United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 16, 1998 Decided April 14, 1998
No. 97-3094
John W. Hinckley, Jr.,
Appellant
v.
United States of America,
Appellee
Appeal from the United States District Court
for the District of Columbia
(No. 81cr00306-01)
Barry Wm. Levine argued the cause for appellant, with
whom John T. Kotelly, Adam Proujansky and Sarah M.
Mortenson were on the briefs.
Helen M. Bollwerk, Assistant United States Attorney, ar-
gued the cause for appellee, with whom Wilma A. Lewis,
United States Attorney, John R. Fisher, Thomas J. Tourish,
Jr., Robert R. Chapman, and Thomas E. Zeno, Assistant
United States Attorneys, were on the brief.
John M. Ferren, Corporation Counsel, Charles Reischel
and Janet L. Maher, Deputy Corporation Counsel, and Mau-
reen W. Zaniel, Assistant Corporation Counsel, were on the
brief for amicus curiae District of Columbia.
Before: Wald, Silberman and Henderson, Circuit Judges.
Opinion for the Court filed by Circuit Judge Wald.
Opinion concurring in the judgment filed by Circuit Judge
Henderson.
Wald, Circuit Judge: John W. Hinckley, Jr., an insanity
acquittee presently committed to St. Elizabeths Hospital in
Washington, D.C. ("Hospital"), filed a motion with the United
States District Court seeking a conditional release under D.C.
Code Ann. s 24-301(k) (1981). This release would have per-
mitted him to spend approximately one twelve-hour period
per month in the community, with his parents but otherwise
unsupervised. The Hospital did not support Hinckley's mo-
tion, and had already denied a similar request from him. The
United States also opposed the motion. See United States v.
Hinckley, 967 F. Supp. 557, 558-59 (D.D.C. 1997). After a
four-day evidentiary hearing, the district court, Judge June
L. Green, found that Hinckley continues to present a danger
to himself or others. It accordingly denied his motion for
conditional release. See id. at 558.
In the present appeal, Hinckley argues that the district
court's order should be vacated because, in a pre-hearing
evidentiary ruling, the district court held that the deliberative
process privilege shielded the discussion that took place be-
tween members of the Hospital's Review Board as they
considered whether to support Hinckley's conditional release.
Hinckley claims that this ruling prevented him from testing
the propriety of the Review Board's ultimate decision (made
before the present case began) to deny Hinckley a conditional
release. We reject this argument and affirm the district
court's opinion.
I. Background
Hinckley attempted to assassinate then-President Ronald
Reagan on March 30, 1981. In the process, he shot and
wounded four people: Reagan, Presidential Press Secretary
James Brady, Secret Service Agent Timothy McCarthy, and
Metropolitan Police Officer Thomas Delahanty. At his crimi-
nal trial, Hinckley presented evidence that he was suffering
from a mental disease and that his criminal actions were the
result of that disease. On June 21, 1982, the jury found
Hinckley not guilty by reason of insanity. The district court
then committed Hinckley to St. Elizabeths Hospital, where he
has remained to this day. See id.
During the course of his commitment, Hinckley has sought
various forms of release from the U.S. District Court. All of
these requests were either denied or withdrawn. In addition,
in 1987 and 1988, the Hospital asked the district court to
release Hinckley into the community under the supervision of
Hospital staff, but subsequently withdrew those requests.
See id.
The district court held a four-day hearing on Hinckley's
present motion for conditional release. Hinckley presented
five witnesses: two psychologists, two psychiatrists, and
Hinckley's father. See id. Hinckley's four experts all testi-
fied that Hinckley suffers from a psychotic disorder and
major depression, both of which are in remission, and from
narcissistic personality disorder, which is active. They also
testified that Hinckley would present a very low risk of
danger to himself or others if the district court granted his
request for conditional release. They further agreed that, if
Hinckley had a recurrence of his prior active mental illnesses,
any symptoms would develop slowly enough that they would
be detectable before an unescorted visit. See id. at 559.
The United States presented one fact witness, Commander
Jeanette Wick, and one expert psychiatrist, Dr. Raymond
F. Patterson. See id. at 558. Wick, who is Chief Pharmacist
at the Hospital, testified about her interactions with Hinckley.
She stated that she first met Hinckley when she offered to
lend him a book in late February or early March 1995. Wick
testified that Hinckley then began making fairly frequent,
and always unannounced, visits to her office. Over the course
of these visits, Hinckley gave Wick audio tapes of music he
had recorded, including one " 'love song' " that contained
Wick's pet name for her daughter. Wick also discovered that
Hinckley had been gathering information about her personal
schedule with her daughter. Id. at 559.
This continued for about three weeks, until Wick's staff
members told her that they believed she was spending too
much time with Hinckley. Wick testified that she then
informed Hinckley that he could not come to her office
without calling first. Hinckley nonetheless continued to make
unannounced visits, and Wick had to repeat her instruction.
At that point, the Hospital pharmacy began to receive a high
volume of hang up calls. When Wick answered the phone,
Hinckley would identify himself as the caller. Wick testified
that she reported these problems to Dr. Maureen Christian,
Hinckley's therapist, and then began to avoid Hinckley com-
pletely. See id. at 559-60.
According to Wick's testimony, however, she had to file an
incident report with the Hospital in September 1995 because
Hinckley had disobeyed instructions by delivering a package
to her. After the Hospital investigated, it imposed three
restrictions on Hinckley: (1) Hinckley was prohibited from
being in the general vicinity of the building in which Wick
worked; (2) Hinckley could have no social relationship with
Wick; and (3) whenever Hinckley planned to walk around the
Hospital grounds, he had to tell a member of his treatment
team what he was going to do and where he was going to be.
See id. at 560.
Wick further testified that she now sees Hinckley on the
third Monday of each month, when she attends a meeting in
the Acute Care Hospital building. Wick stated that Hinckley
is frequently standing in the lobby when she arrives, and
described one such encounter that took place in March 1996:
" '[Hinckley] glares at me. He stares at me. I guess the
kids would say, he stares me down.... I went to the
elevator, and as I went to the elevator, [Hinckley] re-situated
himself so he could keep me in his line of vision apparently.' "
Id.
The district court credited Wick's testimony, and found
that Hinckley had offered no evidence to rebut it. See id.
The government's expert witness, Dr. Patterson, also testi-
fied. Patterson agreed with Hinckley's experts that Hinck-
ley's psychotic disorder and major depression are in remis-
sion. However, he did not agree that Hinckley would not be
dangerous to himself or others if allowed to have unaccompa-
nied visits in the community with his parents. See id. Here,
Patterson cited a number of factors. Patterson explained:
"The last time Mr. Hinckley was in the Community,
unattended or unsupervised, the risk of dangerousness
was extremely high. That was 16 years ago. Therefore,
you have to consider past history and what factors went
into his having committed that offense, and his subse-
quent improvement as observed by hospital staff and as
reported by himself and by others, and the psychological
testing that demonstrates some improvements in some
areas and some concerns that some very core personality
issues remain unchanged."
Id. Patterson also based his opinion on Hinckley's "relation-
ship" with Wick, stating that it bore some " 'striking similari-
ties to the 'relationship' ... that he had with Ms. [Jodie]
Foster' " and raised questions about whether Hinckley was
obsessively infatuated with Wick. Id. at 560-61. The doctor
stated that Hinckley's behavior toward Wick was significant
because of Hinckley's history of stalking people, including
President Carter, President Reagan, and Jodie Foster. Pat-
terson described this past stalking as ultimately leading to
Hinckley's assassination attempt on Reagan. See id. at 561.
But, in the district court's judgment, Patterson's descrip-
tion of Hinckley's past and continued propensity for deception
and secretiveness, especially with respect to those responsible
for treating him, was the most important factor that the
doctor cited. Patterson observed that Hinckley's treatment
team did not know about his "relationship" with Wick until
nearly six months after the two had met. Patterson believed
that this was consistent with Hinckley's history, including the
failure of several mental health professionals who were treat-
ing Hinckley prior to his assassination attempt to detect
Hinckley's psychosis and the failure of the Hospital on several
occasions during Hinckley's commitment to detect behavior
that represented continuing symptoms of his mental illness.
See id. As Patterson elaborated:
"There have been in the Mid-'80's, let's say in '83 to '88, a
number of situations where Mr. Hinckley has not told
people that are his treaters what he's actually thinking or
doing. They relate to collecting pictures of Jodie Foster.
They relate to requesting a nude caricature of Jodie
Foster. Even up into the day before a hearing on the
matter, Mr. Hinckley stat[ed] that it had no sexual
content, was not nude.
They relate to his writing Ted Bundy, his writings
about Adolf Hitler, Charles Manson. And none of his
treaters knew that from Mr. Hinckley telling them until
he was confronted with it by third parties revealing that
information to Hospital staff."
Id.
Based on this evidence, the district court made the follow-
ing findings of fact: (1) "Petitioner's current diagnosis is
psychotic disorder not otherwise specified, in remission; ma-
jor depression, in remission; and, narcissistic personality
disorder"; (2) "Petitioner has a history of deception and a
record of screening information he is otherwise obligated to
provide to treating and examining clinicians"; (3) "[a]s re-
cently as March 1995-March 1996, Petitioner has engaged in
conduct with the Chief Pharmacist at the Hospital, Jeanette
Wick, that has disturbing parallels to the conduct leading up
to the shooting of President Reagan including the stalking of
President Carter and Jodie Foster"; and (4) "[t]he psycholog-
ical testing results indicate that Petitioner has made progress
but continues to be 'very defensive and represses a lot of his
feelings.' " Id. at 561-62. The court therefore concluded
that Hinckley would present a danger to himself or others if
granted a conditional release. See id. at 558.
II. Analysis
When Hinckley's motion for conditional release was before
the district court, his arguments relating to the Hospital
Review Board focused on the assertion that all evidence of
the Review Board's decisionmaking and opinions should be
inadmissible, because the Hospital had asserted that the
Review Board's deliberations were privileged. With consid-
erably less emphasis, Hinckley also contended that the deli-
berative process privilege did not apply to the Review Board's
deliberations at all.1 The district court disagreed on both
counts. It found that the deliberative process privilege did
protect the Review Board from having to disclose the sub-
stance of its deliberations. The district court also rejected
Hinckley's argument that all Hospital Review Board evidence
should accordingly be excluded, explaining:
[T]he Review Board's decision should not be excluded
simply because the privilege has been invoked. As dis-
__________
1 We reject the United States' argument that because Hinckley
did not expressly raise the deliberative process challenge in the
district court this court should apply a plain error standard in
considering whether the privilege protects the Hospital Review
Board's internal deliberations. Although Hinckley's motions before
the district court certainly concentrated on the contention that all
evidence relating to the Review Board should be inadmissible,
Hinckley clearly, if briefly, stated the essence of his present claim.
See Joint Appendix ("J.A.") at 157-58 ("Mr. Hinckley disputes the
application of those privileges [the deliberative process privilege
and the peer review privilege] in this context. Mr. Hinckley
believes the deliberative process privilege applies only to policy-
making, which was not at issue when the Review Board deliberated
on Mr. Hinckley's request ...."); id. at 222 ("[T]he deliberative
process privilege is what Congress does, it's what boards do when
they are formulating policy. And of course that has nothing to do
here either. So we believe the citation to those privileges and the
invocation of those privileges is spurious. So we object on the
grounds that there is no such privilege.").
cussed in United States v. Ecker, supra, the District
Court has a responsibility to consider all relevant evi-
dence. As the Ecker court stated, "[T]hese are truly
investigatory proceedings in which traditional notions of
proof are simply inapplicable. The district court, the
hospital, the patient, and the government share an obli-
gation to elucidate and explore all the relevant facts."
Id. at 193. Accordingly, the Court will not exclude the
Review Board decision from the evidentiary hearing. In
so ruling, the Court notes that all of the information and
records available to the Review Board are also available
to the parties here. If, in fact, the Government attempts
to introduce the actual decision into evidence, the Court
will give it such weight as it deserves.
J.A. at 164-65.
Ultimately, however, the district court's opinion mentioned
the Hospital Review Board's decision to deny Hinckley a
conditional release only twice. The second mention is clearly
irrelevant to the present appeal. It concerned Hinckley's
attempt to have the district court vacate an order requiring
the Hospital to give two weeks of advance notice to the
district court and the United States Attorney's Office before
taking Hinckley on supervised excursions into the community.
The district court denied this request on the ground, inter
alia, that it was moot because "the Hospital has not extended
'B-City' privileges to the Petitioner," which would allow him
to make supervised excursions into the community, "so the
notice requirement is not even an issue at this stage."
Hinckley, 967 F. Supp. at 563.
The first mention of the Hospital Review Board's decision
appears in the district court opinion's discussion of the "stan-
dard of review." To be understood properly, this discussion
must be read in full:
As a motion for conditional release made pursuant to
D.C. Code s 24-301(k), the Court is required to make
findings of fact and conclusions of law with regard to
whether the proposed release will benefit the patient and
be safe for the public. United States v. Ecker, II, 543
F.2d 178, 191 (D.C. Cir. 1976). In order for the Petition-
er to be successful, the Court must, after weighing all of
the evidence, find (by a preponderance of the evidence)
that the Petitioner "will not, in the reasonable future,
endanger himself or others." Id. at 187. The Court in
Ecker II noted that it is not "sufficient for the district
court merely to find that the patient 'is no longer likely
to injure himself or other persons because of mental
illness.' " Id. The Court must make an "affirmative
finding that it is at least more probable than not that
[Petitioner] will not be violently dangerous in the future."
Id.
In receiving and weighing the evidence, the Court is
not bound to accept the opinion of any expert witness but
is free to consider other evidence including "the patient's
hospital file, the court files and records in the case, and
whatever illumination is provided by counsel." Id. at
184-185.
In examining the evidence here, the Court notes that
the request for conditional release has not come from the
Hospital, but from the Petitioner and that the Hospital
has, in fact, denied a similar request made by the Peti-
tioner. Such a posture makes an exacting review of the
evidence that much more important.
Id. at 559. The district court's opinion proceeded to offer a
thorough description and analysis of the expert testimony and
evidence that was before it. The district court never men-
tioned the Review Board's decision in this discussion.
Hinckley argues that this court should vacate the district
court's order because the lower court improperly shielded the
Review Board's deliberations under the deliberative process
privilege. In our view, however, there are no grounds for
vacating the district court's opinion, even if the court's ruling
on the deliberative process privilege was mistaken--which we
do not believe to be the case. The most plausible reading of
the district court's opinion is that its review of the evidence
did not rely on the Review Board's decision denying Hinckley
a conditional release, much less on the Review Board's prede-
cisional deliberations.
The most plausible reading of the recited passage is that it
means exactly what it says. The fact that the Hospital did
not support Hinckley's conditional release did affect the dis-
trict court's standard of review. Under the relevant District
of Columbia statute, it meant that Hinckley bore the burden
of proof by a preponderance of the evidence, see D.C. Code
Ann. s 24-301(k)(3) (1981), whereas he would not have borne
that burden if the Hospital had supported his conditional
release and gone to the district court on his behalf, see id.
s 24-301(e). But after the district court established the
burden of proof, there is no indication that the district court
actually relied on the fact that the Hospital Review Board had
denied Hinckley a conditional release when the court was
independently evaluating the evidence in order to decide
whether it should release Hinckley. Indeed, the district
court's sole comment relating to that subject, which appears
in the last two sentences of the passage quoted above, states
only that the court undertook its de novo review extremely
carefully in light of the Hospital's denial of a conditional
release, a perfectly appropriate posture. Moreover, it is
clearer still that the district court did not rely on the sub-
stance of the Review Board's internal deliberations in coming
to its decision, precisely because the district court had no
knowledge of the content of those deliberations.
This, however, is not our only ground for affirming the
district court's opinion. We also find that, even if the district
court did rely on the Hospital Review Board's denial of a
conditional release when the court was conducting its review
of the evidence, the district court properly held that the
deliberative process privilege protects the internal delibera-
tions of the Review Board. Here, it is important to stress the
extraordinary nature of Hinckley's discovery request and the
consequently limited scope of our holding. Hinckley had
access to every piece of evidence that was before the Hospital
Review Board and to a written statement explaining the
Review Board's ultimate decision to deny him a conditional
release. The only part of the Hospital's entire process that
the district court protected under the deliberative process
privilege was the discussion that took place between members
of the Hospital Review Board as they reviewed the evidence
amongst themselves and came to their final decision. We
break no new ground with regard to the scope of the deliber-
ative process privilege in rejecting Hinckley's discovery re-
quest and affirming the district court's holding that the
predecisional deliberations of the Hospital Review Board are
protected under the deliberative process privilege.
A review of the steps that the Hospital followed in consid-
ering Hinckley's conditional release, and of the access that
Hinckley had to this information, makes that clear. Hinck-
ley's "treatment team" at the Hospital consists of a group of
mental health professionals who are directly responsible for
Hinckley's treatment and who make recommendations that
they believe will advance his therapy. Hinckley had full
access to the medical records that recount his treatment at
the Hospital. In June 1996, Hinckley's treatment team rec-
ommended that the Hospital grant him a conditional release,
which would allow him to spend one twelve-hour period per
month in the community, with his parents but otherwise
unsupervised. The treatment team also recommended that
Hinckley receive "B-City" privileges, which would permit him
to take excursions into the community under the supervision
of Hospital staff. See J.A. at 87. The treatment team
prepared a written report that made this recommendation
and explained the psychological assessment behind it. Hinck-
ley had access to this report, which appears in full in the joint
appendix. See id. at 78-94.
Under Hospital procedure, the Hospital Review Board,
which consists of every section head at the Hospital, has the
ultimate responsibility for deciding on behalf of the Hospital
whether to support a conditional release. The treatment
team accordingly presented its written report to the Hospital
Review Board. It also made an oral presentation to the
Review Board and answered questions from Review Board
members. The Hospital never asserted that any privilege
covered this presentation, or the questions and answers that
followed. In fact, Hinckley called Dr. John Kelley, a Hospital
psychiatrist who was part of Hinckley's treatment team and
who had made an oral presentation to the Review Board
about Hinckley's conditional release, to testify before the
district court. Kelley testified about who attended the meet-
ing between the Review Board and the treatment team and
what various people said, whether in making presentations,
responding to questions, or asking questions.
After this meeting between the treatment team and the
Review Board, the presenters and anyone who was directly
responsible for Hinckley's therapy left the room. The Re-
view Board deliberated on its own. The Hospital asserted a
deliberative process privilege, and the district court recog-
nized one, only with respect to these deliberations. See Brief
of the District of Columbia as Amicus Curiae at 4 ("The
District [of Columbia] is asserting that only the confidential
discussion of the Review Board, that occurs after the treat-
ment team finishes its presentation and after the Review
Board examines the record and questions the team, is privi-
leged."); Final Brief for Appellee at 36 ("[T]he only informa-
tion withheld from [Hinckley] by the Hospital was the sub-
stance of the Review Board's deliberations as its members
debated the appropriateness of the treatment team's recom-
mendations.").2 Once the Review Board came to a conclusion,
it made a note in Hinckley's medical chart recording its
decision and the reasons for its denial of a conditional release.
Hinckley had access to this note, and it is included in the joint
appendix. See J.A. at 215-16.
__________
2 At oral argument, the United States again confirmed the very
limited scope of the Hospital's assertion of privilege. The argument
proceeded as follows:
Q. What kind of material, I'm just sort of asking.... What
kind of material, generically, what kind of material didn't he
[Hinckley] get?
A. The only thing that he did not have access to was the
mental process of the Review Board members as they debated
the appropriateness of the conditional release.
Q. But no documents, no no no documents were withheld by
the Hospital [and] are not part of the record. But their
discussion, back and forth, is [withheld].
A. That is correct, your Honor. That is our position.
We find that the deliberative process privilege protects the
deliberations of the Review Board as it evaluated the evi-
dence before it in order to come to a decision about Hinck-
ley's conditional release.
This court has identified two prerequisites to the assertion
of the deliberative process privilege: In deciding whether
material is protected under this privilege, we consider wheth-
er the material is "predecisional" and whether it is "delibera-
tive." See, e.g., American Federation of Government Em-
ployees, Local 2782 v. U.S. Dep't of Commerce, 907 F.2d 203,
207 (D.C. Cir. 1990); Formaldehyde Institute v. Dep't of
Health and Human Services, 889 F.2d 1118, 1121 (D.C. Cir.
1989); Senate of the Commonwealth of Puerto Rico v. U.S.
Dep't of Justice, 823 F.2d 574, 585 (D.C. Cir. 1987); Coastal
States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C.
Cir. 1980).
"A document [or information in another form] is 'predeci-
sional' if it precedes, in temporal sequence, the 'decision' to
which it relates. Accordingly, to approve exemption of a
document as predecisional, a court must be able to pinpoint
an agency decision or policy to which the document contribut-
ed." Senate of the Commonwealth of Puerto Rico, 823 F.2d
at 585 (citation and internal quotation marks omitted); see
also Formaldehyde Institute, 889 F.2d at 1122. In this case,
it is undisputed that the information Hinckley seeks concerns
the discussions that the Hospital Review Board had prior to
its decision on Hinckley's conditional release. These discus-
sions, moreover, were precisely designed to help the Review
Board reach its final conclusion on Hinckley's conditional
release. Accordingly, we find that the Review Board's delib-
erations are predecisional.
Communications are "deliberative" if they are "part of the
agency give-and-take by which the decision itself is made.
The agency must establish what deliberative process is in-
volved, and the role played by the documents in issue in the
course of that process." Senate of the Commonwealth of
Puerto Rico, 823 F.2d at 585-86 (citations, internal quotation
marks, and alterations omitted). Hinckley does not dispute
the fact that the information he seeks concerns the delibera-
tions of the Hospital Review Board as it arrived at its
decision about Hinckley's conditional release. However, he
contends that the deliberations of the Hospital Review Board
are nonetheless not "deliberative" within the meaning of the
deliberative process privilege because the Review Board's
decision about whether to grant Hinckley a conditional re-
lease allegedly constituted nothing more than "the routine
application of already-formulated Hospital policy." Brief for
John W. Hinckley, Jr. at 12. Hinckley is surely right in that
the Hospital does not claim to have adopted new general
policies to govern Hinckley's case; the Hospital claims only to
have applied its standard decisionmaking procedures in re-
viewing the possibility of supporting Hinckley's conditional
release. Nevertheless, we find Hinckley's argument unper-
suasive.
First, this court has applied the deliberative process privi-
lege to protect materials that concern individualized decision-
making, rather than the development of generally applicable
policy. Mapother v. Dept. of Justice, 3 F.3d 1533 (D.C. Cir.
1993), for instance, involved the "Waldheim Report," which
Justice Department experts had prepared in order to help the
Attorney General decide whether to bar Kurt Waldheim from
entering the United States because of evidence that he may
have participated in Nazi war crimes. See id. at 1535. The
Justice Department did not develop new policies of exclusion
in the course of deciding Waldheim's case; rather, it applied
the existing law governing the exclusion of Nazi war crimi-
nals. See id. Moreover, substantial portions of the Wal-
dheim Report consisted simply of factual material culled from
historical archives. See id. at 1538. Nonetheless, this court
protected almost all of the report under the deliberative
process privilege. See id. at 1537-40.
Second, the Review Board's decision about Hinckley's con-
ditional release cannot be appropriately characterized as
"routine." To be sure, the Review Board was determining in
Hinckley's case, as in all such cases, the likelihood that the
patient would pose a danger to himself or others if condition-
ally released into the community. But any such determina-
tion has to revolve around the facts and circumstances in each
instance. It necessarily involves the exercise of predictive
judgment, based on case-specific discussion and debate.
Moreover, it is easy to see how different Review Board
members could disagree in their interpretation and analysis
of the relevant information and in their final judgment. In
sum, knowing the standards by which the Hospital judges the
appropriateness of a conditional release tells us relatively
little about whether any particular patient should actually be
granted such a release. The Hospital Review Board's deci-
sion denying Hinckley a conditional release was not a "rou-
tine" one.
Moreover, the foundational policy concern underlying the
deliberative process privilege supports the privilege's applica-
tion in this case. "[T]he privilege rests most fundamentally
on the belief that were agencies forced to operate in a
fishbowl, ... the frank exchange of ideas and opinions would
cease and the quality of administrative decisions would conse-
quently suffer." First Eastern Corp. v. Mainwaring, 21 F.3d
465, 468 (D.C. Cir. 1994) (citation and internal quotation
marks omitted); see also Mapother, 3 F.3d at 1537 ("[T]he
deliberative process privilege ... protects the decisionmaking
processes of government agencies and encourages the frank
discussion of legal and policy issues by ensuring that agencies
are not forced to operate in a fishbowl.") (citation, internal
quotation marks, and alterations omitted). The Hospital
Review Board's deliberations as it considered whether to
grant Hinckley a conditional release constitute precisely the
sort of situation in which governmental decisionmakers need
to know that their internal discussions will not be eventually
exposed to public review. As this court has long recognized,
insanity acquittees are an "exceptionally dangerous class."
United States v. Ecker, 543 F.2d 178, 186 (D.C. Cir. 1976).
Deliberations about whether to allow them back into the
community may accordingly attract substantial public interest
and perhaps become the center of public controversy. More-
over, Review Board members might potentially be concerned
for their personal safety in some instances, if the content of
their internal deliberations were released to the insanity
acquittee. The possibility of this sort of outside scrutiny of
the Review Board's deliberations would almost certainly ham-
per the candor of future discussions, and perhaps even
change the decisions that the Review Board reaches. In
addition, Review Board members might be unwilling to criti-
cize the proposals or assessments of other Hospital profes-
sionals not included in the deliberations, such as the members
of the treatment team, if they knew that the Review Board's
discussions could be made public.
As Hinckley notes, "[t]he deliberative process privilege is a
qualified privilege and can be overcome by a sufficient show-
ing of need." In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir.
1997). "For example, where there is reason to believe the
documents sought may shed light on government misconduct,
the privilege is routinely denied, on the grounds that shield-
ing internal government deliberations in this context does not
serve the public's interest in honest, effective government."
Id. at 738 (citation and internal quotation marks omitted); see
also In re Subpoena Served Upon the Comptroller of the
Currency, 967 F.2d 630, 634 (D.C. Cir. 1992). Hinckley
asserts that his attempt to access the deliberations of the
Hospital Review Board falls within this exception to the
deliberative process privilege, on the ground that he suspects
that the Hospital Review Board had improper motivations
when it denied him a conditional release. Hinckley contends
that whatever showing he needs to make in this regard is
satisfied by the mere fact that his treatment team unanimous-
ly recommended his conditional release.
We disagree on several grounds. First, this sort of argu-
ment appears to have no logical stopping point. The deliber-
ative process privilege would soon be meaningless, if all
someone seeking information otherwise protected under the
privilege had to establish is that there was disagreement
within the governmental entity at some point in the decision-
making process. One of the key insights behind this privilege
is that governmental decisionmakers will frequently disagree
and debate many options before they reach any final conclu-
sion, and that such predecisional and deliberative discussions
and disputes should be protected from public review. Sec-
ond, the simple fact that Hinckley's treatment team and the
Hospital's Review Board came to different conclusions does
not suggest, in our view, any improper motivations on the
part of the Review Board. As indicated above, Hinckley's
treatment team and the Review Board have different func-
tions and concerns. Whereas members of the treatment
team are directly responsible for Hinckley's therapy and are
charged with advocating the treatment program that they
believe will best advance Hinckley's therapy, the Hospital
Review Board is drawn from all sections of the Hospital and
considers a wider array of issues, including most notably the
danger that a conditional release would pose to the communi-
ty.
Hinckley also contends that the district court improperly
invoked the deliberative process privilege because it failed to
balance the government's interest in nondisclosure against
Hinckley's need to obtain the Review Board's deliberations
as evidence to support his motion for conditional release. As
this court recently noted, adjudicating such an assertion of
need requires a "balancing of the competing interests, taking
into account factors such as the relevance of the evidence,
the availability of other evidence, the seriousness of the
litigation, the role of the government, and the possibility of
future timidity by government employees." In re Sealed
Case, 121 F.3d at 737-38 (citation and internal quotation
marks omitted). In this case, the balance weighs strongly
against granting Hinckley access to the Review Board's in-
ternal deliberations, notwithstanding the seriousness of the
present litigation. First and most importantly, we see no
reason to believe that these internal deliberations are partic-
ularly relevant to Hinckley's motion before the district court
for conditional release. Hinckley has made no colorable
showing that the Review Board acted improperly. More-
over, the district court conducted a de novo review of the
evidence, rather than simply reviewing the Review Board's
denial of Hinckley's request for conditional release. Second,
the Hospital has already given Hinckley access to a tremen-
dous amount of information, including all of the evidence that
was before the Review Board as well as the Review Board's
final decision and explanation for it. Third, Hinckley has not
even suggested that the United States has acted to thwart
his motion before the district court in an improper or unto-
ward manner. Fourth, granting Hinckley access to the Re-
view Board's internal deliberations would seriously endanger
the future candor of such discussions.
III. Conclusion
The most plausible interpretation of the district court's
opinion in this case is that its de novo review of the evidence
did not rely on the Hospital Review Board's decision to refuse
Hinckley a conditional release. Even if the district court did
rely to some extent on the Review Board's decision, however,
we find that the court properly protected the deliberations of
the Review Board under the deliberative process privilege.
The decision of the district court is accordingly
Affirmed.
Karen LeCraft Henderson, Circuit Judge, concurring in the
judgment:
I agree with the majority that "there is no indication that
the district court actually relied on the fact that the Hospital
Review Board had denied Hinckley a conditional release" and
that "it is clearer still that the district court did not rely on
the substance of the Review Board's internal deliberations in
coming to its decision, precisely because the district court had
no knowledge of the content of those deliberations." Maj.
Op. at 10 (emphasis original). In United States v. Ecker, 543
F.2d 178 (D.C. Cir. 1976), this Court emphasized the district
court's expanded role in resolving a conditional release peti-
tion pursuant to D.C. Code s 24-301:
Thus, in conditional release proceedings (as well as
unconditional release proceedings) the role of the district
court (i.e., the standard of review)
... is not simply to review the hospital's decision for
unreasonableness, but rather itself to decide the
ultimate question: whether the present status of the
patient is such that continued confinement [without
conditional release] is justifiable.
... In order to approve a conditional release, we hold
that the district court must independently weigh the
evidence and make a de novo determination that the
patient will not in the reasonable future endanger himself
or others.
Id. at 186-87 (internal footnote and quotations omitted) (em-
phasis and brackets original). This is so because, as the
Ecker court recognized, "when a district court is asked to
review a conditional release certification the basic policy
underlying section 301(e) comes into play, and the court must
decide whether the hospital's proposal 'provide[s] treatment
and cure for the individual in [sic] manner which affords
reasonable assurance for the public safety.' " Id. at 182-83
(internal footnote omitted) (brackets original). The record
reveals that the district court followed Ecker to the letter,
"independently weigh[ing] and evaluat[ing] the evidence."
Id. at 184. The district court relied heavily upon the opinion
of the government's psychiatrist, Dr. Raymond F. Patterson,
who described Hinckley's "past and continued propensity for
deception and secretiveness, especially to those responsible
for treating him." United States v. Hinckley, 967 F. Supp.
557, 560 (D.D.C. 1997). And in evaluating the opinions of
Hinckley's experts, the district court looked to Hinckley's own
words:
Moreover, in considering the opinions of his experts,
the Court is reminded of a journal entry made by Mr.
Hinckley in 1987 in which he wrote:
I dare say that not one psychiatrist who has ana-
lyzed me knows any more about me than the average
person on the street who has read about me in the
newspapers. Psychiatry is a guessing game and I do
my best to keep the fools guessing about me. They
will never know the true John Hinckley. Only I fully
understand myself.
Tr. 156-157; (stipulated to by counsel for Petitioner).
What is particularly disturbing is that this statement was
written at a time when the Petitioner had already under-
gone five years of treatment and had convinced his
treatment clinicians that he had recovered sufficiently for
conditional release. Statements such as these cause the
Court to proceed carefully in weighing current assess-
ments of the Petitioner by his experts.
Id. at 562. As the majority observes, the district court
"never mentioned the Review Board's decision in this discus-
sion." Maj. Op. at 9. The record plainly manifests that the
district court did not rely on the Hospital Review Board's
recommendation (indeed, the court did not deem it relevant
except insofar as it caused the court to conduct an even more
"exacting" review, 967 F. Supp. at 559). Accordingly, there is
no need to reach the extraneous deliberative process privilege
claim and I respectfully decline to join the majority's discus-
sion of it.