The deliberative process privilege protects communications made between governmental personnel, or between governmental personnel and outside consultants, which consist of advisory opinions and recommendations preliminary to the formulation of agency policy. 1
McCormick on Evidence, sec. 108 (6th Ed. 2006). The principle behind the privilege is to encourage the free flow of information in the interest of establishing agency policy only after consideration of a full array of contrasting views. The assumption being that candor will be enhanced and the quality of governmental decision making process improved. Id. It also protects against premature and potentially misleading public disclosure of agency action and helps ensure that the governmental decision makers will be judged solely on the quality of their decisions without regard to options considered and discarded. Id.
To come within the privilege, the communication must have been made prior to the finalization of the policy and must have constituted opinion or evaluation as opposed to mere reporting of objective facts. Id. However, factual information that reveals the deliberative processes of the agency is protected. Id.
So, in what situations does this privilege apply? In the administrative law context would deliberative process privilege act to prevent discovery of an Administrative Law Judge’s internal thoughts, notes, e-mails, communications, drafts of opinions, and other documents or communications which pertain to the Administrative Law Judge’s thoughts or opinions of a case prior to the creation of his or her ultimate written recommended decision?
The Deliberative Process Privilege Is Recognized Under Federal Law and Most States’ Laws
A century ago, the United States Supreme Court declared it “wholly improper” to subject decision makers to the rigors of an “elaborate cross-examination with regard to the operation of their minds.” Chicago, Burlington, & Quincy Railway Co. v. Babcock, 294 U.S. 585, 593, 27 S.Ct. 326, 51 L.Ed. 636 (1907). Therein, the Court declared:
Jurymen cannot be called, even on a motion for a new trial in the same case, to testify to the motives and influences that led to their verdict…Similar reasoning was applied to a judge….all exhibiting on cross-examination the confusion of the members’ minds, to attack in another proceeding the judgment of a lay tribunal, which is intended, so far as may be, to be final, notwithstanding mistakes of fact or law.
A few decades later, the United States Supreme Court created a concept (and the term as used today) known as “the deliberative process privilege.” See: United States v. Morgan, 313 U.S. 409, 61 S.Ct. 999, 85 L.Ed. 1429 (1941). In Morgan, an action was brought against the United States and the Secretary of Agriculture. The Court noted that a deposition of the Secretary resembled a judicial proceeding and proclaimed that “an examination of a judge would be destructive of judicial responsibility.” Id. 313 U.S. at 422, 61 S.Ct. 999. The Court concluded that “[j]ust as a judge cannot be subjected to such a scrutiny, so the integrity of the administrative process must be equally respected.” Id.
Since Morgan, a number of jurisdictions have utilized the rationale of that case to prohibit disclosure of the thought processes of administrative law judges. In Grant v. Shalala, 989 F.2d 1332, 1344 (3rd Cir. 1993), for instance, a plaintiff who had been denied social security benefits brought a case against the Secretary of the U.S. Department of Health and Human Services. The plaintiff claimed the administrative law judge was biased against the claimants. Rejecting the plaintiff’s attempt to “probe the mind of” the Administrative Law Judge, the Third Circuit Court of Appeals stated: “It has long been recognized that attempts to probe the thought and decision making processes of judges and administrators are generally improper.” Accord, Commonwealth v. Vartan, 557 Pa. 390, 733 A.2d 1258 (Pa. 1999)(Plurality opinion)(citing jurisdictions endorsing a deliberative process privilege).
The Seventh Circuit has specifically recognized the deliberative process privilege. See: United States v. Farley, 11 F.3d 1385, 1389 (7th Cir. 1993)(Staff memoranda to senior officials of the Federal Trade Commission with recommendations, legal interpretations and drafts of litigation documents were within the deliberative process privilege.) In cases where the privilege applies under federal law, the government cannot be required to produce documents within the deliberative process privilege unless the opposing party makes a showing that its need for the documents outweighs the government’s interest in not disclosing them and, relevance alone, is an insufficient reason for breaching them while lack of relevance, as a matter of law, precludes the showing of need. Id.
While the question of privilege for government agency deliberations has arisen relatively infrequently in the context of state government, the majority of states that have addressed the issue have upheld the existence of a qualified privilege on the federal model. 1 McCormick on Evidence, sec. 108 (6th Ed. 2006), fn. 37 and cases cited therein. In most states, then, individuals “acting in a judicial capacity…may not be required to answer inquiries into mental process by which their decisions were reached.” Merriam v. Salem, 112 N.H. 267, 268 293 A.2d 596, 598 (1972)(Could not inquire into mental process of town’s board of adjustment which denied a zoning variance); Maryland State Board of Dental Examiners v. Fisher, 123 Md. App. 322, 327, 718 A.2d 627, 630 (1997)(Dentist was not entitled to depose disciplinary board members because he did not make a strong showing of fraud or extreme circumstances that would justify such an intrusion into the Board’s deliberative process.”); Leber v. Stretton, 928 A.2d 262, 2007 PA Super 172 (2007)(Judges could not be compelled to divulge their deliberative process or conduct during an official proceeding).
Illinois Has Recognized the Application Of The Deliberative Process Privilege to the Judicial Branch, But Has Specifically Rejected the Application of the Privilege to the Executive Branch
The extension of existing privileges or establishment of a new privilege is, according to the Illinois Supreme Court, a matter best deferred to the legislature. Cleary and Graham’s Handbook of Illinois Evidence (8th Ed., 2004), sec. 501.1, citing People ex rel. Birkett v. City of Chicago, 184 Ill. 2d 521, 705 N.E.2d 49 (1998)(Indicating that the adoption of a governmental deliberative privilege is best left to the legislature). There does not appear to be any statutory privileges that would render an administrative law judge’s notes or internal communications privileged. See: Cleary and Graham’s Handbook of Illinois Evidence (8th Ed., 2004), sec. 503 generally (discussing Illinois statutory privileges) and specifically sec. 503.7 (discussing compulsory government reports, public records and research data); Compare with the provisions of the Unemployment Compensation Act rendering information obtained by the director confidential, 820 ICLS 405/1900, thus foreclosing testimony by an employee of the department that plaintiff in a personal injury action had stated that he was able to work. Smith v. Illinois Valley Ice Cream Co., 20 Ill. App. 2d 312, 156 N.E.2d 361 (1959).
In 1983, the Illinois Supreme Court, in surveying all privileges currently applicable in Illinois, stated that “the source of all privileges currently applicable in Illinois, with the exception of the attorney-client privilege, is statutory.” People v. Sanders, 99 Ill. 2d 262, 682, 457 N.E.2d 1241, 1245 (1983). Accordingly, Illinois courts have often rebuffed those who have sought judicial recognition of new privileges. See: 11 Ill. Practice Courtroom Handbook on Illinois Evidence, sec. 501:1 (2007 ed.) and cases cited therein.
For instance, in People ex rel. Birkett v. City of Chicago, 292 Ill. App. 3d 745, 686 N.E.2d 66, 73 (2nd Dist. 1997), aff’d 184 Ill. 2d 521, 705 N.E.2d 48 (1998) the court specifically rejected the deliberative process privilege when asserted by the executive branch. In Birkett, small cities which surrounded an airport owned by a larger city sued the larger city, alleging it had expanded airport facilities without obtaining necessary approval. After the defendant city refused to produce documents relating to plans of past, present, and proposed alterations and construction at the airport, based on its assertion of deliberative process privilege, the trial court granted the plaintiffs’ motion to compel. The appellate court, in a very detailed analysis of federal and state law, along with scholarly literature, found that no such privilege existed in Illinois and that judicial creation of such a privilege would be bad policy:
We conclude that judicially creating the deliberative process privilege would adversely affect the integrity of the judiciary and increase its administrative burden but also would disadvantage parties bringing legal actions against local governments and state agencies. We decline, therefore, to create this privilege as a matter of common law and leave to the legislature the decision of whether to craft such a privilege.
Id. at 755.
In spite of the appellate court’s admonition against judicially creating a deliberative privilege, the same court went on to recognize the privilege when it was applied to the judicial branch seven years later in Thomas v. Page, 361 Ill. App. 3d 484, 837 N.E.2d 483(2nd Dist. 2005). In Thomas, the court, in addressing certified questions on interlocutory appeal, recognized the “judicial deliberation privilege” protecting from disclosure in subsequent litigation confidential communications among judges and their staffs. The court identified strong public policy supporting protection of intra-court communications, avoidance of burdens on the judicial decision-making process, and concerns about chilling effects that potential disclosure would bring to the process. In so ruling, the court noted: “It is well-settled that a judge may not be asked to testify as to his or her mental impressions or process in reaching a judicial decision.” 361 Ill. App. 3d at 488. See also: Illinois Judicial Ethics Committee Opinion No. 07-04 (September 7, 2007), 2007 WL 5986804 (Ill.Jud.Eth.Comm.)(Discussing generally the application of the privilege if a judge were subpoenaed as a witness); Hunter Trial Handbook for Illinois Lawyers Civil, 2008, sec. 32:32.50 discussing the judicial deliberation privilege. The Thomas court also made it clear that in Illinois, the deliberative process privilege, if it applies, is absolute. Id. 
The Legal Principles Underlying the Thomas Opinion, Coupled With A Factual Distinction of the Birkett Decision, Leave Open the Possibility of The Application of the Deliberative Process Privilege to Administrative Law Judges Under Illinois Law
It has long been recognized that administrative law judges, while not part of the judicial branch of government are, nonetheless, acting in a quasi-judicial role. For instance, in extending absolute immunity to persons who perform functions akin to the judicial process, the United Supreme Court recognized that, “There can be little doubt that the role of the modern…administrative law judge…is ‘functionally comparable’ to that of a judge.” Butz v. Economou, 438 U.S. 478, 513, 98 S.Ct. 2894, 2914, 57 L.Ed.2d 895 (1978).
The Thomas decision leaves no doubt that the deliberative process privilege applies to Judges. While the Birkett decision refused to apply the deliberative process privilege to the executive branch of government, it did so in a factual situation where the governmental agency at issue was not acting in a quasi-judicial role. It is possible, then, to read both decisions consistently to apply the deliberative process privilege to branches of government other than the judiciary when those branches of government are acting, like administrative law judges do, in a judicial role.
This same reasoning was applied in a recent decision by the Illinois Pollution Control board in ruling that the internal thought processes of village aldermen were not discoverable in that case. In Fox Morain v. United city of Yorkville, 2008 WL 4817554 (Ill.Pol.Control Bd.), Fox Morain filed a petition for review asking the Board to review a decision of Yorkville’s decision on petitioner’s proposed siting of a pollution control facility in Yorkville. Fox Moraine appealed to the Board on the grounds that the city’s decision was fundamentally unfair because various council members were biased and the City’s findings were against the manifest weight of the evidence.
Fox Morain sought to compel various alderman to answer questions about their individual feelings, intentions and beliefs about the case. Yorkville objected and directed the alderman not to answer on the basis that the questions invaded the deliberative process. Moraine, in response, cited to the Birkett case, supra for the proposition that no deliberative process is recognized in Illinois which protects government officials from disclosure. Yorkville responded by distinguishing Birkett on the grounds that in Birkett the requests asked for documents and communications relating to applications for airport modifications and plans and discussions regarding future airport plans, whereas, the questions in Fox Morain were seeking to examine individual council members about their mental processes and beliefs relating to their vote.
The Board agreed with Yorkville, citing the Thomas decision, supra for the proposition that the Birkett decision did not apply to judicial officers and that judicial officers are entitled to a deliberative privilege that prohibits a judge from being asked to testify about his or her mental impressions or processes in reaching a judicial decision. The Board then likened the village board’s role in the case as one where they were called upon to adjudicate (not legislate) and, for that reason held that, “the judicial deliberative process privilege applie[d] to the quasi-judicial siting decision reached …by Yorkville.”
Whether the deliberative process privilege applies to prevent discovery of an administrative law judge’s deliberative processes may depend on whether the case is pending in state or federal court and whether state or federal law applies. If federal law applies, the deliberative process privilege will apply and discovery of documents or items protected by the privilege will only be had upon a showing that need for such discovery outweighs the government’s interest in not disclosing them.
If Illinois state law applies, then the answer is less clear and will turn on the court’s interpretation of, and application of, the Thomas and Birkett decisions. While Birkett clearly refused to apply the privilege to the executive branch, the principles underlying the Thomas decision leave open the possibility that the privilege may apply if that branch of government is acting in a judicial role which, arguably, an Administrative Law Judge is doing. This reasoning was accepted by the Illinois Pollution Control Board in the Fox Morain decision. If the state law deliberative privilege as outlined in Thomas applies to Administrative Law Judges, the privilege will be absolute and will not be overcome by a showing that need for the material outweighs the government’s interest.
 Philip Fowler and Daniel Jackson have a wide ranging litigation practice and, either individually or in concert, have represented clients before various administrative agencies, such as the Department of Professional Regulation, the Department of Children & Family Services, the Attorney Registration and Disciplinary Commission, the Judicial Inquiry Board, the Illinois Department of Revenue, the Board of Tax Appeals, the Equal Employment Opportunity Commission, and the Illinois Department of Human Rights.
 Section 7(1)(f) of the Illinois Freedom of Information Act protects from disclosure to the public, “[p]reliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated.” 5 ILCS 140/7(1)(f)(1994). However, merely because these disclosures are exempt from disclosure to the general public, does not mean they are not discoverable by a civil litigant. The court has refused to “transform[ ] the exemption of the [Freedom of Information] Act into a testimonial privilege.” Birkett v. City of Chicago, 292 Ill. App. 3d 745, 751, 686 N.E.2d 66, 71 (2nd Dist. 1997), aff’d 184 Ill. 2d 521, 705 N.E.2d 48 (1998).
 Note that while in Illinois, the judicial deliberation privilege is absolute (Thomas, supra at 493), in most other jurisdictions, the privilege is a qualified one and, therefore, a litigant can overcome it upon a sufficient showing of need. See: 2 Testimonial Privileges, sec. 9:7 (3rd Ed. Westlaw Database updated May, 2008) and cases cited therein; United States v. Farley, 11 F.3d 1385, 1389 (7th Cir. 1993).
The argument that Administrative Law Judges, because they are acting in a quasi-judicial capacity, should be treated like judges when it comes to application of judicial privileges should find support in Senate Bill 1610 currently pending in Springfield and expected to be passed into law. That bill, should it become law, will amend the Illinois Administrative Procedure Act to create the Office of Administrative Hearings with a Chief Administrative Law Judge, will set out qualifications for Administrative Law Judges and will set out procedures for the conduct of administrative hearings. The bill implicitly recognizes that the role of an Administrative Law Judge is akin to a Judge, when it specifically requires the Chief Administrative Law Judge to, “implement a code of professional conduct…incorporating the provisions of the Rules of Judicial Conduct wherever possible.” (emphasis added).