Deliberative Process Exemption Library

Among the most controversial exemptions in freedom of information laws is one designed to protect the confidentiality of discussions within governments.

These “deliberative process” exemptions, written in many ways, are often broadly interpreted.

FreedomInfo.org is creating a resource page on this topic.

The resource covers international model FOI laws (see below.)

The collection of summaries of national laws is under way (see below). Please send contributions on national provisions and how they are being interpreted.

Currents of Change 

Efforts both to tighten and loosen these exemptions are under way in a number of countries, often hotly debated. FreeedomInfo.org is seeking to follow these developments.

In the United Kingdom, the government appears to aiming to further protect internal conversations. (See FreedomInfo.org articles here, here and here.) Michael Gove, Secretary of State for Justice, said June 23 that “it is also vital that the conversations between Ministers and civil servants are protected in the interests of good government.” The Information Commissioner’s Office earlier produced detailed reports on the relevant provisions of the UK FOIA. (See a report on Section 35 and another report on Section 36.) See recent post on the topic in UK FOIAMan blog.

The UK commission charged in 2015 with examining FOIA issued a call for evidence in October, 2015, that summarizes the state of UK and international law on deliberative process and outlines policy options.

In the United States, openness advocates have alleged the deliberative process exemption is being abused to withhold information and made reform a top legislative priority. (Many previous FreedomInfo.org articles.)

Several years ago, Denmark’s Parliament was debating the subject, eventually adopted a more restrictive policy. The Danish parliament May 4, 2013, exempted disclosure of correspondence between ministries and the civil service if a minister is requesting advice. Ministers’ calendars also were made exempt. (See FreedomInfo.org article.)

The fundamental rationale for the exemption holds that officials should have some protected space in which to candidly discuss potential decisions. The prospect that their remarks or policy proposals will be disclosed, even later, will “chill” discussion, inhibiting frank exchanges and thus weakening policy-making.

Model Laws Contain Different Formulations

There are numerous versions of the deliberative process exemption in model FOI laws.

A model provision prepared for the World Bank Access to Information Policy, but not adopted, was written in 2009 by Toby Mendel on behalf of the Global Transparency Initiative.

GTI model policy May 2009

  1. The Bank may refuse to disclose information where to do so would, or would be likely to: a. Seriously frustrate the success of a policy, by premature disclosure of that policy. b. Significantly undermine the deliberative process within the Bank by inhibiting the free and frank provision of advice or exchange of views. c. Significantly undermine the effectiveness of a testing or auditing procedure used by the Bank. d. Cause serious prejudice to an ongoing investigation by the Bank.
  1. The constraints set out in paragraph 42 do not apply to facts, analyses of facts, technical data or statistical information. The constraints set out in paragraph 42(a) and (b) do not apply once the policy has been adopted.

Unlike many policies in national laws, the GTI model policy set limits, stressing nondisclosure was justified only if it would “seriously frustrate the success of a policy” and “significantly undermine the deliberative process.”

It also drew a distinction between opinions that might be due some secrecy and “facts, analyses of facts, technical data or statistical information.”

In addition, the proposed model policy for the World Bank provided a public interest override. It stated: “Notwithstanding any provision in this Section of the Policy, the Bank does not refuse to disclose information unless the harm to the interest protected by that provision outweighs the overall public interest in disclosure.”

The GTI statement to the Bank reviewed a number of national deliberative process exemptions, pointing out that many were “far narrower” that what the Bank had proposed, an eventually adopted. The comment concluded, “At a minimum, the policy should restrict the scope of this exception to opinions, advice or recommendations relating to the formulation of policy, and exclude background studies or statistical information.”

Inter-American Model Law

The Model Inter-American Law on Access to Information (in EnglishFrench, Portuguese, Spanish), was issued June 7, 2011, by the Organization of American States.

Like other FOI laws, it lays out legitimate exemptions, such as for personal privacy, legitimate commercial secrets. It also says that governments could withhold information if “Allowing access would create a clear, probable and specific risk of substantial harm, [which should be further defined by law] to the following public interests: – 1) public safety; 2) national security; 3) the future provision of free and open advice within and among public authorities.” The model law9 includes a public interest test.

African Model Law

The Draft Model Freedom of Information Law, adopted in 1999 by Commonwealth Heads of Government in Durban, South Africa, takes a somewhat different approach, seeming to protect a great deal of information.

25. (1) A document is an exempt document if it is –

(a) a document that has been submitted to the Cabinet for its consideration or is proposed by a Minister of Government to be so submitted, being a document that was brought into existence for the purpose of submission for consideration by the Cabinet;

(b) an official record of any deliberation or decision of the Cabinet;

(c) a document that is a draft of copy of, or of a part of, or contains an extract from, a document referred to in paragraph (a) or (b); or

(d) a document the disclosure of which would involve the disclosure of any deliberation or decision of the Cabinet, other than a document by which a decision of the Cabinet was officially published.

(2) Subsection (1) does not apply to a document that contains purely statistical, technical or scientific material unless the disclosure of the document would involve the disclosure of any deliberation or decision of Cabinet.

(3) For the purposes of this Act, a certificate signed by the Secretary to the Cabinet or a person performing the duties of the Secretary, certifying that a document is one of a kind referred to in a paragraph of subsection (1), establishes conclusively that it is an exempt document of that kind.

(4) Where a document is a document referred to in paragraph (1)© or (d) by reason only of matter contained in a particular part or particular parts of the document, a certificate under subsection (3) in respect of the document shall identify that part or those parts of the document as containing the matter by reason of which the certificate is given.

(5) In this section, any reference to “Cabinet” shall be read as including a reference to a committee of the Cabinet.

National Laws: Summaries and Resources

United Kingdom

An explanation entitled “Prejudice to the effective conduct of public affairs (section 36),” by the UK Information Commissioners Office, walks through the provision that protects information if disclosure “(b) would, or would be likely to, inhibit (i) the free and frank provision of advice, or (ii) the free and frank exchange of views for the purposes of deliberation, or (c) would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs.”

The UK commission charged in 2015 with examining the FOI law issued a call for evidence in October, 2015, that summarizes the state of UK and international law on deliberative process and outlines policy options.

The UK Office of the Information Commissioner basically said no changes are justified in its submission.

United States

The US Justice Department describes Exemption 5, the relevant exemption, in its Guide to the Freedom of Information Act. The exemption permits the government to withhold inter-agency or intra-agency “pre-decisional” memos and other documents that reflect the agency’s “deliberative process” in reaching a final decision. Exemption 5 protects “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.”

Also see the guidance of the Reports Committee for Freedom of the Press and a summary by FOIAdvocates. A March 2015 blog post by the Electronic Frontier Foundation summarizes the state of efforts to reform the exemption. The OpenTheGovernment Coalition published a statement making the case for reform.

A critical report on the use the “Withhold It Because You Want To” exemption was published in march 2014 by the National Security Archive.

An analysis of 2015 court decisions related to deliberative-process privilege protections for legal counsel’s conclusions and opinions was published March 3, 2015, on the Presnell on Privileges blog.

Commentary on the topic in 2016 came from Cass Sunstein, a former Obama administration official, writing, “In Praise of Radical Transparency,” in Bloomberg View. He praised disclosure of government information and urged more of it. His column summarized a draft academic article in which he concluded, “There is good reason for a large increase in output transparency — and for caution about input transparency.” He commented, “What most matters is what the government actually does, not who said what to whom.”

India

Section 8, clause i, of the RTI Act exempts disclosure of “cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over…” subject to other RTI exemptions.

Ireland

The Irish deliberative process exemption is described in an Aug. 9, 2015 post on FOIreland. The Irish provision The Irish law refers to disclosures that might have an adverse effect on “functions relating to management” and specifies several kinds of information that are not included. It only applies while the process is ongoing. There is a “harm test” – the body has to be able to show a realistic expectation that publishing the information would cause real, specific, harm to the public interest.

New Zealand

The law in New Zealand is summarized in a brief submitted to the UK commission by FOI expert Andrew Ecclestone.

He writes in part:

There is no class exemption for internal deliberations of government departments in the New Zealand OIA, and it does not draw the distinction found in sections 35 and 36 of the UK FOI Act. There is a harm-tested withholding ground for the maintenance of the “effective conduct of public affairs through free and frank expression of opinion by or between or to Ministers of the Crown or members of an organisation or officers and employees of any department or organisation in the course of their duty”. To establish that the withholding of the requested information is necessary, the public authority (or Minister) must also show that there is no overriding public interest in disclosure. The way in which the balance of competing public interests is constructed in the OIA is set out by considering sections 4, 5, 9(2)(g)(i) and 9(1) of the Act.
An interesting development occurred in August of 2016 when Prime Minister John Key gave a speech in which he said he is “comfortable with ministers proactively releasing more Cabinet papers.” Also see the web page of a government “Policy Project.” Key said:

When it comes to taking significant decisions, I expect departments to provide their free and frank advice in writing.

Written advice is fuller, allows for more nuance, and can better cover the complexities of the trade-offs we face.

It also allows ministers time for reflection and to work through a problem in stages with officials to come to better solutions.

I’m also comfortable with ministers proactively releasing more Cabinet papers, and the research and evidence that supports them, once decisions have been taken.

Ireland

“The exemptions specified in the Freedom of Information Act 2014 should be reviewed by the Minister for Public Expenditure and Reform with a view to increasing public access to advice provided by civil servants and special advisors,” according to the report of the Joint Committee of Inquiry into the Banking Crisis, as summarized by attorneys with Mason Hayes & Curran, who also review the Irish law on the topic.

 

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