Standing In The Way Of Judicial Review: Assertion Of The Deliberative Process Privilege In APA Cases
Michael Ray Harris
University of Denver Sturm College of Law
June 23, 2008
St. Louis University Law Journal, Vol. 53, 2008
U Denver Legal Studies Research Paper No. 09-05
In its relatively short life, the deliberative process privilege has become one of the most predominate privileges exercised by the federal government, and is now routinely asserted in a wide array of litigation against the government, in response to public information requests, and to withhold information from Congress. This article seeks to examine the use of the privilege as it specifically applies to judicial review of informal government rulemaking under the federal Administrative Procedures Act, or APA. The article finds that use of the privilege is inconsistent with "hard look" review under the APA in that it may be used by the government to shield an agency's reliance on evidence outside the scope of its statutory authority, as well as wholly biased, one-sided decisions.
Part I of examines the nature of the deliberative process privilege. Emphasis is placed on the history of the privilege, from its origin in a now defunct opinion by the British House of Lords to its explosive use in the American judicial system. Part II focuses on the Administrative Procedure Act, looking primarily at the growth of the modern administrative state since the start of the New Deal and passage of the APA in 1947 as a means to provide a Constitutional-like check on bureaucratic authority. Part III presents the focal point of this article, examining whether the growing tendency of the government to assert the deliberative process privilege, as a means to limit access to relevant information in the administrative record, has undermine judicial review. The focus in this Part will be on review of informal administrative rulemakings, which today make up the bulk of government policymaking with respect to domestic social and economic issues. Finally, Part IV of this article acknowledges the need to protect the nature of some government activities in order, for instance, to keep certain national security information "secret" and only in the hands of governmental officials. However, in lieu of the broad, unchecked use of deliberative process privilege by the Executive Branch in APA cases, this paper proposes more surgical methods, such as in camera review or the use of protective orders, if necessary, to limit access to sensitive information.
Number of Pages in PDF File: 69
Keywords: deliberative, privilege, APA, administrative, procedure, judicial, review, consitutional law
JEL Classification: K10, K23, K41Accepted Paper Series
Date posted: June 23, 2008 ; Last revised: May 15, 2009
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