For decades, the public has relied on the tools Congress supplied to ferret out the truth behind government actions and decisions. For Congress, its oversight and investigative powers have included the ability to compel the executive branch through subpoenas to produce documents and witnesses that would aid congressional review. And, for the public at large, the Freedom of Information Act (FOIA) has provided the “means . . . to know ‘what [its] Government is up to.’”
Over the past few years, and most particularly concerning the facts underlying the impeachment of President Donald Trump, these tools have failed us. The administration blocked the congressional testimony of key witnesses, including Acting Chief of Staff and OMB Director Mick Mulvaney and former National Security Advisor John Bolton. It refused to comply with congressional subpoenas for a swath of documents that would explain the president’s decision to place a hold on $391 million in military assistance to Ukraine, and argued in litigation that the courts have no role to play in resolving these disputes between Congress and the executive branch. On the FOIA front, in response to court-ordered disclosure, the administration has produced heavily redacted emails that conceal what was going on and why with the withheld aid to Ukraine. But the access that Just Security recently obtained to unredacted copies of the emails pulls back the curtain and tells a shocking story of an administration in conflict over the president’s unilateral decision to withhold the aid for political gain, fearing it would lead to a violation of the Impoundment Control Act.
These disclosures also reveal potential shortcomings in the FOIA as interpreted by the courts. The government withheld critical portions of the emails, claiming they fall under FOIA Exemption 5 as within the scope of the deliberative process privilege. The deliberative process privilege protects from compelled disclosure inter- or intra-agency communications that are antecedent to an agency decision and that reflect the “agency give-and-take” in advance of a final decision. Congress incorporated the deliberative process privilege in Exemption 5 of the FOIA to “prevent injury to the quality of agency decisions.”
As outlined by Kate Brannen of Just Security, the withheld portions of the emails reveal an administration in crisis, as officials at the Defense Department and the Office of Management and Budget grappled with the serious legal and logistical implications of the president’s hold on the aid. They also reveal the key role Trump played in this saga, starting as early as last June. All this is spelled out in a series of emails between administration officials on how to deal with the suspension of aid. But in its disclosures, the government redacted critical portions of those email exchanges, including questions that agency officials raised about the legality of the hold on the aid to Ukraine, concerns Pentagon officials expressed that the government was running out of time to execute the aid program by the end of the fiscal year as directed by Congress, and mounting frustrations with what a government official described as an “unworkable” situation.
In litigation, the government undoubtedly will argue that these emails are part of an ongoing pre-decisional process and therefore fall within the protection of the deliberative privilege process. While that position is far from convincing, a reviewing court looking just at the redactions and their context might accept that position, relying on the boilerplate concept that as pre-decisional, inter and intra-agency deliberations, they satisfy the requirements of FOIA Exemption 5.
The unredacted versions newly obtained by Just Security, however, suggest the government invoked Exemption 5 not to protect an internal deliberative process, but to keep from the public compelling evidence of the president’s misconduct and abuse of power and the complicity of administration officials in his actions. In these circumstances the deliberative process privilege “disappears altogether when there is any reason to believe government misconduct occurred.” The well-established “misconduct exception” to the FOIA’s deliberative process privilege applies “where there is reason to believe the documents sought may shed light on government misconduct” and shielding such documents under Exemption 5 and the deliberative process privilege “does not serve the public’s interest in honest, effective government.” The unredacted versions of the withheld documents, as described by Just Security, provide the requisite factual basis to pierce any possible invocation of the deliberative process privilege, as they reveal facts central to the president’s abuse of power in conditioning aid to Ukraine on that country’s agreement to dig up dirt on a political rival.
Through its reliance on Exemption 5, the government has turned the FOIA on its head, transforming it from “a structural necessity in a real democracy” to an instrument of secrecy. That alone should cause a court to view the government’s exemption claims with great skepticism.
But to ensure the FOIA is not weaponized and used as an instrument of secrecy, Congress should reform the statute to mirror how the deliberative process privilege is treated in the discovery context. When a litigant challenges the government’s invocation of the deliberative process privilege in discovery, a reviewing court balances the government’s interest in secrecy against the litigant’s interest in disclosure. Exemption 5, by contrast, has no balancing test when considering an agency claim that material is protected by the deliberative process privilege. Accordingly, Congress should amend Exemption 5 to require agencies and reviewing courts to weigh an agency’s need to protect the quality of its decisions against the public’s interest in disclosure. As applied here, that balance unquestionably would be struck in favor of granting the public access to the truth behind the Ukraine story.
Luckily here, Just Security provided this truth to the public, when Congress and the FOIA proved to be ineffective mechanisms to obtain this critical information. But the public should not have to rely solely on whistleblowers and good citizens to learn what its government is up to. Congress for its part has sought help from the courts in its ongoing battle with the administration over access to key documents and testimony. Now Congress should also provide the public with a more effective tool by reforming the FOIA to ensure the public’s interest in requested documents factors into an agency’s and reviewing court’s consideration.
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