The Privileged Few

When the courts consistently sided against President Clinton's claims of privilege during the Starr investigation, they ran contrary to past rulings.

by / November 30, 1998
A side issue of the Clinton sex scandal that received no more than cursory coverage in the general press, but which may have significant repercussions for bureaucrats, is the way the courts plowed down Clinton's various claims of privilege like stalks of wheat beneath the blades of a thresher. I do not pretend to be an expert on privilege, but having read hundreds of cases involving governmental claims that documents are protected by one kind of privilege or another, Clinton's losing streak strikes me as anomalous at best.

Three Reasons to Close Doors

There are three basic privileges government uses to block access to records. The most common is the deliberative-process privilege, which protects internal advice and recommendations, typically from a subordinate to a supervisor. The oft-stated purpose of the privilege is to protect government workers from having to operate in a fishbowl where all their recommendations are second-guessed by outsiders. The two other most used privileges are attorney-client, which protects legal advice given by a government attorney on behalf of the agency that is the client, and attorney work-product, which protects materials generated by an attorney for the government in the course of litigation or in anticipation of litigation. Typically, the work-product privilege does not outlast the completion of the litigation, although it can.

There are a handful of other privileges used by government, but none is common as the main three.

What makes the string of Clinton defeats stand out is the hands-off attitude the courts have traditionally given to the government when it asserts these privileges. While courts occasionally find that the government has overreached the scope of the privilege, accepted claims far outnumber the occasions on which the courts reject them. The parameters of the deliberative-process privilege in particular have grown over time. Records protected under the privilege are supposed to both precede a final decision, or decision not to decide, and contain opinion and advice, as opposed to factual material.

Federal government agencies have argued successfully, however, that factual material sometimes can reveal opinions by indicating how the facts were marshaled, and what the staff thought was important. This thinking eventually evolved into what is known as the "functional" test. Instead of separating fact and opinion and treating them as separate categories, under the functional test the court looks at the purpose of the information and the role it played in the decision process.

In one of the starkest examples, the U.S. Court of Appeals for the District of Columbia ruled that disclosure of logs containing information about whether Food and Drug Administration proposals had been forwarded through the Department of Health and Human Services and the Office of Management and Budget -- completely factual information -- would implicitly reveal information about the deliberative process and would allow the public interest group that had requested them to target its lobbying efforts, to the detriment of the deliberative process.

In a state application of the functional test, the California Supreme Court denied The Los Angeles Times access to the appointment calendars of former Gov. George Deukmejian because disclosure would allow the newspaper to glean more details about whom the governor had consulted.

Good Deal for Government

For government, the genius of the deliberative-process privilege is that the government need show no particular harm, the arguments can be essentially speculative, with no supporting evidence of harm, and the government gets to characterize the circumstances in which records were created in the light which best supports its claim. In a case in which I was a plaintiff against the Justice Department, the agency claimed that a document we believed was created as a rationale for an already determined policy was actually created to respond to expected criticism of its position. In other words, government often has the luxury of claiming documents predate decisions because there may be a new decision sometime in the future.

A government-wide memo issued by Attorney General Janet Reno and seconded by President Clinton in October 1993 urged agencies to disclose records that fell under privileges unless they could articulate an actual identifiable harm that would occur as a result of disclosure. However, many agencies continue to routinely withhold materials that fall under the privilege, failing to identify for courts any harm that would result from disclosure.

The willingness of courts to accept privilege claims can sometimes be astounding. A Texas appeals court agreed with the University of Texas that a list of
rejected white applicants to its law school was covered by the litigation privilege because the attorney who had requested it had indicated he would use it to contact the applicants and urge them to file a class-action discrimination suit against the university. While such a list might be protected during litigation, the fact that litigation might conceivably be facilitated by disclosure of the list does not seem to fall within the purview of the litigation privilege.

Stretching the Privilege

Even more damaging to the concept of openness has been the willingness to allow public bodies to close meetings or withhold records generated at meetings because the public body's attorney was present. It used to be that the mere presence of an attorney was insufficient to invoke privilege, but apparently no longer. The privilege is supposed to cover only the legal advice the attorney gives to the public body, not the totality of the body's discussions held during the presence of the attorney. A local school board in Virginia held a closed meeting on a controversial subject because its attorney said he was almost certain the issue would result in litigation. Speculation that an issue might lead to litigation is generally not an acceptable rationale for excluding the public.

The widespread acceptance of these privileges as a matter of course is what makes the rejection of Clinton's arguments so unusual. Though government employees have a duty to report criminal violations of which they are aware, the ability of investigators for either the government or a civilian plaintiff to force testimony or records from White House staff concerning discussions to which they were a party seems to be exactly the kind of exchange traditionally protected by these privileges. While a single episode of testimony does not necessarily do long-term damage to the privilege, the privilege is really designed to insulate the processes of a political bureaucracy from public scrutiny. It was clearly a stretch for Clinton to claim Bruce Lindsey was covered by attorney-client privilege, because Lindsey is not Clinton's attorney. But he is just as clearly a close adviser and confidante, and there appears to be little difference between the Clinton-Lindsey relationship and, say, that between a Cabinet secretary and an undersecretary.

I have no problem with doing away with privileges such as the deliberative-process privilege altogether. But it is odd that the Clinton claim was dismissed so quickly, when it so closely resembled privilege claims accepted every day of the week in less charged circumstances.

Harry Hammitt is editor/publisher of Access Reports, a newsletter published in Lynchburg, Va., covering open-government laws and information-policy issues.

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Harry Hammitt Contributing Writer