Freedom of Information Act – Deliberate Process Privilege

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7^th Circuit Court of Appeals

Case Name: National Immigrant Justice Center v. United States Department of Justice  

Case No.: 19-2088

Officials: RIPPLE, SYKES, and SCUDDER, Circuit Judges.

Focus: Freedom of Information Act – Deliberate Process Privilege

Receiving confidential advice is essential to sound decision-making. The law of privilege owes its existence to that reality and finds application in many settings, including decision-making within the executive branch of our national government. Consider the setting front and center in this appeal—immigration. Congress has empowered the Attorney General with enforcement, rulemaking, and adjudicatory authority. The exercise of that power is of great consequence on many fronts, including in the direction of the nation’s immigration policy and the lives of many noncitizen immigrants. Those very same reasons explain why the Attorney General, as part of exercising the responsibility conferred by Congress, will seek and receive confidential input from a range of advisors within the Department of Justice.

Unsettled by decisions made by Attorneys General across three presidential administrations, the National Immigrant Justice Center invoked the Freedom of Information Act and sought access to all records of communications to and from the Attorney General in certain immigration appeals certified for executive decision. The Department of Justice honored aspects of the requests but withheld many responsive documents on the basis of FOIA’s exemption for communications protected by the deliberative process privilege. The district court found the withholding proper, and so do we. To conclude otherwise would chill the deliberations that department and agency heads like the Attorney General undertake in confidence to execute the weighty responsibilities of their offices.

Affirmed

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.