When Government Cover-ups are a Good Thing: Preventing Exposure of Your Agency’s Decisionmaking Via the Deliberative Process Privilege

By David H. King*

At a recent meeting of an agency governing board, a scene familiar to many public agency counsel quickly unfolded. A disgruntled group of citizens attended the meeting, questioning a particular project that would soon be decided by the governing board. The group threatened to file a lawsuit, alleging that the board had made backroom deals on the project and that the agency’s officials had engaged in other nefarious activities. The group, not content to wait until the decision was made before raising their protest, repeated the all-too-familiar mantra of "the people have a right to know" among their allegations of a government conspiracy.

Such scenes play out over and over again in chambers and hearing rooms throughout the Golden State. And while it is true that California law recognizes the public’s right to know, that right is balanced against the agency’s right to protect its decision-making process — a balancing act that is the heart of the deliberative process privilege. This article examines the privilege, its scope and application, and provides six helpful facets that public agency counsel should know about the privilege.

I. OVERVIEW OF THE PRIVILEGE