Government Contracting Database
Deliberative Process Privilege
The following excerpt from Matter of Charlesgate Const. Co., LBCA No. 96-BCA-2, LBCA No. 96-BCA-7 provides an excellent overview of this privilege:
As observed by the Department of Transportation Board of Contract Appeals, “[t]he [deliberative process] privilege extends to intra-government documents reflecting advisory opinions, recommendations, and deliberations that comprise a part of the process by which governmental decisions and policy are formulated.” Federal Data Corp., DOTCAB No. 2389, 91-3 BCA 24,063; Carl Zeiss Stiftung v. VEB Carl Zeiss, Jena, 40 F.R.D. 318 (D.D.C. 1966). The deliberative process privilege should be narrowly construed. Unisys Corp. v. Department of Commerce, GSBCA No. 12823-COM, 95-2 BCA 27,903. The Department bears the burden to prove that the requested documents are protected from discovery by the deliberative process privilege.
Walsky Construction Co. v. United States, 20 Cl. Ct. 317 (1990).
To protect the specified documents from discovery, the Department must show that the documents are pre-decisional and deliberative. As stated by the U.S. Claims Court, “[a] document is ‘pre-decisional’ if it precedes, in temporal sequence, the ‘decision’ to which it relates.” Walsky Construction Co. v. United States, supra, (quoting Senate of Puerto Rico v. United States Dept. Of Justice, 823 F.2d 574 (D.C. Cir. 1987)); see also Federal Data Corp., supra. The decision to which the claim of privilege relates is the Contracting Officer’s final decision dated November 3, 1995. Any documents originated after November 3, 1995, would not be protected from disclosure by the deliberative process privilege. As described in the Declaration of Raymond Uhalde, document 24 is dated July 25, 1996, and the deliberative process privilege would not apply to that document. The Department has described documents 25 and 30 as undated memorandums, and has offered no further proof of the pre-decisional nature of the documents. From the Department’s description of documents 25 and 30, the Board cannot find that these documents are pre-decisional. The Department had failed to show that documents 24, 25, and 30, satisfy the pre-decisional requirement for the assertion of the deliberative process privilege.
The documents must also “address ‘a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters.”‘ Walsky Construction, supra, (quoting Vaughn v. Rosen, 523 F.2d 1136 (D.C. Cir. 1975)); see also Unisys Corp., supra. As contrasted with the descriptions of documents 3 and 4, which state that the documents contain “options and recommendations” for the Contracting Officer’s consideration, the descriptions of documents 2, 5, and 6, do not indicate that the documents contain any recommendations or opinions relating to Appellant’s claim. The Department has failed to show that documents 2, 5, and 6, are deliberative in nature, and therefore, the deliberative process privilege will not protect documents 2, 5, and 6, from discovery.
As described in the Uhalde declaration, only documents 3 and 4 may arguably come within the protection of the deliberative process privilege. However, an asserted claim of privilege must specifically describe the material that is allegedly privileged, and must state the reasons for preserving the confidentiality of the requested documents. Automar IV Corp., DOTCAB No. 1867, 88-2 BCA 20,821, (citing Mobile Oil Corp. v. Department of Energy, 520 F. Supp. 414 (N.D.N.Y. 1981)). The Department’s descriptions of documents 3 and 4 fall far short of that standard.
Furthermore, factual information contained in the purportedly privileged documents is not protected from disclosure where the factual information can be separated from the opinions and recommendations contained in the documents. Federal Data Corp., supra. The deliberative process privilege also does not apply to recommendations that the agency chooses to incorporate either expressly or by reference into its final decision. Unisys Corp., supra; U.S. West Information Systems, Inc., GSBCA No. 9103-P, 87-3 BCA 20,204. The Department has failed to prove, as is its burden, that the recommendations and opinions contained in documents 3 and 4 cannot be separated from any factual information contained in the documents, or that the recommendations and opinions were not incorporated into the Contracting Officer’s final decision denying Appellant’s claim. In the absence of such a showing, the Board cannot find that documents 3 and 4 are protected from discovery by the deliberative process privilege.
Certainly the need for full discovery is compelling in a case such as this, and refusal to do so smacks of a search for tactical advantage in a sporting contest rather than a search for truth. The Board, therefore, takes a dim view of the invocation of privilege generally where the Appeal File prepared by the Contracting Officer is supposed to contain all documents relevant to the contract dispute.
The Board finds that the Department has not proven the requirements for the invocation of the deliberative process privilege in any instance in which the Department relies solely upon the deliberative process privilege. All of those requested documents, therefore, shall be promptly produced and disclosed to Appellant. It appears that those documents are central to an analysis of the delay claim.
Matter of Charlesgate Const. Co., LBCA No. 96-BCA-2, LBCA No. 96-BCA-7.
Updated: June 21, 2018