CLF Opposes "Deliberative Process Privilege" in Champlin's Case, Citing Public's Right to Know | Conservation Law Foundation

CLF Opposes “Deliberative Process Privilege” in Champlin’s Case, Citing Public’s Right to Know

Brian Barth Brian Barth

Jerry Elmer, CLF Staff Attorney

Providence, RI (March 7, 2007) – The Conservation Law Foundation (CLF) today filed papers in the Champlin’s Marina case opposing the use of the so-called “deliberative process privilege” in the case because it compromises the principles of openness and accountability for government agency decisions. CLF has been one of the leading objectors to the proposal of Champlin’s to expand its facility in Block Island’s Great Salt Pond.

“CLF has always believed that the denial of Champlin’s application must be upheld by the Court,” said Jerry Elmer, CLF staff attorney working on the case. “At the same time, CLF has always advocated for governmental actions being appropriately transparent so that the public can hold officials accountable. Rejecting the deliberative process privilege upholds the public’s right to know and should have no effect whatever on the outcome of this case.”

CLF’s filing today emphasizes that the Rhode Island Supreme Court has never formally recognized this “deliberative process privilege.” CLF also cites numerous cases where the privilege has been rejected, and asserts that “even where a limited deliberative process privilege is recognized, there is no jurisdiction in the country which would recognize one upon the facts and circumstances of this case.”

CLF’s filing today comes as both sides in the case are gearing up for an evidentiary hearing on Champlin’s claims of impropriety at the CRMC. That hearing is now scheduled to begin on Mar. 19.

On Feb. 15, CLF won a significant victory when Judge Vogel indicated that, although she would not hear CLF’s motion for partial summary judgment before the evidentiary hearing, she would limit the scope of the hearing as if CLF’s motion had been heard and granted. CLF’s motion for partial summary judgment seeks dismissal of two out of three of the counts in Champlin’s complaint. If granted, Champlin’s would be left only with an administrative appeal. Judge Vogel also said that at the forthcoming evidentiary hearing she would allow only evidence relevant to Champlin’s administrative appeal.

>>About the “Deliberative Process Privilege”: Where it is recognized, the deliberative process privilege allows a judge to selectively exempt certain evidence, including agency documents and memoranda, from disclosure. Some jurisdictions, such as Massachusetts, do not recognize the privilege at all. In the Champlin’s case, Judge Vogel indicated that the deliberative process privilege would prevent inquiry by Champlin’s attorneys into the thought processes of CRMC members that informed their votes on the Champlin’s application.

The Conservation Law Foundation works to solve the environmental problems that threaten the people, natural resources and communities of New England . CLF’s advocates use law, economics and science to design and implement strategies that conserve natural resources, protect public health, and promote vital communities in our region. Founded in 1966, CLF is a nonprofit, member-supported organization. It has offices in Boston, Massachusetts; Concord, New Hampshire; Providence, Rhode Island; Montpelier, Vermont; and Brunswick, Maine.