immune from discovery unless the one seeking discovery can show substantial need in connection with subsequent litigation.”  Accordingly, such materials could not be considered “‘routinely’ or ‘normally’ available to parties in litigation,” and thus were protected by Exemption 5. Consistent with its earlier decision in Sears, Roebuck, the Court did not “require disclosure of any document which would be disclosed in the hypothetical litigation in which the private party’s claim is the most compelling.”  Sears, Roebuck, 421 U.S. at 149, n.16 (dicta); FTC v. Grolier, 462 U.S. at 28 (“[i]t is not difficult to imagine litigation in which one party’s need for otherwise privileged documents would be sufficient to override the privilege, but that does not remove the documents from the category of the normally privileged”).

[3]  Subpoena Duces Tecum Served on the Office of the Comptroller of the Currency, 145 F.3d 1422, 1424-25 & n.2 (D.C.Cir. 1998)(“If the plaintiff’s cause of action is directed at the government’s intent, however, it makes no sense to permit the government to use the [deliberative process] privilege as a shield. For instance, it seems rather obvious to us that the privilege has no place in a Title VII action or in a constitutional claim for discrimination.”).

At base, plaintiffs challenging Secretary Ross’s decision to add a citizenship questions were alleging that the action was designed to dilute the voting strength of minority populations, somewhat akin to cases brought under section 2 of the Voting Rights Act against state and local officials. While section 2 violations can be established without proving intent to dilute minority populations’ voting power, showing an invidious discriminatory intent is also sufficient to establish a violation. U.S. Department of Justice, Guidance under Section 2 of the Voting Rights Act, 52 U.S.C. 10301, for Redistricting and Methods of Electing Government Bodies 9-10 (Sept. 1, 2021).

[4] As the Mink Court noted, “we do not know if the government’s position is to be analogized to cases in which the government is a plaintiff or a defendant.”  EPA v. Mink, 410 U.S. at 86; see generally, CHARLES ALAN WRIGHT, ET. AL., 8 FEDERAL PRACTICE & PROCEDURE: CIVIL § 2019 (3d ed.)(“there is an arguable distinction between the privileges available to the government as a defendant and those that it may invoke where it is a party plaintiff”). And indeed, in some civil litigation in which governmental conduct is relevant, the government may not be a litigant at all.  E.g., Carl Zeiss Stiftung v. V. E. B. Carl Zeiss, 40 F.R.D. 318, 325 (D.D.C. 1966), aff’d, 384 F.2d 979 (D.C. Cir.), cert. denied, 389 U.S. 952 (1967).  8 FEDERAL PRACTICE & PROCEDURE: CIVIL § 2019 (3d ed.)(“courts have been more inclined to recognize governmental privilege in litigation between private parties than in actions to which the government is a party”).

[5] EPA v. Mink, supra, 410 U.S.  at 86 (“[n]or does the Act, by its terms, permit inquiry into particularized needs of the individual seeking the information, although such an inquiry would ordinarily be made of a private litigant”).

[6] Nevertheless, such an interest has been taken into account by a few courts, either directly or indirectly.  Mobil Oil Co. v. Dept. of Energy, 520 F. Supp. 414, 417, 419 (N.D.N.Y. 1981)(listing “the public interest in learning how effectively the government is operating” as a distinct factor, and finding such an interest in the public airing of Department of Energy’s alleged “mismanage[ement of] a billion dollar governmental program that has far-reaching affects on the American public”); In re Franklin Nat. Bank Securities Litigation, 478 F. Supp. 577, 587 (E.D.N.Y. 1979)(discussing the strong public interest in “evaluat[ing] the adequacy of existing bank examination procedures”); Bank of Dearborn v. Saxon, 244 F.Supp. 394, 402 (E.D. Mich. 1965), aff’d sub nom., Bank of Dearborn v. Manufacturers Nat’l Bank, 377 F.2d 496 (6th Cir. 1967)(“it might be said with considerable force that the issue before us, a charge of sham and subterfuge employed by those in high places, is the very kind of issue with respect to which an aggrieved administrator might well insist that his entire file in the matter . . . be spread on the public record so that the falsity of the charge might be made manifest of all who cared to read.”)

[7] The authors of Federal Practice & Procedure capture this dilemma perfectly:  “One reason why the deliberative process privilege will never be congruent with the Freedom of Information Act exemption is that the privilege is only a qualified one, that is, in deciding whether to uphold a claim of privilege, the court must balance the government’s claimed need for secrecy against the court’s own need for evidence to resolve a dispute before it. The person seeking disclosure under the F.O.I.A. need show no need for the evidence and the abstract public interest in open government will never weigh as heavily with courts as the concrete needs of a litigant seeking justice.”  CHARLES ALAN WRIGHT, ET. AL., 26A FEDERAL PRACTICE & PROCEDURE: EVIDENCE § 5680 (1st ed.)(text accompanying notes 49-51)(available on westlaw) 

[8] The term encompasses more than evidence admissible at trial. FED. R. CIV. P. 26(b)(1)(“[i]nformation within this scope of discovery need not be admissible in evidence to be discoverable”).

[9] But, of course, courts can engage in a multi-factor balancing test even when a discovery request merely seeks relevant, non-privileged information.  FED. R. CIV. P. 26(b)(1) (listing multiple factors a judge may consider, in the judge’s discretion).

[10] H. Rep. No. 89-1497 5 (May 9, 1966)((“[f]or more than 10 years . . . improper withholding based upon [the public information provision] has been documented[;] [t]he Administrative Procedure Act provides no adequate remedy to members of the public to force disclosures in such cases”); S. Rep. No. 89-813, 5 (Oct. 1, 1965) (there is no remedy in case of wrongful withholding of information from citizens by Government officials).

[11] In rejecting the government misconduct defense in Carl Zeiss Stiftung the court asserted that “[t]he cerebrations and mental processes of government officials, leading to admittedly proper exercises of power, can never be a factor in a judicial proceeding and, therefore, need not be disclosed.”  40 F.R.D. at 329.  Similarly, finding that the government misconduct defeated the deliberative process privilege, in Franklin National Bank Securities Litigation District Judge Jack Weinstein explained: “[a] subsidiary theory supporting the official information privilege relies upon a related, though still distinct principle: ‘The judiciary . . . is not authorized “to probe the mental processes” of an executive or administrative officer.’” 478 F. Supp. at 581 (citing cases).

[12] The principle is sometimes traced back to Fletcher v. Peck, 10 U.S. 87, 130-131 (1810), which applied it in the legislative context.

[13] Both Enviro Tech and Subpoena Decus Tecum advert to the concept of nefariousness.  In the former, the Court assumed that “internal discussions about a course of agency action that would be nefarious, if not illegal, likewise would not be protected by the deliberative process privilege.” 371 F.3d at 376 (emphasis added.) In the case before it, the Court needed only to conclude that “a recommended workplace exposure limit for [a toxic substance] is not so patently beyond the scope of the EPA’s authority as to preclude the agency from having internal discussions about it or to invoke the deliberative process privilege.”  Id. In Subpoena Duces Tecum, the Court observed: “The word ‘misconduct’ does not even really fit this situation, because the government could have violated the Bankruptcy Code without the nefarious motives that the word ‘misconduct’ implies.” 145 F.3d at 1425 & n.2 (emphasis added.)

Indeed, in ICM Registry the Court posed the question before it as “whether any action beyond the direct regulatory authority of the agency will suffice, or whether something more nefarious must be afoot before the deliberative process privilege ‘disappears’” based on government misconduct.  538 F.Supp.2d 131 (emphasis added).

[14] One of the most recent cases in which a FOIA requester sought to invoke the “government misconduct” exception was Hall & Associates v. EPA, 14 F.Supp.3d 1, 9-10 (D.D.C. 2014). Again, the requester was unsuccessful.