Evidentiary Privileges Against the Production of Data within the Control of Executive Departments

In the conduct of their affairs the various executive departments and administrative agencies acquire much information--reports, documents, records of all kinds, and other data--which may be useful to litigants in civil and criminal actions. The public interest in a full and fair hearing of all disputes between individuals and between individuals and the state calls for the production and disclosure of all evidence relevant to the issues in dispute. This public interest calls for the production and disclosure of relevant evidence within the control of executive departments and administrative agencies. The evidence sought, however, may be of such a nature that its production and disclosure would be inimical to other public interests. When it is determined that the latter interests should prevail, the evidence is said to be privileged. The courts, the legislatures and the executive departments and administrative agencies have sometimes found that the public interests opposed to disclosure should prevail where certain types of evidence within the control of executive departments or administrative agencies has been sought. No acceptable term has been coined to cover all the privileges asserted as to data within the control of executive departments and administrative agencies. For want of such a term they will be called executive privileges herein. Requests for the production or disclosure of evidence in the control of an executive department or administrative agency give rise to a number of problems distinct from but interrelated with the problems of executive privilege. Among these are: (1) the general scope of discovery, interrogatories and other pre-trial methods of disclosure; (2) questions of substantive privilege; (3) the power of the courts to compel executive and administrative officers to act; (4) questions of admissibility and exclusion of evidence on other grounds, e.g., the hearsay rule and its exceptions; (5) questions involving the removability of official records; (6) the amenability of the state to suit.° All of these are beyond the scope of this article.\u2