A Review of Check Your [Deliberative Process] Privilege—Revealing the Foibles of FOIA's Framing via a Ride into the Sunset/Retention Mismatch by Sunhe Wang

The 2023 Gellhorn-Sargentich Law Student Essay competition produced a winning paper authored by Shunhe Wang, a 2023 graduate of Yale Law School. In this paper, Wang describes how her own empirical research into the operation of the Freedom of Information Act (FOIA) took an unexpected turn that resulted in her identifying a crucial deficiency in the scheme for transparency and accountability created by that statute. Her work highlights important choices facing policymakers in dealing with the issues thus presented.

Shunhe began her work on the article, Check Your [Deliberative Process] Privilege—Revealing the Foibles of FOIA’s Framing via a Ride into the Sunset/Retention Mismatch, by filing 37 FOIA requests for documents in various cases long closed, with the expectation she could compare agency rationales for withholding documents under FOIA exemption 5 (which includes “the deliberative process privilege,” or DPP, among others) with the redacted content of previously withheld documents. She initially believed that this research was made possible by a 2016 amendment to FOIA removing the application of the DPP from “records created 25 years or more before the date on which the records [are] requested” (the “sunset” provision). As it turned out, the responses produced little of substance because many agencies had disposed of the requested documents—lawfully—based on document retention schedules allowing destruction after, generally, six years from document creation.

In other words, Shunhe’s article perfectly illustrates how attempted Congressional fixes to perceived statutory deficiencies can be negated by the Congress’s failure to more closely examine how the “fix” actually will work in practice in conjunction with other related statutory provisions and agency regulations. As she points out, there was no specific rationale presented in the legislative history supporting a 25-year sunset over an earlier one, though shorter periods had their advocates.

Shunhe explains that choosing the appropriate sunset period depends on how one balances the purported justifications for the DPP against the values of transparency and accountability underlying FOIA. One of the principal bases for the exemption from public disclosure is the encouragement of candor in agency decision-making, the same argument made for executive privilege in the constitutional context. If it considered the matter in any detail in 2016 in amending FOIA (which does not appear to be the case from the legislative history), Congress presumably believed that executive officials would not significantly curtail their policy and other discussions if those came to light a quarter century in the future. Would a 12-year sunset have significantly different consequences? Or would a 2 to 4-year period corresponding to the federal election cycle be more appropriate given the possibility that released documents otherwise subject to the DPP might cast “sunlight” on important recent executive determinations that might, in turn, assist voters in making their minds up about candidates for office? Shunhe canvasses the pros and cons of these and other options for a revised sunset policy and implementing regulations.

The author examines the possible alternative sunset dates only after setting out an illuminating discussion of the history of federal records disposal and the current system created jointly by the National Archives and Records Administration and individual agencies in setting records retention and disposal schedules, most of which establish a baseline of 6-years-from-record-creation date for document disposition. That discussion in her paper highlights the total mismatch between a 25-year sunset provision for DPP protection when most agencies will have disposed of the requested records long before that period comes to an end. Yet, according to Shunhe, that mismatch had not been disclosed in the literature before: FOIA experts focus on the need for disclosure and what they view as unnecessary limitations on transparency; the community of archivists and records experts concentrate their attention on records management, including the need for permanent protection of some materials and need to dispose of others. Rarely are these different aspects viewed together—a crucial gap that has, as noted above, made the 2016 FOIA sunset provision largely ineffective, but also might undercut the effectiveness of a necessary comprehensive reconsideration of the operation of the federal records system—but for this award-winning paper. Shunhe’s treatment of both aspects of the problem is a crucial first step in that reconsideration. Her examination demonstrates that the identification of an appropriate sunset period for the DPP (as well as other FOIA exemptions) requires not just balancing the purposes of the specific exemption against needs for transparency and accountability, but also a consideration of the costs and benefits of record retention and retrieval in light of longer and shorter timeframes for record disposition.

While legal scholarship that focuses on the theoretical or more general level has enriched our understanding and improved the operation of the administrative state, Shunhe Wang’s paper is a wonderful reminder that an empirical focus on even a more limited area can identify important issues that might otherwise escape attention, but are absolutely crucial to consider in attempting to create administrative structures that fully serve their purposes.

“Shunhe’s article perfectly illustrates how attempted Congressional fixes to perceived statutory deficiencies can be negated by the Congress’s failure to more closely examine how the “fix” actually will work in practice in conjunction with other related statutory provisions and agency regulations.”