967 P.2d 1042, City of Colorado Springs v. White, (Colo. 1998)
<br />In the cases discussed above, the courts termed the
<br />privilege at issue the "executive" privilege.
<br />Traditionally, the executive privilege has at least two
<br />components or branches: one based in the
<br />constitution and the other based in the common law.
<br />See, e.g., Sears, 421 U.S. at 150 -51, 95 S.Ct. 1504
<br />(noting that executive privilege has both
<br />constitutional and common law content); Vaughn v.
<br />Rosen, 523 F.2d 1136, 1146 (D.C.Cir.1975) ("
<br />Vaughn H "); Capital Info. Group, 923 P.2d at 34;
<br />Hamilton v. Verdow, 287 Md. 544, 414 A.2d 914,
<br />924 (Md.1980); Walker & Jones, The Deliberative
<br />Process Privilege, at 288 -90. The constitutionally
<br />based privilege is also known as the "state secrets"
<br />or "presidential communications" privilege, and is
<br />based on the principle *1048 of separation of
<br />powers. See United States v. Nixon, 418 U.S. 683,
<br />703, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974);
<br />United States v. Reynolds, 345 U.S. 1, 6 -8, 73 S.Ct.
<br />528, 97 L.Ed. 727 (1953); In re Sealed Case, 121
<br />F.3d 729, 736 & 742 (D.C.Cir.1997); see also
<br />Walker & Jones, The Deliberative Process
<br />Privilege, at 279 (noting that deliberative process
<br />privilege "is a branch of executive privilege" distinct
<br />from the "presidential version" of executive
<br />privilege); Note, Discovery of Government
<br />Documents and the Official Information Privilege,
<br />76 Colum. L.Rev. 142, 142 (1976) (hereinafter,
<br />"Note; Discovery of Government Documents ")
<br />(discussing constitutional basis of "state secrets
<br />privilege ").
<br />As the United States Court of Appeals for the
<br />District of Columbia (FN2) observed, in sorting the
<br />different facets of the executive privilege, the
<br />protection for the deliberative processes of
<br />government officials generally comes from "the
<br />common sense- common law privilege, i.e., the
<br />recognition that the Government cannot operate in a
<br />fish bowl." Vaughn II, 523 F.2d at 1146. "By
<br />'common sense - common law privilege,' " the court
<br />explained, "we mean what is usually referred to as
<br />'executive privilege,' shorn of any constitutional
<br />overtones of separation of powers." Id.; see also
<br />Sears, 421 U.S. at 150 -51 & n. 17, 95 S.Ct. 1504
<br />(noting that common law executive privilege
<br />protecting "the decision making processes of
<br />government agencies" is distinct from
<br />constitutionally based executive privilege discussed
<br />in Nixon). (FN3)
<br />Hence, the deliberative process privilege has often
<br />been referred to as the common law executive
<br />privilege. Indeed, our review of those cases which
<br />Page 8
<br />discuss the common law privilege protecting the
<br />deliberative processes of government reveals that
<br />courts have employed several names to describe the
<br />privilege. The following names have been used
<br />interchangeably (if not always precisely):
<br />"executive privilege," "deliberative process
<br />privilege," "governmental privilege," and "official
<br />information privilege." See, e.g., In re Sealed
<br />Case, 121 F.3d at 736 (noting that "the most
<br />frequent form of executive privilege raised in the
<br />judicial arena is the deliberative process privilege ");
<br />Tax Analysts v. Internal Revenue Serv., 117 F.3d
<br />607, 616 (D.C.Cir.1997) (noting that deliberative
<br />process privilege is "a variant of executive
<br />privilege "); Wolfe v. Department of Health &
<br />Human Servs., 839 F.2d 768, 773 (D.C.Cir.1988)
<br />(stating that "[t]he common law discovery privilege
<br />at issue is the executive or deliberative process
<br />privilege "); Taxation with Representation Fund v.
<br />Internal Revenue Serv., 646 F.2d 666, 676 -77
<br />(D.C.Cir.1981) (noting that deliberative process
<br />privilege is "sometimes called the 'executive' or
<br />'governmental' privilege "); Rodgers v. Hyatt, 91
<br />F.R.D.. 399, 405 (D.Colo.1980) (using
<br />"governmental" and "deliberative" privilege
<br />synonymously); Capital Info. Group, 923 P.2d at
<br />34 (holding that "executive privilege ...
<br />encompasses what other commentators have called
<br />the deliberative process privilege" and considering
<br />the terms synonymous); Times Mirror Co. v.
<br />Superior Court, 53 Cal.3d 1325, 283 Cal.Rptr. 893,
<br />813 P.2d 240, 248 n. 10 (Cal.1991) (noting that
<br />"[t]he terms 'executive privilege' and 'deliberative
<br />process privilege' refer to the same concept" and
<br />using terms interchangeably); Guy v. Judicial
<br />Nominating Comm'n, 659 A.2d 777, 782
<br />(Del. Super. Ct. 1995) (noting "executive privilege"
<br />also referred to as "official information privilege" or
<br />"deliberative process privilege "); Hamilton, 414
<br />A.2d at 920 (noting that "executive privilege" also
<br />referred to as "official information privilege ");
<br />Michigan Council of Trout Unlimited v. Department
<br />of Military Affairs, 213 Mich.App. 203, 539
<br />N.W.2d 745, 751 (Mich. Ct. App. 1995) (noting that
<br />deliberative process privilege "is sometimes called
<br />the 'executive privilege' "); 26A *1049 Charles
<br />A. Wright & Kenneth A. Graham, Jr., Federal
<br />Practice and Procedure § 5680, at 125 (1977)
<br />(stating deliberative process privilege has been
<br />known by variety of names including "executive
<br />privilege "); Weaver & Jones, The Deliberative
<br />Process Privilege, at 279 (calling deliberative
<br />process privilege a "branch of the executive
<br />privilege ").
<br />Copyright (c) West Group 2001 No claim to original U.S. Govt. works
<br />
|