Background
Josh Malone, a volunteer with a nonprofit organization, filed a Freedom of Information Act request with the Patent and Trademark Office seeking documents related to an inter partes review proceeding. The request sought information on the identity of judges, their opinions, and draft decisions circulated among nonpanel judges. The Patent and Trademark Office produced approximately one thousand five hundred pages but withheld draft decisions and emails discussing them, citing Exemption Five. Malone argued the documents were not deliberative because their circulation violated the Administrative Procedure Act and due process rights.
The court’s reasoning
The court affirmed that the withheld documents were categorically predecisional and deliberative. The deliberative process privilege protects inter-agency or intra-agency memorandums that would not be available in litigation with the agency. The court found that draft decisions and emails discussing them fall squarely within this privilege to ensure candid debate within the agency. The court rejected the argument that ex parte circulation rendered the documents non-deliberative or that allegations of misconduct created an exception to the privilege in a Freedom of Information Act case.
What it means going forward
Government agencies may continue to withhold draft decisions and internal deliberative communications from Freedom of Information Act requests even if those documents were circulated among judges not formally assigned to the panel, provided they remain predecisional and deliberative.
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