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

Harry Hammitt  |  Contributing Writer