Female engineer working on maintenance in bottling plant

Ethylene Oxide Alert: Deliberative Process Privilege Found To Not Justify Withholding EtO Data in Texas

Our blog recently reported on the first jury verdict concerning alleged ethylene oxide exposure and has previously reported a number of times here generally about ethylene oxide (EtO).  Ethylene oxide is a gas commonly used to make other chemicals utilized in a variety of consumer and industrial goods, including fabric, detergents, medicines, and adhesives. It is used to sterilize medical devices and spices and to kill microorganisms in grains. EtO is a well-established sterilizing agent highly efficient at preventing bacteria from growing on, or within, products during manufacturing. It reportedly is used to sterilize more than two billion products per year, such as medical devices and hospital supplies. But ethylene oxide is acknowledged as a known human carcinogen in high-level concentrations and extended periods of exposure. We are reporting today on a recent decision by the Texas Court of Appeals concerning the expected release of EtO toxicological data — previously not disclosed pursuant to the deliberative process privilege. 

In July 2019, the Texas Commission on Environmental Quality received a request pursuant to the Public Information Act (PIA) for documents, and records relating to the commission’s proposed or final Development Support Document titled “Ethylene Oxide Carcinogenic Dose-Response Assessment.” The request also sought documents and records relating to the commission’s action to create a unit risk factor, unit risk estimate, or cancer-risk value or metric for ethylene oxide. The commission released some information, but withheld certain information that it maintained was protected by the deliberative process privilege (which “protects certain agency communications from discovery” and “predecisional and deliberative communications related to agency’s policymaking”). 

Leaving aside the procedural background and the issue of the timeliness of the commission’s request for an attorney general decision (which was discussed at length in the court’s decision), the issue before the Texas court was whether the interests protected by the deliberative process privilege were sufficiently compelling to rebut the public-disclosure presumption that arises on expiration of the PIA’s 10 business- day deadline. 

In recognizing the privilege, the court cautioned that its scope must be limited to resist the “‘inevitable temptation’ on the part of governmental litigants to interpret the exception as expansively as necessary to apply it to the particular records it seeks to withhold,” which would … undermine the “strong statement of public policy favoring public access to governmental information …” The deliberative process privilege exception to disclosure is “‘not an absolute shield’ and is to be construed in the light of the act’s mandate that information regarding the affairs of government and the official acts of those who serve the public be freely available to all.” 

The deliberative process privilege exemption in the PIA is modeled after an exemption in the Freedom of Information Act that protects “inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). “The purpose of the privilege is to protect the agency decision-making process from the inhibiting effect that disclosure of predecisional advisory opinions and recommendations might have on the ‘frank discussion of legal or policy matters’ in writing.” “The deliberative process privilege is qualified and can be overcome ‘by a sufficient showing of need.’” Courts consider multiple factors when determining whether the deliberative process privilege is overcome, including the relevance of the evidence, the availability of other evidence, the extent to which disclosure would hinder frank and independent discussion regarding contemplated policies and decisions, the interest of the party seeking the information in accurate judicial fact finding, and the presence of issues concerning alleged governmental misconduct. 

The court ultimately found that the deliberative process privilege was not on equal footing with the attorney-client privilege such that its application constitutes a compelling reason to withhold information. Unlike the attorney-client privilege, the deliberative process privilege does not “reflect a foundational tenet in law,” is not an “old and venerated” privilege and is not “unqualified.” The court’s opinion can be found here