Section Review

Introduction
United States District Court Judge Mark L. Wolf and the parties in United States v. Stephen Flemmi¹ were confronted with numerous challenging, serious and novel issues during the course of that case's six-year odyssey. Many of these issues were resolved by published opinions of the District Court,² or ultimately by decisions of the 1st U.S. Circuit Court of Appeals,³ and most were the subject of intense media coverage.⁴ The case became of substantial public interest because of the disclosure of the nearly 30-year informant relationship between Flemmi and the Federal Bureau of Investigation, and a similarly long-term informant status of James "Whitey" Bulger. As a result of these disclosures, legal questions emerged relating to the government's ability to prosecute Flemmi and Bulger given certain promises made by the FBI in exchange for the information being provided principally about the so-called La Cosa Nostra (LCN).
Well before the court was in a position to resolve the ultimate questions concerning immunity from prosecution and use immunity, those involved in the litigation of this case had to deal with a myriad of issues relating to discovery and the propriety of an evidentiary hearing. Once a hearing was ordered and commenced, complex evidentiary issues evolved and discovery issues continued to plague the proceedings. Many of the pre-hearing, during-hearing or post-hearing matters would provide interesting fodder for an article. One discovery-related dispute perhaps has broader practical interest, particularly to litigators involved in either civil or criminal cases where the federal government is a party, than many of the media-covered controversies in the Flemmi case, which resulted in published decisions. This dispute revolved around certain documents to which the government asserted both the deliberative-process privilege and the work-product privilege. The court dictated a ruling into the record that, regrettably, is only available in transcript form, but which provides a thorough and comprehensible overview of the commonly misunderstood deliberative-process privilege.⁵ This article discusses the essence of that ruling in an effort to provide practitioners with the guidance they would have available to them had the decision been published and to lay the foundation for public evaluation of the federal government's initial attempts to hide behind the privilege in the face of Congressional inquiry into the FBI's relationships with its informants in Boston.
 
The deliberative-process
privilege
The deliberative process privilege is a shorthand name for the federal executive privilege, designed to protect the decision-making policies of government agencies. This common law privilege protects from disclosure advice, recommendations and opinions that are part of the decision-making process.⁶ See N.L.R.B. v. Sears Roebuck & Co., 421 U.S. 132, 151, 95 S.Ct. 1504, 1516 (1975); Bureau of Nat. Affairs v. U.S. Dept. of Justice, 742 F.2d 1484, 1496 (D.C. Cir. 1984). As the U.S.. Supreme Court noted: "Manifestly, the ultimate purpose behind this long-recognized privilege is to prevent injury to the quality of agency decisions." N.L.R.B., 421 U.S. at 151, 95 S.Ct. at 1516.
Citing both N.L.R.B. v. Sears Roebuck & Co. and Texaco Puerto Rico, Inc. v. Department of Consumer Affairs, 60 F.3d 867 (1st Cir. 1995), Judge Wolf explained that a document must be both predecisional and deliberative to be protected from disclosure by this privilege. "Typically, the documents protected involve recommendations or drafts which express personal views. Post-decisional documents explaining or justifying a decision already made are not protected."⁷ The Supreme Court elaborated on the rationale for this distinction:
The quality of a particular agency decision will clearly be affected by the communications received by the decision maker on the subject of the decision prior to the time the decision is made. However, it is difficult to see how the quality of a decision will be affected by communications with respect to the decision after the decision is finally reached; and therefore equally difficult to see how the quality of the decision will be affected by forced disclosure of such communications, as long as prior communications and ingredients of the decision making process are not disclosed.
N.L.R.B., 421 U.S. at 151, 95 S.Ct. at 1516-17. See also In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997); State of Missouri v. United States Army Corps of Engineers, 147 F.3d 708, 710 (8th Cir. 1998). In other words, "'the quality of administrative decision-making would be seriously undermined if agencies were forced to operate in a fishbowl.'" General Electric Co. v. United States Environmental Protection Agency, 18 F.Supp.2d 138, 140 (D.Mass. 1998) (Young, D.J.), quoting Wolfe v. Department of Health & Human Servs., 839 F.2d 768, 773 (D.C.Cir. 1988) (en banc).
Judge Wolf relied on a three-part test described by the 1st Circuit in Providence Journal Co. v. United States Dept. of Army, 981 F.2d 552, 557 (1st Cir. 1992), to evaluate whether a document would be viewed as predecisional. The agency seeking to protect the document from disclosure must: "(1) pinpoint a specific agency decision to which the document correlates, (2) establish that its author prepared the document for the purpose of assisting the agency official charged with making the agency decision, and (3) verify that the document precedes in temporal sequence the decision to which it relates."⁸ In requiring agencies to specifically identify the decision to which the document relates, the lower courts appear to have strayed from the Supreme Court's express caution that there is no such stringent requirement because of the recognition that the ongoing examination of policies by agencies results in the creation of documents "which do not ripen into agency decisions." N.L.R.B., 421 U.S. at 151n.18, 95 S.Ct. at 1517n.18. The court in Flemmi was sensitive to the risk of linking a document to a single decision and noted that the court must determine the primary function of the document.⁹
Again referencing the Providence Journal Co. case,¹⁰ Judge Wolf defined communications to be "deliberative [when] they relate to the process by which the policies are formulated or a part of the agency give and take by which the decision itself is made." Part of the government's burden of proof¹¹ is to establish that "it has formed an essential link in the specified consultative process, reflects the personal opinions of the writer rather than policy of the agency and, if released, would inaccurately reflect the prematurely disclosed views of the agency . . . In essence, the document must be a direct part of the deliberative process in that it makes direct recommendations or expresses opinions on legal or policy matters."¹² The executive privilege has been variously described as "not automatic,"¹³ "not absolute,"¹⁴ "discretionary,"¹⁵ and "qualified."¹⁶ Thus, the courts are required to balance the government's interests against the adverse party's need for the document. Among the factors to be considered are "the interests of the litigants, society's interest in the accuracy and integrity of fact finding, and the public's interest in honest, effective government."¹⁷ As the court in Flemmi noted, there are at least two instances in which the government will routinely be denied the protection afforded by the privilege. First, in cases where the documents might reflect on purported "governmental malfeasance," the public's interest in due process outweighs customary interests of the agency.¹⁸ Second, where the government's intent is at issue, the government cannot shield itself by asserting the privilege.¹⁹ Although the government may meet its burden of establishing the existence of a legitimate privilege and interests outweighing countervailing considerations by filing affidavits, those affidavits must be "reasonably specific."²⁰ As the D.C. Circuit held in a case involving the privilege as an exception under the FOIA: "[T]he affidavits will not suffice if the agency's claims are conclusory, merely reciting statutory standards, or if they are too vague or sweeping." Bureau of Nat. Affairs, 742 F.2d at 1497, quoting Hayden v. National Security Agency, 608 F.2d 1381, 1387 (D.C.Cir. 1979), cert. denied, 446 U.S. 937 (1980). It is important to note that the privilege can be waived by disclosure to a non-agency third party. General Electric Co., 18 F.Supp.2d at 140-41, citing Chilivis v. Securities Exch. Comm'n., 673 F.2d 1205, 1212 (11th Cir. 1982); Shell Oil Co. v. Internal Revenue Serv., 772 F.Supp. 202, 209 (D.Del. 1991). Moreover, counsel should be aware that no similar privilege is recognized under state law in Massachusetts. General Electric Co., 18 F.Supp.2d at 141.
 
The work-product privilege
The Flemmi ruling also addresses the privilege derived from the work-product doctrine. It is common for the government - as it did in Flemmi - to interpose a work-product objection in conjunction with a claim of deliberative-process privilege where government attorneys or their agents, including investigators, author the documents at issue. Citing the Supreme Court's decision in United States v. Nobles, 422 U.S. 225, 95 S.Ct. 2160 (1975), the court noted that the work-product privilege is also a qualified privilege that applies in criminal cases. It protects from disclosure certain documents prepared by an attorney [or the attorney's investigator or agent] acting for his client and in anticipation of litigation."²¹ Like the deliberative-process privilege, it can be waived. Nobles, 422 U.S. at 239, 95 S.Ct. at 2170.
The work-product doctrine exists in order to enable the
"lawyer [to] work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client's case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plans his strategy without undue and needless interference... This work is reflected, of course, in the interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways...." Id. at 237, 95 S.Ct. at 2169, quoting Hickman v. Taylor, 329 U.S. 495, 510, 67 S.Ct. 385, 395-96 (1947) (Jackson. J., concurring).
 
Application of these privileges to the Flemmi case
The documents at issue in the Flemmi case were a series of memoranda authored by the FBI's Principal Legal Advisor (PLA) in Boston, as well as a Telex and handwritten notes prepared by the same author. These documents were important to the defense because this FBI lawyer had reviewed many of the Flemmi and Bulger informant files of the FBI, and had objectively and honestly concluded that FBI agents had at least "tacitly authorized" Flemmi to participate in certain illegal activity. This candid - albeit obviously accurate - reaction to the FBI files was significant in view of the fact that it was akin to an admission by a government attorney regarding a fact that the government was steadfastly denying, i.e., that Flemmi and Bulger had been authorized by the FBI to engage in criminal conduct while serving as informants.
The government's motion for a protective order was denied, in part, based on the deliberative-process and work-product privileges. With respect to two of the PLA's memoranda, the court found that these documents were not privileged because, as to one, it memorialized events that led up to the decision of the FBI to inform the U.S. attorney, on the eve of the return of the original indictment against Flemmi, Bulger and others, that Bulger and Flemmi were informants, and the documents essentially explained the rationale for that decision. The memoranda were not predecisional; they were written after the decision was made and were not designed to assist anyone in making a future decision. The court specifically concluded that the primary, and indeed exclusive reason for the creation of these memos was to record "an extraordinary event."²²
Equally significant was the court's determination that, even if the documents would otherwise be considered privileged, because they were arguably relevant to Flemmi's due process claim of government misconduct, they would have to be disclosed. These memoranda provided evidence that the U.S. attorney had "permitted Bulger and Flemmi to be indicted in part and in effect for participating in policy-making with the LCN at a time that the person designated by the FBI to review that issue found such activity was 'at least tacitly authorized by the FBI.'"²³ The other documents were found to be protected from disclosure by one or both of the privileges because they were either written in anticipation of a potential dispute over review of the informant files by the United States Attorney's Office or concerning issues of the revelation of informant identities. Handwritten notes that were predecisional were found to be part of the PLA's deliberative process. Other notes that were written in reaction to a discovery order of the court were deemed work-product.²⁴
 
Conclusion
The documents found not to be protected by the deliberative-process privilege were important to help substantiate Flemmi's position in pretrial hearings and would have been even more critical to a trial defense of authorization had Flemmi not resolved the case by a plea. The legal issues implicated in this discovery dispute, however, should be of interest not only to those involved in or following the Flemmi case, or even to those lawyers who would appreciate a good example of the manner in which a conscientious court will evaluate the application of the privilege to a particular set of facts. Rather, the public at large needs to be cognizant of the nature, purpose and limitations of the executive privilege because, even as this article is being written, the government inclination to employ this privilege in an attempt to bury the past and avoid full disclosure of the FBI's history of and policies in dealing with its informants. The president of the United States asserted the privilege in response to a Congressional subpoena for Justice Department documents relating to the government's relationship with and handling of informants. As William Saffire of the New York Times wrote: "One reason for Bush's executive-privilege claim, unprecedented in its sweep, is: Such decisions are never to be examined by Congress lest politics influence prosecutors' judgments. But this power grab would eviscerate Congressional oversight."²⁵ In apparent recognition that, subjected to the kind of legal analysis utilized by Judge Wolf in the Flemmi case, this kind of broad assertion of executive privilege would be rejected, and in response to public criticism, the government relented and is permitting - to an extent - Congressional review of these documents.²⁶  
End notes 1. The case was originally captioned United States v. Salemme, No. CR 94-10287-MLW, because Francis J. Salemme was one of several of Stephen Flemmi's codefendants who ultimately entered guilty pleas.[back] 2. See, e.g., United States v. Flemmi, 2000 WL 32281128 (D.Mass. Nov. 14, 2000) (requiring the government to file affidavits to enable the court to determine whether a prima facie violation of F.R.Crim.P. 6(e) and Local Rule 83.2A had occurred through the dissemination of information to the media); United States v. Flemmi, 108 F.Supp.2d 39 (D.Mass. 2000) (finding that the government abused the grand jury process by using the grand jury to compel the otherwise unavailable testimony of witnesses to obtain additional evidence of specific offenses with which Flemmi was already charged), rev'd, 245 F.2d 24 (1st Cir. 2001); United States v. Salemme, 91 F.Supp.2d 141 (D.Mass. 1999) (finding that the use of the fruits of certain electronic surveillances against Flemmi was barred by FBI promises amounting to use immunity), rev'd in part, 225 F.3d 78 (1st Cir. 2000); United States v. Salemme, 164 F.Supp.2d 86 (D.Mass. 1998) (denying government's request that district judge recuse himself); United States v. Salemme, 164 F.Supp. 2d 49 (D.Mass. 1998) (related decision on court's impartiality); United States v. Salemme, 1997 WL 810057 (D.Mass. Dec. 29, 1997) (granting Flemmi an evidentiary hearing on his motion to dismiss and establishing procedural rules for that hearing); United States v. Salemme, 985 F.Supp.197 (D.Mass. 1997) (relating to the appointment of counsel under the Criminal Justice Act); United States v. Salemme, 985 F.Supp. 193 (regarding the unsealing of documents); United States v. Salemme, 978 F.Supp. 386 (D.Mass. 1997) (ordering discovery and establishing a protective order); United States v. Salemme, 978 F.Supp. 390 (D.Mass. 1997) (determining that motion to hold Acting Deputy Attorney General in contempt was moot); United States v. Salemme, 978 F.Supp. 379 (D.Mass. 1997) (ordering certain disclosures by the government concerning an individual's informant status); United States v. Salemme, 978 F.Supp. 375 (D.Mass. 1997) (orders relating to disclosure of informant status); United States v. Salemme, 978 F.Supp. 364 (D.Mass. 1997) (same); United States v. Salemme, 978 F.Supp. 343 (D.Mass. 1997) (determining that defendants entitled to Franks hearing and extensive discovery related thereto); United States v. Salemme,1997 WL 37530 (D.Mass. Jan. 13, 1997) (denying defendants' motions to dismiss certain RICO counts and predicate acts).[back] 3. United States v. Flemmi, 245 F.3d 24 (1st Cir. 2001) (adding predicate acts in superseding indictment to RICO count was not a grand jury abuse); United States v. Flemmi, 225 F.3d 78 (1st Cir. 2000), cert. denied, 531 U.S. 1170 (2001) (FBI agents lacked authority to promise informant use immunity).[back] 4. Literally hundreds of representative newspaper articles are contained in eight appendix volumes filed in support of Flemmi's Motion for Change of Venue. Indeed, two books, "Black Mass," by Dick Lehr and Gerard O'Neill, and "Deadly Alliance," by Ralph Ranalli, chronicle the proceedings in the Flemmi case, and describe the evidence adduced during the hearings in that case.[back] 5. The ruling was made on December 14, 1998, after the close of the evidentiary hearing on Flemmi's motion to dismiss the indictment. District Judge Wolf references the transcript of the ruling in his 661-page decision on Flemmi's motion and related suppression motions. 91 F.Supp.2d at 299n.61. The transcript is cited herein as "Dec. 14, 1998 Tr., at ___." [back] 6. The privilege has been included as an exemption in the provisions of the Freedom of Information Act ("FOIA"). 5 U.S.C. ß552(b)(5).[back] 7. Dec. 14, 1998 Tr., at 7.[back] 8. Dec. 14, 1998 Tr., at 8.[back] 9. Dec. 14, 1998 Tr., at 8-9, citing City of Virginia Beach, Va. v. United States Dept. of Commerce, 995 F.2d 1247, 1254 (4th Cir. 1993); N.L.R.B. v. Sears Roebuck & Co., supra.[back] 10. 981 F.2d at 159.[back] 11. See General Electric Co., 18 F.Supp.2d at 140, citing Wolfe, 839 F.2d at 774 (agency bears burden of showing that documents are predecisional and form a part of the agency's deliberative process). [back] 12. Dec. 14, 1998 Tr., at 9. [back] 13. Texaco Puerto Rico, Inc, 60 F.3d at 885.[back] 14. Id., quoting FTC v. Warner Communications Inc., 742 F.2d 1156, 1161 (9th Cir. 1984).[back] 15. Texaco Puerto Rico, Inc., 60 F.3d at 885, quoting In re Franklin Nat'l Bank Sec. Litigation, 478 F.Supp. 577, 582 (E.D.N.Y. 1979).[back] 16. Dec. 14, 1998 Tr., at 9.[back] 17. Id.[back] 18. Id., citing Texaco Puerto Rico, Inc., 60 F.3d at 885, quoting Franklin, 478 F. Supp. at 582; see also Bank of Dearborn v. Saxon, 244 F.Supp. 394, 401-03 (E.D.Mich. 1965), aff'd, 377 F.2d 496 (6th Cir. 1967).[back] 19. Dec. 14, 1998 Tr., at 10, citing In re Subpoena Duces Tecum, 145 F.3d 1422, 1424 (D.C. Cir. 1998).[back] 20. Dec. 14, 1998 Tr., at 6.[back] 21. Id. at 11-12.[back] 22. Id. at 13-14.[back] 23. Id. at 14-15. The court also found that the memoranda were not work-product because they were not created in preparation for litigation.[back] 24. Id. at 17-19.[back] 25. W. Saffire. "Executive Privilege Again," N.Y.TIMES, Jan. 3, 2002.[back] 26. See J. Geraghty. "U.S. Justice Dept. to share papers on Boston mob." BOSTON GLOBE, Feb. 28, 2002.[back]