deliberative process privilege in Pennsylvania

2025In Scolforo, this Court determined that “the terms reflects and deliberations in Section 708(b)(10)(i)(A) supports the conclusion that Section 708(b)(10)(i)(A) codifies the deliberative process privilege” as that principle was elucidated by our Supreme Court in Commonwealth v. Vartan, 733 A.2d 1258, 1263 (Pa. 1999) (plurality).[13] Scolforo, 65 A.3d at 1101-02 (emphasis in original).

2025Further, [S]ection 708(b)(10)(i)([A]) of the [RTK Law] exempts all predecisional deliberations where agency officials and/or employees “contemplate” or “propose” a future “course of action.” 65 P.S. §67.708(b)(10)(i)([A]). 103 A.3d at 383 (emphasis in original). 13 “The deliberative process privilege permits the government to withhold documents containing ‘confidential deliberations of law or policymaking, reflecting opinions, recommendations or advice.” Vartan, 733 A.2d at 1263 . 19 The McGowan Court held that the affidavits presented by the DEP contained specific facts establishing that the

2018The deliberative process privilege permits “the government to withhold documents containing ‘confidential deliberations of law or policymaking, reflecting opinions, recommendations or advice.’” Vartan, 733 A.2d at 1263 (plurality opinion) (citing Redland Soccer Club, Inc. v. Dep’t of the Army of the United States, 55 F.3d 827, 853 (3d Cir. 1995)).

2017The deliberative process privilege permits “the government to withhold documents containing ‘confidential deliberations of law or policymaking, reflecting opinions, recommendations or advice.’ ” Vartan, 733 A.2d at 1263 (plurality opinion) (citing Redland Soccer Club, Inc. v. Dep’t of the Army of the United States, 55 F.3d 827, 853 (3d Cir. 1995)).

2025The deliberative process privilege is another type of evidentiary privilege, which “permits the government to withhold documents containing confidential deliberations of law or policymaking, reflecting opinions, recommendations or advice.” Joe, 782 A.2d at 33 (emphasis added).

2023The deliberative process privilege “permits the government to withhold documents containing confidential deliberations of law or policymaking, reflecting opinions, recommendations or advice.” Id.

2014Although the majority opinion by Mr. Justice Saylor in LaValle did not specifically adopt a "deliberative process privilege” to support its holding in addition to the work product doctrine, it did recognize that many jurisdictions view the work product doctrine as a "subset of a broader group of principles concerned not merely with protecting deliberative processes associated with litigation, but with insulating administrative agency deliberative processes generally,” and "supported by policies concerned with facilitation of full and free communication and exchange in agency operations and pra

2013Cf. LaValle v. Office of General Counsel of the Commonwealth, 564 Pa. 482, 496 , 769 A.2d 449, 457 (2001) (“[T]his Court has not definitively adopted the deliberative process privilege.”) and In re: Interbranch Commission on Juvenile Justice, 605 Pa. 224 , 237-38 & n. 11, 988 A.2d 1269 , 1277-78 & n. 11 (2010) (Supreme Court addressed the deliberative process privilege in excluding evidence sought in Judicial Conduct Board hearing). .

2017To the extent that these privileges exist in Pennsylvania, 3 both state and federal courts of Pennsylvania have held that the deliberative process privilege and the executive, privilege are coterminous, as both “protect[] documents whose disclosure would ‘seriously hamper the function of government.’ ” See id. at 208 .

2013See Van Hine v. Department of State, 856 A.2d 204, 212 (Pa.Cmwlth.2004) (observing that the similarities of the deliberative process privilege and executive privilege are apparent, and viewing the two doctrines as "coterminous.”).

2017Dev., 580 Pa. 80 , 859 A.2d 1261 , 1266 n,2, 1269 (2004), while again noting that it had not yet formally adopted the privilege, the Court stated that it ”agree[s] with the principles we articulated in Vartan.” Most recently, in In re Interbranch Comm’n on Juvenile Justice, 605 Pa. 224 , 988 A.2d 1269, 1277-78 (2010), a plurality of the Court, without qualification or noted dissent, cited Vartan in stating, ‘.‘Under the deliberative process privilege, government officials may refuse to testify and may withhold documents containing ‘confidential deliberations of law or policymaking, reflecting

2017Dev., 580 Pa. 80 , 859 A.2d 1261 , 1266 n,2, 1269 (2004), while again noting that it had not yet formally adopted the privilege, the Court stated that it ”agree[s] with the principles we articulated in Vartan.” Most recently, in In re Interbranch Comm’n on Juvenile Justice, 605 Pa. 224 , 988 A.2d 1269, 1277-78 (2010), a plurality of the Court, without qualification or noted dissent, cited Vartan in stating, ‘.‘Under the deliberative process privilege, government officials may refuse to testify and may withhold documents containing ‘confidential deliberations of law or policymaking, reflecting

2024Indeed, “the deliberative process privilege has been determined to meet the importance prong of Rule 313.” Id.

2024This concept, known as the deliberative process privilege, “protects confidential deliberations of law, or policymaking that reflect opinions, recommendations or advice.” Leber, 928 A.2d at 268 (citation omitted).

2007Rejecting the plaintiffs attempt to “probe the mind of’ the Administrative Law Judge, the Third Circuit Court of Appeals stated: “It has long been recognized that attempts to probe the thought and decision making processes of judges and administrators are generally improper.” Grant v. Shalala, 989 F.2d 1332, 1344 (3rd Cir.1993); Accord, Commonwealth v. Vartan, 557 Pa. 390, 733 A.2d 1258 (Pa.1999) (plurality opinion) (citing jurisdictions endorsing a deliberative process privilege). ¶ 22 Herein, both parties cite to Vartan in support of their respective positions in their briefs.

2007Rejecting the plaintiff's attempt to "probe the mind of" the Administrative Law Judge, the Third Circuit Court of Appeals stated: "It has long been recognized that attempts to probe the thought and decision making processes of judges and administrators are generally improper." Grant v. Shalala, 989 F.2d 1332, 1344 (3rd Cir.1993); Accord, Commonwealth v. Vartan, 557 Pa. 390 , 733 A.2d 1258 (Pa.1999) (plurality opinion) (citing jurisdictions endorsing a deliberative process privilege). ¶ 22 Herein, both parties cite to Vartan in support of their respective positions in their briefs.

1999The deliberative process privilege permits the government to withhold documents containing “confidential deliberations of law or policymaking, reflecting opinions, recommendations or advice.” Redland Soccer Club, Inc. v. Department of the Army of the United States, 55 F.3d 827, 853 (3d Cir.1995), citing In re Grand Jury, 821 F.2d 946, 959 (3d Cir.1987) (citing NLRB v. Sears Roebuck & Co., 421 U.S. 132, 150-54 , 95 S.Ct. 1504 , 44 L.Ed.2d 29 (1975); EPA v. Mink, 410 U.S. 73 , 89 & n. 16, 93 S.Ct. 827 , 836-37 & n. 16, 35 L.Ed.2d 119 (1973)), cert. denied sub. nom., Colafella v. United States, 4

1999The deliberative process privilege permits the government to withhold documents containing “confidential deliberations of law or policymaking, reflecting opinions, recommendations or advice.” Redland Soccer Club, Inc. v. Department of the Army of the United States, 55 F.3d 827, 853 (3d Cir.1995), citing In re Grand Jury, 821 F.2d 946, 959 (3d Cir.1987) (citing NLRB v. Sears Roebuck & Co., 421 U.S. 132, 150-54 , 95 S.Ct. 1504 , 44 L.Ed.2d 29 (1975); EPA v. Mink, 410 U.S. 73 , 89 & n. 16, 93 S.Ct. 827 , 836-37 & n. 16, 35 L.Ed.2d 119 (1973)), cert. denied sub. nom., Colafella v. United States, 4

2025In Scolforo, this Court determined that “the terms reflects and deliberations in Section 708(b)(10)(i)(A) supports the conclusion that Section 708(b)(10)(i)(A) codifies the deliberative process privilege” as that principle was elucidated by our Supreme Court in Commonwealth v. Vartan, 733 A.2d 1258, 1263 (Pa. 1999) (plurality).[13] Scolforo, 65 A.3d at 1101-02 (emphasis in original).

2014Cf. Office of the Governor v. Scolforo, 65 A.3d 1095 (Pa.Cmwlth.2013) (en banc) (incorporation of the privilege into the RTKL exception obviates the need to analyze the deliberative process privilege separately from the predecisional deliberative exception).

2017Dev., 580 Pa. 80 , 859 A.2d 1261 , 1266 n,2, 1269 (2004), while again noting that it had not yet formally adopted the privilege, the Court stated that it ”agree[s] with the principles we articulated in Vartan.” Most recently, in In re Interbranch Comm’n on Juvenile Justice, 605 Pa. 224 , 988 A.2d 1269, 1277-78 (2010), a plurality of the Court, without qualification or noted dissent, cited Vartan in stating, ‘.‘Under the deliberative process privilege, government officials may refuse to testify and may withhold documents containing ‘confidential deliberations of law or policymaking, reflecting

2017Dev., 580 Pa. 80 , 859 A.2d 1261 , 1266 n,2, 1269 (2004), while again noting that it had not yet formally adopted the privilege, the Court stated that it ”agree[s] with the principles we articulated in Vartan.” Most recently, in In re Interbranch Comm’n on Juvenile Justice, 605 Pa. 224 , 988 A.2d 1269, 1277-78 (2010), a plurality of the Court, without qualification or noted dissent, cited Vartan in stating, ‘.‘Under the deliberative process privilege, government officials may refuse to testify and may withhold documents containing ‘confidential deliberations of law or policymaking, reflecting

2021See, e.g., Gov’t Land Bank, 671 F.2d 663 ; Am.

2021See, e.g., Gov’t Land Bank, 671 F.2d 663 ; Am.

1999Hamilton v. Verdow, 287 Md. 544 , 414 A.2d 914, 924 (1980) citing, Kaiser Aluminum and Chemical Corp. v. United States, 141 Ct. Cl. 38 , 157 F.Supp. 939, 944 (1958).

1999Hamilton v. Verdow, 287 Md. 544 , 414 A.2d 914, 924 (1980) citing, Kaiser Aluminum and Chemical Corp. v. United States, 141 Ct. Cl. 38 , 157 F.Supp. 939, 944 (1958).

1999The deliberative process privilege permits the government to withhold documents containing “confidential deliberations of law or policymaking, reflecting opinions, recommendations or advice.” Redland Soccer Club, Inc. v. Department of the Army of the United States, 55 F.3d 827, 853 (3d Cir.1995), citing In re Grand Jury, 821 F.2d 946, 959 (3d Cir.1987) (citing NLRB v. Sears Roebuck & Co., 421 U.S. 132, 150-54 , 95 S.Ct. 1504 , 44 L.Ed.2d 29 (1975); EPA v. Mink, 410 U.S. 73 , 89 & n. 16, 93 S.Ct. 827 , 836-37 & n. 16, 35 L.Ed.2d 119 (1973)), cert. denied sub. nom., Colafella v. United States, 4

1999The deliberative process privilege permits the government to withhold documents containing “confidential deliberations of law or policymaking, reflecting opinions, recommendations or advice.” Redland Soccer Club, Inc. v. Department of the Army of the United States, 55 F.3d 827, 853 (3d Cir.1995), citing In re Grand Jury, 821 F.2d 946, 959 (3d Cir.1987) (citing NLRB v. Sears Roebuck & Co., 421 U.S. 132, 150-54 , 95 S.Ct. 1504 , 44 L.Ed.2d 29 (1975); EPA v. Mink, 410 U.S. 73 , 89 & n. 16, 93 S.Ct. 827 , 836-37 & n. 16, 35 L.Ed.2d 119 (1973)), cert. denied sub. nom., Colafella v. United States, 4

1999Hamilton v. Verdow, 287 Md. 544 , 414 A.2d 914, 924 (1980) citing, Kaiser Aluminum and Chemical Corp. v. United States, 141 Ct. Cl. 38 , 157 F.Supp. 939, 944 (1958).

1999Hamilton v. Verdow, 287 Md. 544 , 414 A.2d 914, 924 (1980) citing, Kaiser Aluminum and Chemical Corp. v. United States, 141 Ct. Cl. 38 , 157 F.Supp. 939, 944 (1958).

2020Importantly, the deliberative process privilege does not apply to factual information, “so long as the factual information is severable from the advice or underlying confidential deliberation of law or policymaking.” Ario v. Deloitte & Touche LLP (In re Objections of Liquidator to the Defendants' Notices of Intent), 934 A.2d 1290, 1293 (Pa. Cmwlth. 2007).

2018Importantly, the deliberative process privilege does not apply to factual information, “so long as the factual information is severable from the advice or underlying confidential deliberations of law or policymaking.” Deloitte & Touche, 934 A.2d at 1293 .

2025Id. at 982 ; see also United States v. Zubaydah, 595 U.S. 195, 209 (2022) (stating that “the Government bears the burden of showing that the privilege should apply”); League of Women Voters v. 20 A privilege is a “special legal right, exemption, or immunity granted to a person or class of persons[.]” Privilege, BLACK’S LAW DICTIONARY (12th ed. 2024). [J-44-2025] - 22 Commonwealth, 177 A.3d 1010, 1018 (Pa. Commw. 2017) (“The government bears the initial burden to prove that the deliberative process privilege is applicable.”).

2020“Moreover, courts must narrowly construe the deliberative process privilege.” League of Women Voters, 177 A.3d at 1018 (citing One Beacon Ins.

2004The court determined that the deliberative process privilege protected unfunded grant applications from disclosure; “[o]nce the applications are acted upon, i.e. granted, the applications are public records subject to disclosure.” Id. at 1264 . 2 Senior Judge Jiuliante dissented without filing an opinion.

2004The court determined that the deliberative process privilege protected unfunded grant applications from disclosure; "[o]nce the applications are acted upon, i.e. granted, the applications are public records subject to disclosure." Id. at 1264 . [2] Senior Judge Jiuliante dissented without filing an opinion.

2025Id. at 982 ; see also United States v. Zubaydah, 595 U.S. 195, 209 (2022) (stating that “the Government bears the burden of showing that the privilege should apply”); League of Women Voters v. 20 A privilege is a “special legal right, exemption, or immunity granted to a person or class of persons[.]” Privilege, BLACK’S LAW DICTIONARY (12th ed. 2024). [J-44-2025] - 22 Commonwealth, 177 A.3d 1010, 1018 (Pa. Commw. 2017) (“The government bears the initial burden to prove that the deliberative process privilege is applicable.”).

2025Further, [S]ection 708(b)(10)(i)([A]) of the [RTK Law] exempts all predecisional deliberations where agency officials and/or employees “contemplate” or “propose” a future “course of action.” 65 P.S. §67.708(b)(10)(i)([A]). 103 A.3d at 383 (emphasis in original). 13 “The deliberative process privilege permits the government to withhold documents containing ‘confidential deliberations of law or policymaking, reflecting opinions, recommendations or advice.” Vartan, 733 A.2d at 1263 . 19 The McGowan Court held that the affidavits presented by the DEP contained specific facts establishing that the

2025For example, the Court noted that the averments in one affidavit “demonstrate[d] that the substantive content of that memo consist[ed] of un-finalized and summarized rough draft reports of the Perkiomen Creek re-designation report.” Id., 103 A.3d at 384 .