deliberative process privilege in Maryland

2025The deliberative process privilege protects “confidential advisory and deliberative communications between officials and those who assist them in formulating and deciding upon future governmental action.” Hamilton v. Verdow, 287 Md. 544, 558 (1980).

2000I would hold that all of the records at issue that have not been disclosed already are exempt from disclosure on the grounds of executive privilege, and particularly the deliberative process privilege, as enunciated by this Court in Hamilton v. Verdow, 287 Md. 544 , 414 A.2d 914 (1980), and incorporated into the Maryland Public Information Act, Maryland Code (1984, 1999 Repl.Vol.), § 10-615(1) of the State Government Article. 1 This Court recognized the doctrine of executive privilege as part of Maryland law in Hamilton, 287 Md. at 562 , 414 A.2d at 924 . 2 The privilege has its foundations in

2026The deliberative process privilege under GP § 4-344 “to some extent reflects that part of the executive privilege doctrine encompassing letters, memoranda or similar internal government documents containing confidential opinions, deliberations, advice or recommendations from one governmental employee or official to another official for the purpose of assisting the latter official in the decision-making function.” Wash. Post, 360 Md. at 551 .

2022Then, under GP §4-344, a custodian “may deny inspection of any part of an interagency or intra-agency letter or memorandum that would not be available by law to a private party in litigation with the unit.” As relevant here, the exception imports into the PIA the common law protections for Executive Branch pre-decisional communications—an “interagency or intra-agency” communication—when that communication would fall within the deliberative process privilege.33 Office of the Governor v. Washington Post Co., 360 Md. 520, 551 (2000).

2024This deliberative-process privilege protects documents “‘reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.’” Stromberg Metal Works, Inc. v. Univ. of Maryland, 382 Md. 151, 165 (2004) (quoting Nat’l Labor Relations Bd. v. Sears, 47 Roebuck & Co., 421 U.S. 132, 150 (1975)).

2024The court turned to the question of whether the BDC’s model analysis fell within the deliberative-process privilege, so that the City was permitted to withhold it under GP § 4-344. 8 The privilege, said the court, applies to pre-decisional communications when disclosure would be “injurious to the consultative functions of government.” Nat’l Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975).

2024This deliberative-process privilege protects documents “‘reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.’” Stromberg Metal Works, Inc. v. Univ. of Maryland, 382 Md. 151, 165 (2004) (quoting Nat’l Labor Relations Bd. v. Sears, 47 Roebuck & Co., 421 U.S. 132, 150 (1975)).

2024In these circumstances, the Court opined that the “underpinning” of the deliberative-process privilege, “if it exists at all, is exceedingly remote and tenuous.” Id.

2024GP § 4-335. 1 The deliberative-process privilege “may prevent the disclosure of certain ‘confidential advisory and deliberative communications between officials and those who assist them in formulating and deciding upon future governmental action.’” Maryland Board of Physicians v. Geier, 241 Md.

2024See Glass v. Anne Arundel County, 453 Md. at 210 . 1 The primary issue in this case is the disputed meaning of “confidential” commercial or financial information, a term that is not defined in the MPIA.

2024An agency may withhold records or information from public inspection “if it believes that disclosure ‘would be contrary to the public interest.’” Glass v. Anne Arundel County, 453 Md. 201, 210 (2017) (quoting GP § 4-343).

2015Havilah Real Property v. Early, 216 Md.

2004Compare Hopkins v. U.S. Dept. of Housing & Urban Dev., supra, 929 F.2d 81 , 85 (staff reports containing inspectors’ professional opinions on progress and quality of construction work and recommendations to higher officials that various agency actions should be taken may be protected by § 552(b)(5); case remanded to determine whether factual and privileged contents were inextricably intertwined); and Jowett, Inc. v. Department of Navy, 729 F.Supp. 871 (D.D.C. 1989) (report of auditors hired to evaluate applicant’s claim and containing auditor’s recommendations and opinions regarding aspects of

2004Compare Hopkins v. U.S. Dept. of Housing & Urban Dev., supra, 929 F.2d 81 , 85 (staff reports containing inspectors’ professional opinions on progress and quality of construction work and recommendations to higher officials that various agency actions should be taken may be protected by § 552(b)(5); case remanded to determine whether factual and privileged contents were inextricably intertwined); and Jowett, Inc. v. Department of Navy, 729 F.Supp. 871 (D.D.C. 1989) (report of auditors hired to evaluate applicant’s claim and containing auditor’s recommendations and opinions regarding aspects of

2004See EPA v. Mink, 410 U.S. 73 , 93 S.Ct. 827 , 35 L.Ed.2d 119 (1973); NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 148-49 , 95 S.Ct. 1504, 1515-16 , 44 L.Ed.2d 29, 46-47 (1975); FTC v. Grolier, 462 U.S. 19 , 103 S.Ct. 2209 , 76 L.Ed.2d 387 (1983); Cranford v. Montgomery County, supra, 300 Md. 759 , 481 A.2d 221 .

2004See EPA v. Mink, 410 U.S. 73 , 93 S.Ct. 827 , 35 L.Ed.2d 119 (1973); NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 148-49 , 95 S.Ct. 1504, 1515-16 , 44 L.Ed.2d 29, 46-47 (1975); FTC v. Grolier, 462 U.S. 19 , 103 S.Ct. 2209 , 76 L.Ed.2d 387 (1983); Cranford v. Montgomery County, supra, 300 Md. 759 , 481 A.2d 221 .

2004See United States v. Nixon, 418 U.S. 683 , 94 S.Ct. 3090 , 41 L.Ed.2d 1039 (1974); Cheney v. U.S. District Court, — U.S.—, 124 S.Ct. 2576 , 159 L.Ed.2d 459 (2004); and Hamilton v. Verdow, supra, 287 Md. 544, 553, n. 3 , 414 A.2d 914 , 920 n. 3.

2004See United States v. Nixon, 418 U.S. 683 , 94 S.Ct. 3090 , 41 L.Ed.2d 1039 (1974); Cheney v. U.S. District Court, — U.S.—, 124 S.Ct. 2576 , 159 L.Ed.2d 459 (2004); and Hamilton v. Verdow, supra, 287 Md. 544, 553, n. 3 , 414 A.2d 914 , 920 n. 3.

2004See, however, Federal Open Market Committee v. Merrill, 443 U.S. 340, 354-55 , 99 S.Ct. 2800, 2809 , 61 L.Ed.2d 587, 599-600 (1979), making clear that § 552(b)(5) does not necessarily incorporate every privilege known to civil discovery. *164 The three specific issues, in terms of that aspect of the deliberative process privilege, are (1) whether the final cost number that was redacted from the AEC Reports is the kind of information that constitutes deliberative process material, to which an exemption under SG § 10-618(b) would apply, (2) if so, whether the privilege applies to someone like Mr

2004See, however, Federal Open Market Committee v. Merrill, 443 U.S. 340, 354-55 , 99 S.Ct. 2800, 2809 , 61 L.Ed.2d 587, 599-600 (1979), making clear that § 552(b)(5) does not necessarily incorporate every privilege known to civil discovery. *164 The three specific issues, in terms of that aspect of the deliberative process privilege, are (1) whether the final cost number that was redacted from the AEC Reports is the kind of information that constitutes deliberative process material, to which an exemption under SG § 10-618(b) would apply, (2) if so, whether the privilege applies to someone like Mr

2000The California Supreme Court, citing this Court’s decision in Hamilton, see id., 283 Cal.Rptr. 893 , 813 P.2d at 248 n. 10, held that disclosure of the documents was not in the public interest and based its reasoning, in part, on the deliberative process privilege.

2000The California Supreme Court, citing this Court’s decision in Hamilton, see id., 283 Cal.Rptr. 893 , 813 P.2d at 248 n. 10, held that disclosure of the documents was not in the public interest and based its reasoning, in part, on the deliberative process privilege.