Federal Circuit Weighs in on Split Re Authority to Invocate Deliberative Process Privilege

Per the Federal Circuit in Marriott Intern. Resorts, L.P. v. U.S., --- F.3d ----, 2006 WL 258458 (Fed. Cir. Feb 03, 2006):

The "Agency head" requirement originated in the Supreme Court's United States v. Reynolds, 345 U.S. 1, 7 (1953) opinion, which involved tort claims stemming from a late 1940s Air Force plane crash. 345 U.S. at 2-3. In Reynolds, the court upheld the Secretary of the Air Force's refusal to turn over various military documents as privileged under the "military and state secrets privilege." Id. at 7. Reynolds noted that the privilege was not to be lightly invoked and thus required a "formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer." Id. at 7- 8 (emphasis added). This passage in Reynolds gave rise to the "Agency head" invocation rule.

Unlike Reynolds, however, the present case involves the deliberative process privilege, not the military and state secrets privilege. On this point, our sister circuits have split over whether the Agency head invocation rule outlined in Reynolds applies to the deliberative process privilege as well as the military and state secrets privilege. See Dep't of Energy v.. Brett, 659 F.2d 154 (Temp.Emer.Ct.App.1981) (holding the trial court erred in ruling the deliberative process privilege could only be invoked by an Agency head) ; Landry v. Fed. Deposit Ins. Corp., 204 F.3d 1125, 1135 (D.C.Cir.2000) (commenting that lesser officials can invoke the deliberative process and law enforcement privileges); Branch v. Phillips Petroleum Co., 638 F .2d 875, 882-83 (5th Cir.1981) (commenting that, while Reynolds indicates Agency head invocation is required, the Equal Employment Opportunities Commission (EEOC) sufficiently complied when the director of its Houston office, a subordinate, invoked the privilege on the EEOC's behalf). Contra United States v. O'Neill, 619 F.2d 222, 225 (3d Cir.1980) (rejecting invocation of executive privilege by an attorney rather than the department head). For the following reasons, this court determines the majority rule, as explained by the United States Court of Appeals for the District of Columbia Circuit in Landry, applies in this circuit.