Matt McLaughlin published “The Deliberative Process Privilege in Civil Litigation” in the New York Law Journal on March 3. The following is an excerpt.
Matthew T. McLaughlin, a partner at Venable, discusses two recent New York State court decisions which touch on the deliberative process privilege while also looking at a series of federal court decisions published in the last 12 months which further develop the deliberative process privilege.
Lawyers who practice in the field of the New York Freedom of Information Law (FOIL) and its federal counterpart, the Freedom of Information Act (FOIA), know well that the “deliberative process privilege” allows an agency to withhold from production documents that contain internal deliberations communicated within the agency.
This privilege arises explicitly from the language of both statutes. Under both bodies of law, the responding agency may insulate from a FOIL/FOIA production communications that are inter-agency or intra-agency when producing such documents would tend to inhibit the candor of agency employees, who should be allowed to express opinions honestly without fear of public disclosure.
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