O’Neill, oh O’Neill, Wherefore Art Thou O’Neill: Defining and Cementing the Requirements for Asserting Deliberative Process Privilege

Authors

Andrew Scott

Abstract

The government may invoke the deliberative process privilege to protect the communications of government officials involving policy-driven decision-making. The privilege protects communications made before policy makers act upon the policy decision to allow government officials to speak candidly when deciding a course of action without fear of their words being used against them.

This privilege is not absolute and courts recognize the legitimate countervailing interest the public has in transparency. The Supreme Court in United States v. Reynolds held that someone with control over the protected information should personally consider the privilege before asserting it but did not provide definitive requirements. It is clear that a department head must assert the privilege, usually through an affidavit. The U.S. Court of Appeals for the Third Circuit, in United States v. O’Neill, left room for judicial discretion in determining who counts as a department head and what would constitute an adequate review of the materials before asserting the privilege.

This Comment examines the ambiguity in the procedure for asserting the deliberative process privilege which has resulted in the adoption of an inefficient and ambiguous process. Specifically, whether the court requires an affidavit from a department head is left to the discretion of the court. When a party asserts the privilege without a department head’s approval and withholds documents, district courts may either take the asserting party’s word at face value or conduct an in camera review. This Comment argues that taking the claim of privilege from the government gives too much deference to government agencies who may invoke the privilege inappropriately. On the other hand, in camera review is a time-consuming process that places the court in a position to evaluate information that the court sometimes has little expertise in. Finally, this Comment asserts the need for a stricter adherence to the standards set by O’Neill in asserting the deliberative process privilege in the Third Circuit.

Recommended Citation

Andrew Scott, O’Neill, oh O’Neill, Wherefore Art Thou O’Neill: Defining and Cementing the Requirements for Asserting Deliberative Process Privilege, 123 Dick. L. Rev. 815 (2019).
Available at: https://ideas.dickinsonlaw.psu.edu/dlr/vol123/iss3/11