MOTION FOR RECONSIDERATION OF ORDER REGARDING
THE DELIBERATIVE PROCESS PRIVILEGE DENIED:
March 3, 2022
CBCA 6597
ACTIVE CONSTRUCTION, INC.,
Appellant,
v.
DEPARTMENT OF TRANSPORTATION,
Respondent.
Terry R. Marston II of Marston Legal, PLLC, Kirkland, WA, counsel for Appellant.
Rayann L. Speakman, Office of the Chief Counsel, Federal Highway Administration,
Department of Transportation, Vancouver, WA, counsel for Respondent.
LESTER, Board Judge.
ORDER1
Respondent, the Federal Highway Administration (FHWA), has requested that the
Board reconsider its order dated February 8, 2022, requiring the FHWA to produce to
appellant, Active Construction, Inc. (ACI), certain documents that the FHWA has withheld
1 This order is being published to assist in providing greater transparency to the
public about the manner in which the Board has addressed issues in cases before it. 
Nevertheless, although single-judge orders like this one are binding in the appeals in which
they are issued, they are, consistent with Board Rule 1(d) (48 CFR 6101.1(d) (2020)), not
precedential in other appeals before the Board.

CBCA 6597 2
as protected by the deliberative process privilege.  The FHWA, citing to court decisions
involving the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (2018), asserts that
“reconsideration is necessary because of the Board’s failure to follow binding precedent
regarding the treatment of agency deliberations conducted as part of the contracting
negotiation process.”  Respondent’s Motion for Reconsideration at 2.  The motion is denied.
Discussion
The FHWA’s Misinterpretation of the Board’s Order
The FHWA claims that the Board, in its prior order, was wrong in holding that
internal agency documents created during deliberations to assist in reaching a final decision
on contract administration matters do not fall within the deliberative process privilege.  The
FHWA has misunderstood the Board’s order.
In its order, the Board recognized that the deliberative process privilege “protects
information from disclosure that is ‘predecisional’ (that is, generated before the agency
adopts a policy or reaches a decision) and ‘deliberative’ in nature (that is, prepared to assist
an agency decision-maker in arriving at a decision through the give-and-take of the
collaborative process).”  Active Construction, Inc. v. Department of Transportation, CBCA
6597, slip op. at 3 (Feb. 8, 2022).  That is, “[t]he deliberative process privilege shields
documents that reflect an agency’s preliminary thinking about a problem, as opposed to its
final decision about it.”  United States Fish & Wildlife Service v. Sierra Club, Inc., 141 S.
Ct. 777, 785 (2021).  “Discussions among agency personnel about the relative merits of
various positions which might be adopted in contract negotiations are as much a part of the
deliberative process as the actual recommendations and advice which are agreed upon.” 
Mead Data Central, Inc. v. United States Department of the Air Force, 566 F.2d 242, 257
(D.C. Cir. 1977).  We expressly recognized in our prior order that the deliberative process
privilege could cover deliberations associated with contract negotiation and administration
decisions, Active Construction, slip op. at 6, an understanding that is supported by the two
court decisions that the FHWA cites, Mead Data Central and Brownstein Zeidman &
Schomer v. Department of the Air Force, 781 F. Supp. 31 (D.D.C. 1991).
The Difference Between the FOIA and Production in Discovery
The FHWA urges us to follow the guidance of Mead Data Central and Brownstein
Zeidman, in which the courts allowed the Government to withhold from public release
deliberative documents associated with contract administration decisions.  Yet, there is a
major difference in the two cited court decisions and this case.  Both Mead Data Central and
Brownstein Zeidman addressed requests for the release of documents under the auspices of
the FOIA.  Exemption 5 of the FOIA is the statutory equivalent of the deliberative process

CBCA 6597 3
privilege and entitles the Government, in response to a FOIA request, to withhold
“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.”  Id. § 552(b)(5); see Sierra Club,
141 S. Ct. at 785 (“[T]his exemption incorporates the [deliberative process privilege]
available to Government agencies in litigation.”).  But the case before the Board is not a
FOIA case.  This appeal involves a contract dispute in which appellant seeks the production
of documents as part of the discovery process.
In a FOIA action, the need of the requesting party is not considered in evaluating
whether documents should be released.  Judicial Watch, Inc. v. United States Department of
Homeland Security (Judicial Watch I), 841 F. Supp. 2d 142, 162 (D.D.C. 2012).  If the
documents in question are found to be predecisional and deliberative and if the agency
establishes that it is reasonably foreseeable that disclosure would harm an interest protected
by the deliberative process privilege, a court’s consideration of a challenge to the privileged
nature of the documents ends.  Judicial Watch, Inc. v. Department of Commerce (Judicial
Watch II), 375 F. Supp. 3d 93, 97-98 (D.D.C. 2019).  When the deliberative process privilege
is invoked in response to discovery requests in litigation, FOIA decisions can be helpful in
defining the standards to apply in determining whether an agency has properly established
the deliberative process privilege, see Janice Toran, Information Disclosure in Civil Actions:
The Freedom of Information Act & the Federal Discovery Rules, 49 Geo. Wash. L. Rev. 843,
852 (1981), but there is an additional analytical element that does not exist in FOIA cases.
In a discovery dispute, the deliberative process privilege is not absolute, Marriott
International Resorts, L.P. v. United States, 437 F.3d 1302, 1307 (Fed. Cir. 2006), and “can
be overcome by a sufficient showing of need.”  In re Sealed Case, 121 F.3d 729, 737 (D.C.
Cir. 1997).  Faced with a challenge to the Government’s deliberative process privilege
invocation in litigation, a tribunal must compare and balance the requesting party’s need for
the documents against the harm to the Government that will result from disclosure, a process
that can result in a different production outcome than under the FOIA:
The absence of any consideration of need distinguishes the FOIA request from
the discovery process.  The FOIA quite explicitly makes the need of the party
requesting disclosure irrelevant.  Thus, at least in theory, the FOIA promotes
increased government accountability by allowing any member of the public to
peruse government documents without demonstrating a special interest in the
material.  On the other hand, even the most pressing need for disclosure cannot
overcome an applicable FOIA exemption.  The balancing of needs and
interests found in the discovery context is not present in FOIA litigation.  The
courts have consistently held that a requesting party’s rights under the FOIA
“are neither increased nor decreased by reason of the fact that it claims an

CBCA 6597 4
interest in [requested information] greater than that shared by the average
member of the public.”
. . . .
When the FOIA is asserted in a negative fashion to block discovery, the
information-gathering systems of the FOIA and the Rules must be combined
with great care.  In an action to compel discovery, the requestor’s need for the
information is a crucial factor in the balancing test regardless of whether the
material is exempt under the FOIA.
Toran, supra, at 852, 853-54 (quoting National Labor Relations Board v. Sears, Roebuck &
Co., 421 U.S. 132, 143 n.10 (1975)).
Accordingly, contrary to the FHWA’s suggestion, “FOIA exemptions . . . should not
operate as absolute barriers to discovery nor should they be assigned controlling weight in
discovery rulings.”  Toran, supra, at 871.  “The qualified scope of the privileges available
to the government . . . permit[s] a party, upon a showing of need, to obtain more relevant
documents in discovery than under the FOIA.”  Edward A. Tomlinson, Use of the Freedom
of Information Act for Discovery Purposes, 43 Md. L. Rev. 119, 139 (1984).  That the courts
in Mead Data Central and Brownstein Zeidman allowed the Government to withhold
contract administration deliberation documents under the FOIA, where the contractor’s need
is irrelevant, does not mean that such documents will similarly be exempted from production
in a discovery dispute, where need must be considered.  By requesting that we defer to FOIA
decisions that did not require production of deliberative process documents, the FHWA is
essentially attempting to convert a qualified privilege when raised as part of a discovery
dispute into an absolute one.  The FHWA has identified no viable basis for that request.
The Reasons That the FHWA’s Privilege Claim Failed
In our order dated February 8, 2022, we identified three reasons for finding that the
deliberative process privilege did not support withholding the sampling of documents that
the FHWA had provided to the Board:  (1) that a few of the documents were post-decisional;
(2) that some documents had no discernible tie to a “decision” that the agency was
deliberating; and (3) that, in the context of a contract dispute about the very contract at issue
in the contract administration documents that the FHWA sought to withhold, the privilege
could not stand absent very good reasons that the FHWA had not supplied.  In its motion for
reconsideration, the FHWA challenges our characterization of the documents that we
identified as falling into the first two categories above.  We need not delve into the FHWA’s
disagreement with the first two reasons because, regardless of that outcome, all of the
documents that the FHWA provided to the Board for in camera review would have to be

CBCA 6597 5
produced for the third reason.  The FHWA expresses confusion about our rationale for
requiring production of allegedly deliberative contract administration documents in the
discovery dispute here, which we address below.
The FHWA’s Failure to Establish Reasonably Foreseeable Harm.  The FHWA failed
to meet its obligation of identifying reasonably foreseeable harm that would result from
disclosure of its employees’ contract administration deliberations.
To establish a prima facie case in support of a deliberative process privilege claim,
the Government bears the burden of establishing that each protected document is
predecisional and deliberative, as well as (particularly in light of a 2016 amendment to the
FOIA) that it is reasonably foreseeable that the type of harm that the privilege is intended to
preclude – that is, the suppression of openness in internal agency deliberations – would result
from disclosure.  Judicial Watch II, 375 F. Supp. 3d at 97-98.  To support its privilege claim,
the FHWA provided the declaration of Kevin McLaury, the Division Director for the
FHWA’s Western Federal Lands Highway Division, who averred that “[a]ll of these
documents were related to the negotiations of contract modifications or settlement for the
Contract” at issue in this appeal and that production of these documents “will result in a
chilling effect on agency deliberations.”  Declaration of Kevin L. McLaury (May 5, 2021)
¶¶ 4, 5.  He tells us that, if negotiation memoranda were released, “and agency officials knew
that potential contractors would be able to review them and use them in future negotiations,
they would be less willing to set forth their negotiation goals in writing.”  Id. ¶ 6.  He
provides similar representations with regard to the harm that would result from the public
disclosure of independent government estimates (IGEs), emails between government staff
regarding the negotiation of contract modifications, and emails discussing changes or the
reasoning used in various components of IGEs.  Id. ¶¶ 10, 11.  He even goes so far as to
assert that, if “internal emails regarding funding for contract modifications” were released,
“government personnel would be less likely to request funds reflecting the government
negotiation position prior to entering into negotiations.”  Id. ¶ 9.
Nowhere in the declaration, however, does Mr. McLaury ever explain, for any of the
documents that he seeks to protect, why disclosure would limit future internal agency
deliberations.2  The declaration must do more than “perfunctorily state that disclosure of all
2 We also note that neither Mr. McLaury in his declaration nor the FHWA in its
briefing adequately explains why Mr. McLaury, in his role as Division Director for the
FHWA’s Western Federal Lands Highway Division, is authorized to invoke the deliberative
process privilege upon the agency’s behalf.  The authority to invoke the privilege rests with
the agency head, who “can, when carefully undertaken, delegate authority to invoke the
deliberative process privilege on the Agency’s behalf.”  Marriott International, 437 F.3d at

CBCA 6597 6
the withheld information—regardless of category or substance—would jeopardize the free
exchange of information.”  Rosenberg v. Department of Defense, 342 F. Supp. 3d 62, 79
(D.D.C. 2018).  “While an agency can take a categorical approach, it must provide more than
‘boilerplate statements’ and ‘generic and nebulous articulations of harm.’”  Danik v.
Department of Justice, 463 F. Supp. 3d 1, 10 (D.D.C. 2020) (citations omitted).  It has to
“articulat[e] ‘a link between the specified harm and specific information contained in the
material withheld.’”  Judicial Watch II, 375 F. Supp. 3d at 100 (quoting H.R. Rep. No.
114-391, at 9 (2016)); see Mead Data Central, 566 F.2d at 258 (“An agency cannot meet its
. . . burden of justification by conclusory allegations of possible harm.  It must show by
specific and detailed proof that disclosure would defeat, rather than further, the purposes of
the [privilege].”).
Here, the McLaury declaration’s allegations of harm are conclusory.  Why, if these
documents were released, would Mr. McLaury’s employees stop requesting funding for
contracts?  What fears would they have in future contract negotiations, if these documents
in dispute were produced, that would essentially deter them from protecting the Government
in negotiations?  Given Mr. McLaury’s focus on public disclosure of these documents, why
would a protective order limiting the documents’ disclosure to individuals working on this
case not ameliorate those concerns?  Not only does the declaration provide no insight into
the answers to such questions, the unsupported assertion that the possibility of disclosure
deters openness in contract administration matters directly conflicts with an opposite view
adopted by one of our predecessor boards of contract appeals:
The [contracting officer (CO)] has claimed that disclosure of the information
identified in the Privilege Log as supplemented would have a chilling effect
upon the process whereby the CO’s subordinates provide the CO with
information and recommendations and policy choices.  This contention is
patently specious in the context of contract administration such as this one. 
Obviously, the CO cannot perform his functions without the information and
recommendations which theoretically might be chilled.  Rather, the prospect
of disclosure in litigation, with the concomitant need to defend the efficacy of
1308.  In its response to ACI’s original motion to compel, the FHWA cited to a delegation
order (FHWA M1100.1A, chg. 45, ch. 4, ¶ 49 (Nov. 25, 2005)) as the basis of Mr.
McLaury’s authority to invoke the privilege.  That order, however, seems to provide only
“initial determination” authority for someone in Mr. McLaury’s position to respond to a
FOIA request.  It appears that, if that response is challenged, the Associate Administrator for
Administration is delegated authority to enforce the privilege on appeal.  In further
proceedings, the FHWA will have to justify more thoroughly the basis of Mr. McLaury’s
delegation to support the privilege invocation here.

CBCA 6597 7
the assessments or recommendations, should have the effect of inspiring
greater accuracy and thoroughness in providing the essential information and
recommendations.  Any omissions as well as commissions would so reflect
upon the quality of the subordinates’ performance that performance quality
should logically be enhanced, not impaired, by anticipation of disclosure.  Nor
is the nature of the process involved in routine contract administration such
that the prospect of disclosure might stimulate grandstanding or intimidate
subordinates from playing the role of devil’s advocate, for example, which
might be significant concerns if high level policy formulation were involved. 
It may be taken as given that agency policies are developed by senior level
officials, and that, in contrast, discussions between lower level contract
administrators regarding routine contract operations would not, ordinarily, in
the absence of a specific showing to the contrary, pertain to the formulation of
agency policy which would need to be protected by invocation of the
deliberative process privilege.
Brero Construction, Inc., LBCA 1997-BCA-4, 1999 WL 624138 (June 18, 1999).
In conducting our in camera review of the sampling of withheld documents that the
FHWA submitted to the Board, we could not identify anything in them that would cause
individuals concern.  In these circumstances, the FHWA did not meet its burden to establish
the applicability of the deliberative process privilege over the sampling of documents that
were submitted for in camera review.
The Contractor’s Need Versus the Agency’s Harm.  Even if the FHWA’s submissions
were viewed as minimally sufficient to meet its obligation to establish harm, it is quite clear
that the contractor’s need to discover evidence to support its lawsuit overwhelms that
minimal harm.  As we explained in our prior order, “only in unusual situations will an agency
be able to preclude production of documents relating to contract administration decisions,
particularly those relating to decisions about contract changes and modifications, under the
guise of the deliberative process privilege in response to a contract action seeking damages
for those same contract administration activities, changes, and modifications.”  Active
Construction, slip op. at 5 (citing 4K Global-ACC Joint Venture v. Department of Labor,
CBCA 6683, et al., slip op. at 12-13 (Feb. 10, 2021), and Ingalls Shipbuilding Division,
Litton Systems, Inc., ASBCA 17717, 73-2 BCA ¶ 10,205); see Xerox Corp. v. Government
Printing Office, GSBCA 12322-P, 93-3 BCA ¶ 25,936 (finding that an agency “should not
be permitted to shield its relevant actions” about the dispute before the Board “by claiming
the privilege”).  It appears that the FHWA believes that, at the same time that it obtains
discovery of the minutiae of the contractor’s contract performance and administration
activities, it can selectively limit production of its own contract administration documents. 
Such a position in the context of a contract dispute “smacks of a search for tactical advantage

CBCA 6597 8
in a sporting contest rather than a search for truth.”  Charlesgate Construction Co., LBCA
96-BCA-2, et al., 1997 WL 159854 (Mar. 7, 1997).  Having failed to identify good reasons
that convincingly indicate reasonably foreseeable harm from disclosure, the agency cannot
prevail in the required balancing test.
In its motion for reconsideration, the FHWA argues (for the first time) that, even
though it invoked the deliberative process privilege over more than 1100 documents covering
forty executed contract modifications, only eleven of those forty modifications are the
subject of the current appeal.  Accordingly, it asks us to limit its production obligation to
those modifications that remain in dispute.  The FHWA did not identify this issue in its prior
briefing on its privilege claims.  For the documents that the Board has already reviewed in
camera and ordered be produced, it is too late to raise new grounds for withholding. 
Decision
The FHWA shall produce the documents identified in the Board’s order dated
February 8, 2022, within ten calendar days from the date of this order.  If it wishes to
produce such documents under a protective order to limit their public distribution, it will
need to confer with ACI and submit a proposed protective order to the Board.
The FHWA and ACI shall confer to determine whether they can resolve their dispute
as to the remaining documents identified in the FHWA’s privilege log as subject to the
deliberative process privilege and report to the Board within ten calendar days from the date
of this order on the extent to which further proceedings relating to ACI’s motion to compel
will be necessary.  Any questions about relevance shall be addressed as part of the parties’
negotiations.
    Harold D. Lester, Jr.      
HAROLD D. LESTER, JR.
Board Judge