Deliberative Process Privilege

When a citizen of the United States commits a crime or has unlawful bench warrants issued against them, the government uses its full force and authority to arrest, prosecute and jail that individual according to the law.

However, if the government commits a crime or violates the law, these public officials employ a legal exemption entitled 5 United States Code 522(c)(2006 & Supp. IV 2016) which states,”


(1) Whenever a request is made which involves access to records described in subsection (b)(7)(A) and

(A) the investigation or proceeding involves a possible violation of criminal law; and

(B) there is reason to believe that (i) the subject of the investigation or proceeding is not aware of its pendency, and (ii) disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings, [then] the agency may, during only such time as that circumstance continues, treat the records as not subject to the requirements of this section [concerning FOIA requests].


Deliberative Process Privilege

A form of executive privilege that protects information showing the process by which a government agency reached a particular decision or crafted a specific policy from disclosure to third parties. The privilege typically allows the government to withhold testimony or documents that reflect an agency’s pre-decisional:
  • Advisory opinions.
  • Recommendations.
  • Deliberations.
To assert the deliberative process privilege, the government usually must:
  • Invoke it through an agency head or her subordinate who is personally knowledgeable about the information sought to be protected.
  • Identify the specific information that is protected by the privilege.
  • Give reasons for maintaining the confidentiality of the information.
  • Demonstrate that the privileged information is: