White House Said to Impede Education Probe (Armstrong Williams Payola)

[Pirate Smile]

White House Said to Impede Education Probe

By BEN FELLER
The Associated Press
Thursday, April 14, 2005; 1:27 PM

WASHINGTON - The Bush administration is impeding an investigation into the Education Department's hiring of commentator Armstrong Williams by refusing to allow key White House officials to be interviewed, a Democratic lawmaker briefed on the review said Thursday.

In addition, Rep. George Miller, D-Calif., said Education Secretary Margaret Spellings is considering invoking a privilege that he said would require information to be deleted when the final version is publicly released, which is expected within days.

Miller called for Jack Higgins, the inspector general at the Education Department, to delay the report until Spellings agrees not to invoke "deliberative process privilege" and the White House grants interviews with current or former officials familiar with the deal.

"The public's right to know is absolutely more important than any claim of privilege that the White House or the Department of Education might make," Miller said. "The public has a right to all the facts about possible misconduct."

http://www.washingtonpost.com/wp-dyn/articles/A53329-2005Apr14.html

[nadinbrzezinski]

1. Surprise, surprsie, surprise

[UpInArms]

2. learned at his daddy's knee during the Iran-Contra hearings

stonewall, delay and defecate on the public

[Maestro]

3. Why would they want to cover any of this up?

Unless it was completely damning to the preznit. What idiots! What are they going to claim, national security? I'm an educator. NCLB is f'd up so much I don't know where to begin.

[renaissanceguy]

9. Well, they might not want the 'terrists'

i.e. teachers, to know about it.

http://www.cafepress.com/liberalissues.14744291

[TexasLawyer]

4. What are they hiding?

probably plenty!

[DeepModem Mom]

5. And who's to stop them? They pretty much get away with anything. nt

[The Backlash Cometh]

6. Guilty! Guilty! Guilty! This is NOT a national security issue which

even remotely would justify confidentiality. These people are crooked, they know they're crooked, and now we must let them know that we know they're crooked.

[babylonsister]

7. Probably impeding a probe because there's so

many more involved than Williams. And yep, I'd sure like to see who's on that list. :mad:

[punpirate]

8. Bet a steak dinner...

... to a doughnut that those "deliberative process" notes include discussions of how to cover it up and/or that the extent of the abuse is far more widespread than just the Williams case suggests.

[damntexdem]

10. Remember during the Clinton Admin, the Right clamoring that ...

no one was above the law? Now, it's administrative privilege to not release any info that would incriminate it.

[Pirate Smile]

11. That seems to be their policy and no Republicans in Congress

have the guts to stand up to them. It is really pathetic and we have got to take over either the House or Senate in 2006, otherwise they will get away with everything because there will be no one to challenge or investigate them at all.

[Moderator]

12. kick to combine

[liberal43110]

13. White House is impeding Armstrong Williams media payola investigation

From yahoo news:

http://news.yahoo.com/news?tmpl=story&u=/ap/20050415/ap_on_go_pr_wh/education_investigation

The Bush administration is impeding an investigation into the Education Department's hiring of commentator Armstrong Williams by refusing to allow key White House officials to be interviewed, a Democratic lawmaker briefed on the review said Thursday.

[Career Prole]

14. "...would require information to be deleted..."

"In addition, Rep. George Miller, D-Calif., said Education Secretary Margaret Spellings is considering invoking a privilege that he said would require information to be deleted when the final version is publicly released, which is expected within days."

What for?! A "national security" issue in the Dept. of Education?

[Carolab]

16. Gee, that "executive privilege" is sure a handy thing, ain't it?

Even keeps Democrats out of W's town halls, I guess.

What the hell is "deliberative process privilege" anyway? More double-speak.

[liberal43110]

18. GWB is out of control

This administration is completely out of control, including the way it abuses executive priviledge. Priveledge not to obey the law or provide any public information about your deeds?

Puh-leez.

[tabasco]

31. It means government in secret.

These reich-wing bastards fear the light of day, just like common back-alley criminals, because that's what they are.

[batt188]

15. God dam crooks- the whole lot of them!

:wtf:

[liberal43110]

19. Yep. Pretty much.

I cease to be amazed at what this administration does...and gets away with too.

[Missy Vixen]

17. Ooookay

Who thinks that other talking heads are also being renumerated to push * policies, and they are attempting to cover up whom that might be?

Julie

[liberal43110]

20. I hadn't even thought of that

Sometimes I get so mad at the Bush administration, I think they do these things just to be secretive. But you're right: maybe there are names they DON'T want released.

[Fire Walk With Me]

25. Rumor had it that schools would be corporate sponsored

if they couldn't get enough government funding. If true, another manner of privatizing public trusts into corporate ownership and agenda. Hopefully just rumors (only one site in Australia had a page relating to this).

[Carolab]

21. Margaret Spellings' phone number.

(202) 401 - 3000

Let's DO call

[liberal43110]

22. Thank you

Good one! I'll call tomorrow.

[Carolab]

23. "Deliberative process privilege" defined

http://www.usdoj.gov/oip/exemption5.htm

See if you think it fits.

Deliberative Process Privilege

The most commonly invoked privilege incorporated within Exemption 5 is the deliberative process privilege, the general purpose of which is to "prevent injury to the quality of agency decisions." (64) Specifically, three policy purposes consistently have been held to constitute the bases for this privilege: (1) to encourage open, frank discussions on matters of policy between subordinates and superiors; (2) to protect against premature disclosure of proposed policies before they are finally adopted; and (3) to protect against public confusion that might result from disclosure of reasons and rationales that were not in fact ultimately the grounds for an agency's action. (65)

Logically flowing from the foregoing policy considerations is the privilege's protection of the "decision making processes of government agencies." (66) In concept, the privilege protects not merely documents, but also the integrity of the deliberative process itself where the exposure of that process would result in harm. (67)

Indeed, in a major en banc decision, the Court of Appeals for the District of Columbia Circuit emphasized that even the mere status of an agency decision within an agency decisionmaking process may be protectible if the release of that information would have the effect of prematurely disclosing "the recommended outcome of the consultative process . . . as well as the source of any decision." (68) This is particularly important to agencies involved in a regulatory process that specifically mandates public involvement in the decision process once the agency's deliberations are complete. (69) Moreover, the predecisional character of a document is not altered by the fact that an agency has subsequently made a final decision (70) or even has decided to not make a final decision. (71) Nor is it altered by the passage of time in general. (72)

Traditionally, the courts have established two fundamental requirements, both of which must be met, for the deliberative process privilege to be invoked. (73) First, the communication must be predecisional, i.e., "antecedent to the adoption of an agency policy." (74) Second, the communication must be deliberative, i.e., "a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters." (75) The burden is upon the agency to show that the information in question satisfies both requirements. (76)

In determining whether a document is predecisional, an agency does not necessarily have to point specifically to an agency final decision, but merely establish "what deliberative process is involved, and the role played by the documents in issue in the course of that process." (77) On this point, the Supreme Court has been very clear:

Our emphasis on the need to protect pre-decisional documents does not mean that the existence of the privilege turns on the ability of an agency to identify a specific decision in connection with which a memorandum is prepared. Agencies are, and properly should be, engaged in a continuing process of examining their policies; this process will generate memoranda containing recommendations which do not ripen into agency decisions; and the lower courts should be wary of interfering with this process. (78)
Thus, so long as a document is generated as part of such a continuing process of agency decisionmaking, Exemption 5 can be applicable. (79) In a particularly instructive decision, Access Reports v. Department of Justice, (80) the D.C. Circuit emphasized the importance of identifying the larger process to which a document sometimes contributes. Further, "predecisional" documents are not only those circulated within the agency, but can also be those from an agency lacking decisional authority which advises another agency possessing such authority. (81) They even can be "documents which the agency decisionmaker herself prepared as part of her deliberation and decisionmaking process." (82) Lastly, it has been held that the privilege is not limited to deliberations connected solely to agency activities that are specifically authorized by Congress. (83)

In contrast, however, are postdecisional documents. They generally embody statements of policy and final opinions that have the force of law, (84) that implement an established policy of an agency, (85) or that explain actions that an agency has already taken. (86) Exemption 5 ordinarily does not apply to postdecisional documents, as "the public is vitally concerned with the reasons which did supply the basis for an agency policy actually adopted." (87) However, if a document is postdecisional in form but predecisional in its content, it may be protectible. For example, one court has held that an e-mail message generated after the relevant agency decision had been made, but which merely reiterated the agency's predecisional deliberations and the author's own recommendations, was essentially predecisional and thus protectible under Exemption 5. (88)

Many courts have confronted the question of whether certain documents at issue were tantamount to agency "secret law," i.e., "orders and interpretations which actually applies to cases before it," (89) and which are "routinely used by agency staff as guidance." (90) Such documents should be disclosed because they are not in fact predecisional, but rather "discuss established policies and decisions." (91) Only those portions of a postdecisional document that discuss predecisional recommendations not expressly adopted can be protected. (92)

Several criteria have been fashioned to clarify the "often blurred" distinction between predecisional and postdecisional documents. (93) First, an agency should determine whether the document is a "final opinion" within the meaning of one of the two "automatic" disclosure provisions of the FOIA, subsection (a)(2)(A). (94) In an extensive consideration of this point, the Court of Appeals for the Fifth Circuit held that, inasmuch as subsection (a)(2)(A) specifies "the adjudication of case[]," Congress intended "final opinions" to be only those decisions resulting from proceedings (such as that in Sears) in which a party invoked (and obtained a decision concerning) a specific statutory right of "general and uniform" applicability. (95) However, the D.C. Circuit has stated that Field Service Advice memoranda ("FSAs") issued by the Internal Revenue Service's Office of Chief Counsel are not predecisional documents, because they constitute "statements of an agency's legal position." (96) The court reached this conclusion even though the opinions were found to be "nonbinding" on the ultimate decisionmakers. (97)

Second, one must consider the nature of the decisionmaking authority vested in the office or person issuing the document. (98) If the author lacks "legal decision authority," the document is far more likely to be predecisional. (99) A crucial caveat in this regard, however, is that courts often look "beneath formal lines of authority to the reality of the decisionmaking process." (100) Hence, even an assertion by the agency that an official lacks ultimate decisionmaking authority might be "superficial" and unavailing if agency "practices" commonly accord decisionmaking authority to that official. (101) Conversely, an agency official who appears to have final authority may in fact not have such authority or may not be wielding that authority in a particular situation. (102)

Careful analysis of the decisionmaking process is sometimes required to determine whether the records reflect an earlier preliminary decision or recommendations concerning follow-up issues, (103) or whether the document sought reflects a final decision or merely advice to a higher authority. (104) Thus, agency recommendations to OMB concerning the development of proposed legislation to be submitted to Congress are predecisional, (105) but descriptions of "agency efforts to ensure enactment of policies already established" are postdecisional. (106)

Third, it is useful to examine the direction in which the document flows along the decisionmaking chain. Naturally, a document "from a subordinate to a superior official is more likely to be predecisional" (107) than is one that travels in the opposite direction: "inal opinions . . . typically flow from a superior with policymaking authority to a subordinate who carries out the policy." (108) However, under certain circumstances, recommendations can flow from the superior to the subordinate. (109) Indeed, even a policymaker's own predecisional notes to herself may be protectible. (110) Perhaps the most important factor to consider is the "'role, if any, that the document plays in the process of agency deliberations.'" (111)

Finally, even if a document is clearly protected from disclosure by the deliberative process privilege, it may lose this protection if a final decisionmaker "chooses expressly to adopt or incorporate by reference." (112) However, a few courts have suggested a less stringent standard of "formal or informal adoption." (113) Also, although mere "approval" of a predecisional document does not necessarily constitute adoption of it, (114) an inference of incorporation or adoption has twice been found to exist where a decisionmaker accepted a staff recommendation without giving a statement of reasons. (115) Nevertheless, where it is unclear whether a recommendation provided the basis for a final decision, the recommendation should be protectible. (116)

A second primary limitation on the scope of the deliberative process privilege is that of course it applies only to "deliberative" documents and it ordinarily is inapplicable to purely factual matters, or to factual portions of otherwise deliberative memoranda. (117) Not only would factual material "generally be available for discovery," (118) but its release usually would not threaten consultative agency functions. (119) This seemingly straightforward distinction between deliberative and factual materials can blur, however, where the facts themselves reflect the agency's deliberative process (120) -- which has prompted the D.C. Circuit to observe that "the use of the factual matter/deliberative matter distinction produced incorrect outcomes in a small number of cases." (121) In fact, the full D.C. Circuit has firmly declared that factual information should be examined "in light of the policies and goals that underlie" the privilege and in "the context in which the materials are used." (122)

Recognizing the shortcomings of a rigid factual/deliberative distinction, courts generally allow agencies to withhold factual material in an otherwise "deliberative" document under two general types of circumstances. (123) The first circumstance occurs when the author of a document selects specific facts out of a larger group of facts and this very act is deliberative in nature. In Montrose Chemical Corp. v. Train, for example, the summary of a large volume of public testimony compiled to facilitate the EPA Administrator's decision on a particular matter was held to be part of the agency's internal deliberative process. (124) The D.C. Circuit held that the very act of distilling the testimony, of separating the significant facts from the insignificant facts, constitutes an exercise of judgment by agency personnel. (125) Such "selective" facts are therefore entitled to the same protection as that afforded to purely deliberative materials, as their release would "permit indirect inquiry into the mental processes," (126) and so "expose" predecisional agency deliberations. (127) Thus, to protect the factual materials, an agency must identify a process which "could reasonably be construed as predecisional and deliberative." (128)

A D.C. Circuit opinion concerning a report consisting of factual materials prepared for an Attorney General decision on whether to allow former U.N. Secretary General Kurt Waldheim to enter the United States provides an illustration of this factual/deliberative distinction and of the breadth of deliberative process privilege coverage under prevailing case law. (129) The D.C. Circuit found that "the majority of factual material was assembled through an exercise of judgment in extracting pertinent material from a vast number of documents for the benefit of an official called upon to take discretionary action," and that it therefore fell within the deliberative process privilege. (130) By contrast, it also held that a chronology of Waldheim's military career was not deliberative, as it was "neither more nor less than a comprehensive collection of the essential facts" and "reflect no point of view." (131)

The second such circumstance is when factual information is so inextricably connected to the deliberative material that its disclosure would expose or cause harm to the agency's deliberations. If revealing factual information is tantamount to revealing the agency's deliberations, then the facts may be withheld. (132) For example, the D.C. Circuit has held that the deliberative process privilege covers construction cost estimates, which the court characterized as "elastic facts," finding that their disclosure would reveal the agency's deliberations. (133)

Similarly, when factual or statistical information is actually an expression of deliberative communications, it may be withheld on the basis that to reveal that information would reveal the agency's deliberations. (134) Exemption 5 thus covers scientific reports that constitute the interpretation of technical data, insofar as "the opinion of an expert reflects the deliberative process of decision or policy making." (135) It has even been extended to cover successive reformulations of computer programs that were used to analyze scientific data. (136) The government interest in withholding technical data is heightened if such material is requested at a time when disclosure of a scientist's "nascent thoughts . . . would discourage the intellectual risk-taking so essential to technical progress." (137) The Court of Appeals for the Ninth Circuit strongly echoed this view in National Wildlife Federation v. United States Forest Service, explaining as follows:

Opinions on facts and consequences of those facts form the grist for the policymaker's mill. Each opinion as to which of the great constellation of facts are relevant and important and each assessment of the implications of those facts suggests a different course of action by the agency. Before arriving at a final decision, the policymaker may alter his or her opinion regarding which facts are relevant or the likely consequences of these facts, or both. Tentative policies may undergo massive revisions based on a reassessment of these variables, during which the agency may decide that certain initial projections are not reasonable or that the likely consequences of a given course of action have been over- or underestimated. Subjecting a policymaker to public criticism on the basis of such tentative assessments is precisely what the deliberative process privilege is intended to prevent. (138)
Likewise, it is noteworthy that the D.C. Circuit has stated that the "results of . . . factual investigations" may be within the protective scope of Exemption 5. (139) However, the D.C. Circuit also has emphasized that agencies bear the burden of demonstrating that disclosure of such information "would actually inhibit candor in the decision-making process." (140)

Documents that are commonly encompassed by the deliberative process privilege include "advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated," (141) the release of which would likely "stifle honest and frank communication within the agency." (142) Accordingly, though the courts have not spoken with complete harmony on the subject, the overwhelming weight of authority now holds that "briefing materials" -- such as reports or other documents that summarize issues and advise superiors (either generally or in preparation of congressional testimony) -- are properly protected under the deliberative process privilege. (143)

A category of documents particularly likely to be found exempt under the deliberative process privilege is "drafts," (144) although it has been observed without much analysis that such a designation "does not end the inquiry." (145) It should be remembered, though, that the very process by which a "draft" evolves into a "final" document can itself constitute a deliberative process warranting protection. (146) As a result, Exemption 5 protection can be available to a draft document regardless of whether it differs from its final version. (147)

Following the 1990 census, the factual/deliberative distinction led to sharply contrasting decisions by two circuit courts of appeal, where the issue was the Commerce Department's withholding of numeric material. (148) Both the Assembly of the State of California and the Florida House of Representatives sought "adjusted" census figures for their respective states that were developed in the event that the Secretary of Commerce decided to adjust the 1990 census, a choice he opted against. (149) The Court of Appeals for the Eleventh Circuit applied a rigid "fact or opinion" test in determining whether such numerical data are protectible. (150) It viewed the census data as "opinion" that was ultimately rejected by the decisionmaker and therefore held them to be withholdable pursuant to the deliberative process privilege. (151) The Ninth Circuit, on the other hand, upheld a lower court's use of a "functional" test under which it found that the data, on "the continuum of deliberation and fact . . . fell closer to fact." (152) The Ninth Circuit ordered the California data released on the basis that disclosure would not reveal any of the Department of Commerce's deliberative processes. (153) The Ninth Circuit reached a similar conclusion in a case brought over statistical estimates compiled as part of the 2000 census. (154) As none of these cases went to the Supreme Court, this narrow conflict remains.

In a case involving purely factual data found not to fall within the deliberative process privilege, Petroleum Information Corp. v. United States Department of the Interior, the D.C. Circuit concluded that such factual information should be shielded by the privilege, or not, according to whether it involves "some policy matter." (155) It focused on "whether the agency has plausibly demonstrated the involvement of a policy judgment in the decisional process relevant to the requested documents," (156) while at the same time suggesting that more "mundane" documents should be protected when "disclosure genuinely could be thought likely to diminish the candor of agency deliberations in the future." (157) This highly questionable approach has been used by a few other courts, (158) but it should provide no more than a point of departure for any exercise of sound administrative discretion in the application of the deliberative process privilege by an agency on a case-by-case basis. (159) Indeed, a much more practical and sensible approach is that which was taken by the Ninth Circuit in National Wildlife, where it flatly rejected the suggestion that it impose such a requirement that documents contain "recommendations on law or policy to qualify as deliberative." (160)

Lastly, protecting the very integrity of the deliberative process can, in some contexts, be the basis for the protection of factual information. (161) Similarly under some circumstances disclosure of even the identity of the author of a deliberative document could chill the deliberative process, thus warranting protection of that identity under Exemption 5, (162) even in circumstances in which a final version of the document in question has been released to the public. (163) Indeed, one court has specifically noted that the danger of revealing the agency's deliberations by disclosing facts is particularly acute when the document withheld is "short." (164) Factual information within a deliberative document also may be withheld when it is impossible to reasonably segregate meaningful portions of that factual information from the deliberative information. (165)

[paineinthearse]

24. Nixon was impeached for obstruction of justice

I can't wait for the mid-terms!

[DulceDecorum]

26. How will the madness end?

[cry baby]

27. That's understandable...They're not quite done shredding. nt

[NVMojo]

28. Surprise, surprise!!!

I am so shocked that the morals and values guys in the White House would do such a thing as interfere with an investigation that would let America really know what their morals and values really are. Liars!!!

[truthisfreedom]

29. and why aren't the Dems screaming about this? WHERE IS OUR LEADERSHIP?

why aren't they making headlines over this?

[struggle4progress]

30. kick for stonewalling

[ngGale]

32. Since when do we have rights?...haven't seen...

any since Clinton was in office!