A federal court recently stated it had “grave concerns” over the government’s initial claims that documents should be withheld in response to a Freedom Of Information Act (FOIA) request. When the government receives a FOIA request, it can withhold documents from release if they fall within certain exemptions. In those cases, the entity submitting the FOIA request does not get to see the documents and in most cases takes the government’s word for it. However, a recent case involved a court challenge to the government’s withholding of documents in response to a FOIA request under the claim they revealed confidential government employees’ deliberations that led up to creation of a policy.
When the court actually reviewed the withheld documents, it discovered that they included documents created by foreign governments or sold on public websites. The court also found that the policy at issue had been established pursuant to a Tweet from the President and not subject to any deliberative process by the underlying agency. Many of the documents also involved the response of agency officials caught off guard by the President’s Tweet which discussed how to react to it, and thus were post-decisional transmissions which are not subject to the deliberative process privilege. The court held that the deliberative process “is designed to protect the deliberative process, it is not to be a method for avoiding production of ‘inconvenient’ or embarrassing documents.”