Nrdc v. Epa ( 2021 )

20-422
NRDC v. EPA
In the
United States Court of Appeals
FOR THE SECOND CIRCUIT
AUGUST TERM 2020
No. 20-422
NATURAL RESOURCES DEFENSE COUNCIL,
Plaintiff-Appellee,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
Defendant-Appellant.
On Appeal from the United States District Court
for the Southern District of New York
ARGUED: FEBRUARY 10, 2021
DECIDED: NOVEMBER 29, 2021
Before: PARKER, LOHIER, and MENASHI, Circuit Judges.
The U.S. Environmental Protection Agency (“EPA”) appeals an
order entered by the U.S. District Court for the Southern District of
New York (Furman, J.). The district court ordered the EPA to disclose
twenty-eight records pursuant to a Freedom of Information Act
(“FOIA”) request submitted by the Natural Resources Defense
Council. The EPA argues that twenty-two of these records are exempt
from FOIA disclosure pursuant to the FOIA’s Exemption Five, which
incorporates the deliberative process privilege. This appeal presents
the questions of whether records reflecting an agency’s discussions
about how to communicate its policies to people outside the agency
qualify for the deliberative process privilege and whether an agency
must connect a record to a specific contemplated agency decision to
claim the privilege. We conclude that the deliberative process
privilege protects otherwise deliberative records that relate to and
precede an agency’s communications decision about a policy. In the
context of a communications decision, a record is deliberative if it
reflects discussions about how to communicate the agency’s policies
to the public or to other stakeholders. Additionally, we hold that an
agency may invoke the deliberative process privilege by connecting a
record either to a specific decision or to a specific decisionmaking
process. Applying these conclusions to the records at issue in this
appeal, we REVERSE in part, VACATE in part, and REMAND for
further proceedings consistent with this opinion.
Judge Lohier concurs in part and dissents in part in a separate
opinion.
RACHEL L. FRIED (David C. Vladeck, on the brief),
Georgetown University Law Center Civil Litigation
Clinic, Washington, DC, for Plaintiff-Appellee.
TOMOKO ONOZAWA (Benjamin H. Torrance, on the brief),
Assistant United States Attorney, for Damian Williams,
United States Attorney for the Southern District of New
York, New York, NY, for Defendant-Appellant.
2
MENASHI, Circuit Judge:
This case presents two questions regarding the scope of the
deliberative process privilege. First, whether agency records
reflecting deliberations about how to communicate the agency’s
policies to people outside the agency “bear on the formulation or
exercise of policy-oriented judgment” such that those records qualify
for the protection of the deliberative process privilege. Grand Cent.
P'ship, Inc. v. Cuomo, 166 F.3d 473, 482 (2d Cir. 1999). Second, whether
an agency record must relate to a discrete decision facing the agency
in order to merit protection under the deliberative process privilege.
Our answers are yes and no, respectively. An agency exercises
“policy-oriented judgment” when deciding how to communicate its
policies, and the deliberative process privilege therefore protects
otherwise deliberative agency records that relate to and precede the
agency’s final communications decision. Additionally, an agency may
invoke the deliberative process privilege by connecting a record
either to a specific decision or to a specific decisionmaking process.
BACKGROUND
The dispute here arises from the efforts of the Natural
Resources Defense Council (“NRDC”) to obtain certain records from
the U.S. Environmental Protection Agency (“EPA”) through a request
made pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C.
§ 552.
I
The NRDC submitted a FOIA request to the EPA in May 2017.
The request sought records concerning the activities of Dr. Nancy
Beck, then the Deputy Assistant Administrator of the EPA’s Office of
3
Chemical Safety and Pollution Prevention. The NRDC wanted
information about Beck’s role in policymaking under the Toxic
Substances Control Act (“TSCA”) and related pesticide matters.
The EPA did not disclose the requested records by the statutory
deadline, so the NRDC filed this lawsuit to compel disclosure. In
response, the EPA agreed to search for records relating to the NRDC’s
request and identified 1,350 such records. The EPA released 277 of
these records but withheld the rest, either in full or in part, on the
ground that those records were exempt from FOIA disclosure. The
parties then agreed that the EPA would prepare a Vaughn Index
describing 120 of the undisclosed records and justifying the EPA’s
nondisclosure decisions. With the Index prepared and filed, the EPA
moved for summary judgment. The district court granted the EPA’s
motion in part, denied it in part, and ordered the EPA to produce
twenty-eight of the records identified in the Vaughn Index. See Nat.
Res. Def. Council v. EPA (NRDC I), No. 17-CV-5928, 2019 WL 4142725,
at *1 (S.D.N.Y. Aug. 30, 2019). After the district court denied the EPA’s
subsequent motion for reconsideration, see Nat. Res. Def. Council v.
EPA (NRDC II), No. 17-CV-5928, 2019 WL 6467497 (S.D.N.Y. Dec. 2,
2019), the EPA timely appealed.
II
In this appeal, the EPA challenges the district court’s decision
that the deliberative process privilege—incorporated into the FOIA’s
Exemption Five, 5 U.S.C. § 552(b)(5)—does not apply to twenty-two
of the documents that the district court ordered the EPA to disclose.
The parties, and the district court, separate these documents into two
categories: “messaging records” and “briefing documents.” NRDC I,
2019 WL 4142725, at *7, *10 (internal quotation marks omitted).
4
The messaging records “reflect[] internal deliberations by
[agency] staff about how the agency should communicate its policies
to people outside the agency.” Id. at *8. The district court, consistent
with its decision in an earlier case, held that such records “can be
protected by the deliberative process privilege” but only when the
records “reveal the deliberative process underlying a not-yet-finalized
policy decision.” Id. at *8-9 (emphasis in original) (quoting New York
v. U.S. Dep't of Commerce, No. 18-CV-2921, 2018 WL 4853891, at *2
(S.D.N.Y. Oct. 5, 2018)). The district court further held that the
privilege generally does not protect a messaging record that, in
contrast, “merely reflect[s] deliberations about what message should
be delivered to the public about an already-decided policy decision.” Id.
at *9 (emphasis in original) (quoting New York, 2018 WL 4853891, at
*3). 1 Applying this test to seventeen of the documents at issue in this
appeal, the district court held that the EPA failed to justify its
nondisclosure decision because the EPA’s Vaughn Index did not
indicate that those messaging records “would reveal the deliberative
1 The district court provided a narrow exception to this rule, holding that
the privilege would apply to a messaging record relating to “an already-
decided policy decision” if the agency’s communications decision
constituted an “exercise[] of [the agency’s] ‘essential policymaking role’ in
and of [itself].” NRDC I, 2019 WL 4142725, at *8, *10 (quoting New York, 2018
WL 4853891, at *3). The district court did not apply this exception to the
case, nor did it explain how it would determine whether a communications
decision falls within an agency’s “essential policymaking role.” Id. at *9. In
its earlier decision announcing the exception, the district court explained
the exception by way of example, indicating that it would apply to records
reflecting “deliberations within the Federal Reserve about the timing and
content of a policy announcement” regarding an already-decided policy.
New York, 2018 WL 4853891, at *2.
5
process underlying a not-yet-finalized policy decision.” Id. at *9 n.6
(alterations omitted).
The briefing documents “are records ... created to brief senior
agency staff about various topics within the agency’s purview.” Id. at
*11. When analyzing whether the deliberative process privilege
applied to these records, the district court was guided by language in
our precedents indicating that the privilege applies only to records
that both “relate to a specific decision facing the agency” and “formed
an essential link in a specified consultative process.” Id. (citation and
alteration omitted) (quoting Tigue v. DOJ, 312 F.3d 70, 80 (2d Cir.
2002), and Grand Cent. P'ship, 166 F.3d at 482). The district court
concluded that the four briefing documents at issue in this appeal
failed to meet those criteria. Id.The district court did not analyze the final record disputed in
this appeal—“a draft agenda for a[n agency] ... meeting” with
members of the public—as either a messaging record or a briefing
document. Id. at *13; see J. App’x 162-63. Upon our review of the
Vaughn Index entry for this record, we accept the EPA’s
characterization of this document as a messaging record. 2 Thus, this
2 The NRDC argues that the EPA waived its ability to characterize this
record as a messaging record because the district court did not classify it as
such in its opinion and the EPA failed to include this record in its motion
for reconsideration before the district court. The EPA’s Vaughn Index,
however, characterized this record in a manner resembling its
characterization of the other messaging records disputed here. That the
district court thought this record was better characterized under a different
heading does not force the EPA to forfeit its argument that it properly
refused to disclose this record because it reflects deliberations about how
the agency should communicate its policies to people outside the agency.
6
appeal concerns eighteen messaging records and four briefing
documents.
STANDARD OF REVIEW
We review the district court’s summary judgment decision de
novo. Ctr. for Constitutional Rights v. CIA, 765 F.3d 161, 166 (2d Cir.
2014). “[T]he defending agency has the burden of showing that ... any
withheld documents fall within an exemption to the FOIA.” Carney v.
DOJ, 19 F.3d 807, 812 (2d Cir. 1994). At the same time, we “accord[] a
presumption of good faith” to an agency’s “[a]ffidavits or
declarations,” id., and when an agency provides “reasonably detailed
explanations” to support its decision to withhold a document, its
“justification is sufficient if it appears logical and plausible,” ACLU v.
DOD, 901 F.3d 125, 133 (2d Cir. 2018).
DISCUSSION
The district court’s decision to order the EPA to disclose the
disputed documents pursuant to the NRDC’s FOIA request raises two
independent issues regarding the scope of the deliberative process
privilege. 3 First, whether the privilege applies to “messaging
Furthermore, a party’s failure to include an argument in a motion for
reconsideration does not render that argument waived on appeal when the
party made the argument to the district court before the court issued the
judgment that is being appealed. See United States v. Harrell, 268 F.3d 141,
146 (2d Cir. 2001) (holding that an argument is not waived “if it was
‘pressed or passed upon below’”) (quoting United States v. Williams, 504 U.S.
36, 41 (1992)).
3The decision ordering disclosure took the form of a partial denial of
summary judgment. See NRDC I, 2019 WL 4142725, at *16. Although such
decisions are generally considered non-final and therefore are not
7
records,” that is, records relating to an agency’s decision about how
to communicate its policies to people outside the agency, and, if the
privilege can apply, whether it makes a difference if the messaging
record relates to a finalized policy or to one not yet conclusively
determined. Second, when it comes to documents (such as the
briefing documents in the case) that discuss an agency’s ongoing
activities and practices, whether those documents can qualify for the
deliberative process privilege even if the information contained
therein does not relate to a discrete decision facing the agency.
I
The “FOIA mandates the disclosure of documents held by a
federal agency unless the documents fall within one of nine
enumerated exemptions.” U.S. Fish & Wildlife Serv. v. Sierra Club, Inc.,
141 S. Ct. 777, 785 (2021); see 5 U.S.C. § 552. The FOIA’s Exemption
Five excepts from disclosure “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). “[T]his exemption incorporates ... the deliberative process
privilege, attorney-client privilege, and attorney work-product
privilege.” Sierra Club, 141 S. Ct. at 785.
This case concerns the deliberative process privilege. “[T]he
deliberative process privilege shields from disclosure ‘documents
reflecting advisory opinions, recommendations and deliberations
comprising part of a process by which governmental decisions and
policies are formulated.’” Id. (quoting NLRB v. Sears, Roebuck & Co.,
appealable, we have held that “partial disclosure orders in FOIA cases are
appealable.” Ferguson v. FBI, 957 F.2d 1059, 1063 (2d Cir. 1992).
8
421 U.S. 132, 150 (1975)). The privilege “encourage[s] candor, which
improves agency decisionmaking,” by “blunt[ing] the chilling effect
that accompanies the prospect of disclosure.” Id.4 Consistent with the
rationale underlying the deliberative process privilege, it applies only
to “predecisional, deliberative documents.” Sierra Club, 141 S. Ct. at
785. Generally, “[d]ocuments are ‘predecisional’ if they were
generated before the agency’s final decision on [a] matter, and they
are ‘deliberative’ if they were prepared to help the agency formulate
its position.” Id. at 786.
The “predecisional” requirement excludes a document that
“reflects the consummation of the agency’s decisionmaking process
and not a merely tentative position.” Id. (internal quotation marks
omitted). Still, a document may qualify for protection even when
“nothing else follows it.” Id. “Sometimes a proposal dies on the vine”
and “documents discussing such dead-end ideas can hardly be
described as reflecting the agency’s chosen course.” Id. Similarly, the
Supreme Court has cautioned that its “emphasis on the need to
protect pre-decisional documents does not mean that the existence of
4 We have further explained that the deliberative process privilege also
“protect[s] against premature disclosure of proposed policies before they
have been finally formulated or adopted” and “against confusing the issues
and misleading the public by dissemination of documents suggesting
reasons and rationales for a course of action which were not in fact the
ultimate reasons for the agency’s action.” Grand Cent. P'ship, 166 F.3d at 481(quoting Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C.
Cir. 1980)). Still, “[t]he key question we keep in mind when assessing the
application of the deliberative process privilege to an agency record is
whether disclosure would tend to diminish candor within an agency.” Nat.
Res. Def. Council v. EPA, 954 F.3d 150, 158 (2d Cir. 2020) (internal quotation
marks omitted).
9
the privilege turns on the ability of an agency to identify a specific
decision in connection with which a memorandum is prepared” and
that “courts should be wary of interfering with” an agency’s
“continuing process of examining [its] policies.” Sears, Roebuck & Co.,
421 U.S. at 151 n.18. To determine whether a document is
“deliberative,” we determine whether the document was “prepared
to help the agency formulate its position,” Sierra Club, 141 S. Ct. at 786,
by analyzing “if it reflects the give-and-take of the consultative
process,” Nat. Res. Def. Council, 954 F.3d at 156.
Not every decision made within an agency will entail the kind
of “consultative process” the deliberative process privilege is
designed to protect. Our precedents have established that the
deliberative process privilege protects only those records that “bear
on the formulation or exercise of policy-oriented judgment.” Grand
Cent. P'ship, 166 F.3d at 482. As then-Judge Ginsburg explained when
formulating this “policy-oriented judgment” proviso, “homing in on,
and sheltering material implicating officials’ exercise of judgment
about policy matters secures the internal agency give-and-take” that
the deliberative process privilege is “meant to protect” and “helps us
answer the key question in these cases: whether disclosure would
tend to diminish candor within an agency.” Petrol. Info. Corp. v. U.S.
Dep't of Interior, 976 F.2d 1429, 1435 (D.C. Cir. 1992) (R.B. Ginsburg, J.)
(internal quotation marks omitted). This concern with “diminish[ing]
officials’ candor or otherwise injur[ing] the quality of agency
decisions” arises when an agency is compelled to disclose “materials
[that] can reasonably be said to embody an agency’s policy-informed
or -informing judgmental process” or its “mode of formulating or
exercising policy-implicating judgment.” Id. at 1435-36. By contrast,
“[t]he release of materials that do not embody agency judgments—for
10
example, materials relating to standard or routine computations or
measurements over which the agency has no significant discretion—
is unlikely to diminish officials’ candor or otherwise injure the quality
of agency decisions.” Id. at 1436. For that reason, courts need not be
concerned that “[r]equiring disclosure of such materials” would
disturb “efficient government operation.” Id.II
Applying these principles to the case at hand, we first consider
the messaging records. These records “reflect[] internal deliberations
by [agency] staff about how the agency should communicate its
policies to people outside the agency.” NRDC I, 2019 WL 4142725, at
*8. Included in these records are draft talking points prepared for
senior agency staff about agency policies and internal discussions and
draft responses relating to inquiries from the press and from members
of Congress. Id. at *8-9.
A
The NRDC does not dispute that the messaging records “were
generated before the agency’s final decision” regarding how to
communicate and are thus “predecisional” with respect to those
communications decisions. Sierra Club, 141 S. Ct. at 786. Rather, the
NRDC argues that an agency’s decision about how to communicate
its policies to people outside the agency does not generally involve
the “formulation or exercise of policy-oriented judgment” and the
deliberative process privilege therefore does not protect the EPA’s
internal discussions about how to formulate those communications.
Grand Cent. P'ship, 166 F.3d at 482. We disagree.
11
An agency’s decision regarding how to communicate its
policies and actions to Congress, the public, and other stakeholders
can have substantial consequences. 5 A poor communications decision
at a congressional hearing might mean the difference between
receiving the agency’s requested budgetary appropriation, on the one
hand, or inviting intrusive oversight hearings into agency operations,
on the other. Communications with the press, industry members, and
the public have similarly high stakes. An agency might attract public
support that it can leverage to pursue its policy agenda or invite a
backlash that would undermine that agenda. If an agency seeks to
shape conduct through its policies, it must take care to explain those
policies in ways that will elicit compliance. 6 As it pursues its policy
agenda, moreover, the agency must maintain consistency with the
explanations it has previously provided or else risk losing credibility.
5 See, e.g., William E. Kovacic, Creating A Respected Brand: How Regulatory
Agencies Signal Quality, 22 Geo. Mason L. Rev. 237, 237-41 (2015) (observing
that an agency’s reputation is crucial to its “effectiveness,” including its
ability to obtain deference from judges, legislators, and public regulators,
as well as its attempt to “build[] credibility with the general public,
advocacy groups, universities, the media, professional societies, trade
associations, and individual businesses”); id. at 243-44 (explaining that
“[e]ach of an agency’s public statements” about its “[a]ims and
[a]ctivities”—whether the statement comes “by means of a decision in a
case, a report, a guideline, a speech, or testimony before a government
body”—builds the agency’s reputation and that “achieving coherence in
public expressions” can sometimes be “difficult”).
6 See, e.g., Milton Russell, Risk Communication: Informing Public Opinion, EPA
J., Nov. 1987, at 20, 20-21 (“[W]hen it comes to protecting health and the
environment, it is public, not expert, opinion that counts. ... The challenge
of risk communication is to provide this information in ways that it can be
incorporated in the views of common citizens who have little time or
patience for arcane scientific discourse.”).
12
See Russell v. Dep’t of the Air Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982)
(noting that an agency “must stand by” its “official statement[s] ... in
the public forum, and ... perhaps in the judicial forum as well”).
Given these considerations, “an agency’s decision regarding
how to present its substantive policies to the public often involves the
evaluation of alternative public relations policies, policies which by
their very nature are audience-sensitive and must anticipate public
reaction.” Seife v. Dep’t of State, 298 F. Supp. 3d 592, 616 (S.D.N.Y.
2018). Indeed, “the decision of how, and to what extent, to convey that
policy to the public may require input by many working components
within the agency, or even an analysis of the underlying policy itself.”
Id. Thus, an agency’s communications decisions necessarily implicate
the agency’s policies and must be informed by those policies. Those
decisions involve “the formulation or exercise of policy-oriented
judgment.” Grand Cent. P'ship, 166 F.3d at 482; see Petrol. Info., 976 F.2d
at 1435 (explaining that an agency formulates or exercises “policy-
oriented judgment” through its “policy-informed or -informing
judgmental process” and its “mode of formulating or exercising
policy-implicating judgment”) (emphasis added). Because
communications decisions involve “the formulation or exercise of
policy-oriented judgment,” deliberations about—and preceding—
those decisions are protected by the deliberative process privilege.
Grand Cent. P'ship, 166 F.3d at 482.
An agency exercises policy-oriented judgment when
communicating its policies “even when [the] underlying decision or
policy has already been established by the agency.” Seife, 298
F. Supp. 3d at 616. Regardless of whether the agency has definitively
determined the relevant policy, its decision regarding how to
communicate that policy does not constitute a “mundane,”
13
“standard[,] or routine” decision “over which the agency has no
significant discretion.” Petrol. Info., 976 F.2d at 1436 & n.8. Rather, the
communications decision implicates the agency’s policymaking role
and remains “delicate and audience-sensitive, susceptible to
distortions and vulnerable to fudging when the deliberators fear or
expect public reaction.” Id. at 1435. Applying the deliberative process
privilege to records reflecting deliberations about these issues ensures
that agency staff can consider communications decisions candidly
and thereby promotes “efficient government operation.” Id. at 1436.
Our conclusion that otherwise deliberative messaging records
merit protection under the deliberative process privilege finds
support in our precedents and those of other circuits. In ACLU v. DOJ,
we decided that certain records related to the government’s use of
drone strikes were not subject to FOIA disclosure. See 844 F.3d 126,
132-33 (2d Cir. 2016). Two of those records resembled the messaging
records at issue in this case. The first, “OLC 144,” was “a set of
suggested talking points concerning the legal basis for drone strikes.”
Id. at 133. The second, “CIA 59 [T]ab C,” was “a draft of a proposed
op-ed article that suggested some ways of explaining the
Government’s legal reasoning in support of drone strikes.” Id. We
ruled that both of these documents were “predecisional” and
therefore “need not be disclosed” pursuant to “FOIA Exemption 5”
Id. at 132-33. Like the messaging records in this case, the documents
in ACLU related to internal agency deliberations regarding how the
agency would communicate with people outside the agency about a
substantive decision the agency had already made—namely, its drone
strike policy. Thus, our decision that those records were
“predecisional” and protected by “Exemption 5,” id., implicitly
acknowledged what we clarify today: Records reflecting agency
14
deliberations relating to and preceding a communications decision
are covered by the deliberative process privilege. 7
This conclusion finds additional support in the First Circuit’s
decision in New Hampshire Right to Life v. HHS, 778 F.3d 43 (1st Cir.
2015). In that case, a FOIA requester argued that “documents [that]
post-date ... [HHS’s] decision to proceed with a ... grant process” for
a Planned Parenthood chapter were “not pre-decisional” and
therefore were subject to disclosure. Id. at 53-54. The First Circuit
rejected this argument, reasoning that the documents “pre-date the
public announcement” of the decision to proceed with the grant
process and the “documents deal with the Department’s decision of
how and what to communicate to the public, which is a decision in
and of itself.” Id. Thus, New Hampshire Right to Life also stands for the
proposition that agency records reflecting internal deliberations
about how the agency should communicate with people outside the
agency qualify for the deliberative process privilege, even if those
deliberations occur after the agency has adopted the underlying
policy. 8
7 The NRDC argues that we should understand our decision in ACLU v.
DOJ to have exempted OLC 144 and CIA 59 Tab C from disclosure pursuant
to the attorney work-product privilege, which Exemption Five also
incorporates. Yet our repeated use of the word “predecisional” in
explaining our decision, see 844 F.3d at 132-33, indicates that we were
applying the deliberative process privilege. See also id. at 132 (observing that
the government argued that that these “documents are predecisional drafts
protected by FOIA Exemption 5”).
8The NRDC tries to distinguish New Hampshire Right to Life by arguing that,
“[g]iven the incendiary politics that surround allegations of government
funding of abortions, the decision of whether and how to announce the
15
Finally, some of the very decisions from which then-Judge
Ginsburg distilled the deliberative process privilege’s “policy-
oriented judgment” proviso indicate that agency deliberations about
communications decisions qualify for the privilege. “In Dudman
Communications [v. Department of Air Force, 815 F.2d 1565 (D.C. Cir.
1987),] and in Russell v. Department of Air Force, 682 F.2d 1045 (D.C.
Cir. 1982),” the D.C. Circuit “held preliminary drafts of official
military histories exempt” from FOIA disclosure pursuant to the
deliberative process privilege. Petrol. Info., 976 F.2d at 1434. Russell
explained that military histories “constitute[] the Air Force’s official
statement concerning the history” of its operations. 682 F.2d at 1048.
The court observed that “[t]he Air Force depends on this official
statement to provide a basis for future military and public policy
decisions” and that it also “must stand by its history in the public
forum, and ... perhaps in the judicial forum as well.” Id. These military
histories resemble the communications decisions at issue in this
appeal. Both are agency statements to the public regarding the
agency’s actions to implement policies that have already been
funding decision [in that case was] inherently policy-laden.” Brief for
Plaintiff-Appellee at 34. This argument recognizes the logic that justifies our
decision today. As the NRDC acknowledges, public reaction to an agency’s
communication of its already-decided policies affects the agency’s ability to
pursue its policy agenda. We reject the NRDC’s effort to cabin this
reasoning to issues that it considers “incendiary.” Id. Such a standard is too
subjective to provide the stable expectations that the deliberative process
privilege requires, see In re The City of New York, 607 F.3d 923, 942 (2d Cir.
2010) (“[F]or a privilege to serve its intended function, potential litigants
must be able to predict which of their materials will be protected by the
privilege.”), and indeed an issue might be “incendiary” within the agency’s
specialized sphere of responsibility even if a court might not later recognize
it as such.
16
decided. As we do here, the D.C. Circuit recognized that such
statements impact an agency’s operations and accordingly records
reflecting deliberations about how to formulate these statements
merit protection under the deliberative process privilege. See Dudman,
815 F.2d at 1568-69; Russell, 682 F.2d at 1048-49.
In fact, the D.C. Circuit in Russell rejected arguments similar to
those advanced by the NRDC and accepted by the district court in this
case. The D.C. Circuit rejected the FOIA requesters’ “argu[ment] that
the deliberative process privilege is intended to protect
decisionmaking concerning legal or policy matters in the context of
an agency’s exercise of rulemaking, adjudication, awarding of
contracts or grants, or decisions involving health, safety or foreign
affairs.” Russell, 682 F.2d at 1049 n.2. The court found “nothing in the
case law or legislative history that indicates the privilege is so
limited.” Id. Additionally, Russell noted that the FOIA requesters’
“argument that the draft report is somehow post decisional because
[it is] historical is faulty.” Id. at 1049 n.1. The court continued that
“[t]he report was made public [and] certain draft portions of the
report were withheld” and concluded that “[t]he report itself is the
agency action or decision” with respect to which “the draft ... is
indisputably pre-decisional.” Id.The D.C. Circuit followed a similar approach in National
Security Archive v. CIA, holding that an unpublished draft of a CIA
military history was exempt from disclosure under the FOIA. 752 F.3d
460 (D.C. Cir. 2014) (Kavanaugh, J.). The court explained that “an
agency’s official history is a final agency decision” because it
“constitutes the agency’s ‘official statement’ concerning the agency’s
prior actions, and it helps educate future agency decisionmakers.” Id.
at 463 (quoting Russell, 682 F.2d at 1048).
17
Likewise, in Reporters Committee for Freedom of the Press v. FBI,
the D.C. Circuit decided that communications decisions made in the
context of “public debate” surrounding an agency’s policy called for
the exercise of a policy-oriented judgment and were therefore
protected by the deliberative process privilege. 3 F.4th 350, 362 (D.C.
Cir. 2021). The deliberative materials in Reporters Committee included
drafts of a letter to the editor by FBI Director James Comey that
“defended” an already-settled policy of the FBI regarding undercover
investigations and the agency’s prior implementation of that policy.
Id. With regard to those messaging records, the D.C. Circuit
concluded that the “discussions regarding proposed revisions to
Director Comey’s letter” were exempt from disclosure under the
FOIA’s Exemption Five because those deliberations about the
agency’s public statement “were part of an internal dialogue about
critical judgment calls aimed at advancing the agency’s interests.” Id.
at 363. Such a public statement, the court said, did not result from the
sort of merely “descriptive discussions” that do not warrant the
protection of the deliberative process privilege. Id. To the contrary,
the deliberations over how to craft the agency’s defense of its prior
conduct contained “the type of back-and-forth exchange of ideas,
constructive feedback, and internal debate over how best to promote
and to preserve the undercover policy that sits at the heart of the
deliberative process privilege.” Id. at 364.
We agree that while merely “descriptive discussions” do not
qualify for the deliberative process privilege, agency deliberations
over how to communicate and promote existing policies to people
18
outside the agency is not solely a “descriptive” exercise. Id. 9 Rather,
such communications “can be delicate and audience-sensitive” and
require the agency to “exercise ... policy-oriented judgment” to
effectively pursue its policymaking agenda. Petrol. Info., 976 F.2d at
1435. The agency’s communications decisions affect whether the
agency will be able to “preserve an existing policy,” Reps. Comm.,
3 F.4th at 362, or will attract opposition.
All in all, judicial precedent indicates that an agency exercises
“policy-oriented judgment” when communicating its policies to
people outside the agency. Grand Cent. P'ship, 166 F.3d at 482.
Therefore, records reflecting deliberations—as opposed to merely
descriptive discussions—regarding those decisions are protected by
the deliberative process privilege.
9 Indeed, as we note infra in Part III.B., records reflecting the attempt of
agency employees merely to describe the agency’s current practices to a
superior official do not qualify for the deliberative process privilege. Our
decision is consistent with another holding of Reporters Committee—that the
deliberative process privilege did not apply to drafts of an “FBI
presentation ... to the White House ... that did nothing more than explain
[an] existing FBI policy.” 3 F.4th at 367. While we would consider such a
presentation a policy-oriented exercise if it occurred before members of the
public or Congress, that conclusion does not hold for the scenario at issue
in Reporters Committee. Because the FBI reports to the President, we would
not view the presentation at issue in Reporters Committee as the culmination
of an agency communications decision that merited the protection of the
deliberative process privilege under the standard announced today, and
deliberations over that presentation would therefore not implicate the
policy-oriented judgment involved in communicating with outside
stakeholders.
19
B
Having concluded that an agency’s communications decision
generally constitutes an “exercise of policy-oriented judgment,”
Grand Cent. P'ship, 166 F.3d at 482, we now consider whether the
messaging records at issue in this appeal in fact reflect “deliberations”
regarding communications decisions. As noted, we consider a
document deliberative “if it reflects the give-and-take of the
consultative process.” Nat. Res. Def. Council, 954 F.3d at 156.
In the context of a messaging record, we believe that the
relevant “consultative process” includes the agency’s effort to
determine what to say about a policy and how to formulate that
message. Records designed to contribute to those decisions are
deliberative. However, records that are not related to the form and
content of the communication will generally lie outside the scope of
the privilege, even if those records were created while the agency was
making its communications decision. In other words, only those
agency documents that “bear on the formulation or exercise” of the
“policy-oriented judgment” embodied in an agency communication
qualify as deliberative. Grand Cent. P'ship, 166 F.3d at 482. Records
that bear on technical matters “peripheral to” that communications
decision, such as what time of day an agency spokesman will be
available to deliver that message or which conference room to use for
a press briefing, lie outside the scope of the privilege. Id. 10
10To be clear, we do not hold that records related to matters that appear
technical, such as scheduling considerations, can never be covered by the
deliberative process privilege. Rather, if an agency invokes the deliberative
process privilege to withhold messaging records that do not relate to the
form and content of a communications decision, the agency must provide a
20
Bearing this in mind, we reverse the district court’s decision
with respect to eleven of the messaging records it ordered disclosed:
Documents 401, 8309, 9765, 11126, 21815, 22970, 23178, 25096, 25349,
25605, and 25606. 11 The Vaughn Index entry for each of these records
demonstrates that it was created as part of the EPA’s efforts to
communicate with people outside the agency about specific policies
and that the document reflects discussions about what to say about
the policy or how to formulate that message. See J. App’x 77-78, 91-95,
135-37, 141-42, 148-50, 172-73, 186-87, 194-95. 12 Furthermore, these
entries indicate that the records reflect the views of agency staff, not
the ultimate communications decision on which the EPA itself
settled. 13 Thus, these records are predecisional and deliberative and
specific “reasonably detailed explanation[],” ACLU v. DOD, 901 F.3d at 133,
as to why that record in fact “bear[s] on the formulation or exercise” of the
“policy-oriented judgment” embodied in that agency communication.
Grand Cent. P’ship, 166 F.3d at 482.
11The EPA’s Vaughn submissions to the district court identified records
using extended alphanumeric strings. For ease of reference, we refer to
those records by their unique terminal digits. For example, we refer to
“ED_001338_00000401” as “Document 401.”
12For example, Document 401 is a “two-page draft of talking points for
then-EPA Administrator Scott Pruitt.” J. App’x 77. The EPA’s Vaughn
submission explains that the withheld information “reflects draft language
on how to present the EPA program for reviewing new chemicals under the
Toxic Substances Control Act,” which “was shared with a senior manager
for her opinions, edits, and recommendations on how to present
information about the new chemicals review.” Id.13The draft talking points in Document 401, for example, “do[] not reflect
an official Agency policy or decision” because the talking points were “still
being edited and reviewed” when the document was created. J. App’x 77.
Rather, the document “reflect[s] the incomplete view of some staff who[]
shared the document for internal discussion.” Id. at 78.
21
exempt from disclosure pursuant to the FOIA’s Exemption Five and
the deliberative process privilege. See Grand Cent. P’ship, 166 F.3d at
483 (concluding that a document was “pre-decisional” because it was
“directly related to the three agency decisions ... and precede[d] all
three in temporal sequence” and that the document was
“deliberative” because it “formed an important ... link in [the
agency’s] consultative process, ... reflects the personal opinions of its
writer,” and “may well reflect inaccurately upon or prematurely
disclose the views of [the agency]”).
However, the EPA’s Vaughn Index entries for the remaining
seven messaging records that the district court ordered the EPA to
disclose do not provide sufficient details from which we can ascertain
the records’ deliberative character. These records are Documents
2048, 5427, 7169, 13150, 13257, 19639, and 22782. Six of these records
arguably reflect agency discussions leading up to a communications
decision regarding its policies, but the entries for these records do not
indicate whether these discussions concerned the agency’s decision of
what to say about the policy or how to formulate that message. See
J. App’x 86-87, 89-90, 101-02, 104-05, 137-38, 162-63. 14 Consequently,
14 The entry for Document 7169, for example, reveals only that the record
“discuss[es] a request from an Associated Press reporter for an interview
about asbestos” and “reflect[s] pre-decisional deliberations ... about
responding to [that] request.” J. App’x 89-90. If these deliberations
concerned how the EPA would present its position on some asbestos-
related policy in that interview, the document would qualify for the
deliberative process privilege. But the description does not indicate the
focus of the discussions reflected in Document 7169. The EPA’s effort to
“respond[] to a request from a reporter ... for an interview,” id. at 90, could
involve a host of technical considerations, such as scheduling conflicts, and
a record that relates to those issues would likely fall outside the scope of the
22
we cannot discern whether these records relate to the “consultative
process” relevant to these communications decisions, Nat. Res. Def.
Council, 954 F.3d at 156, or instead concern matters merely “peripheral
to” those decisions, Grand Cent. P’ship, 166 F.3d at 482.
The seventh of these records presents a somewhat unique case.
This record, Document 22782, contains “draft suggestions and
responses to [a] reporter’s question” that “do[] not reflect an official
Agency policy or final agency action or decision.” J. App’x 141. If this
reporter’s question concerned one of the EPA’s policies, then we
would have little trouble concluding that the record is deliberative.
Yet the reporter inquired about the agency’s “postponed meeting on
glyphosate,” a chemical compound then under review. Id. (emphasis
added). Absent any explanation in the Vaughn Index entry, we cannot
determine whether the EPA’s initial decision to postpone that
meeting resulted from considerations that would allow us to
conclude that the agency’s communications decision regarding the
postponement involved the exercise of policy-oriented judgment. 15
deliberative process privilege. Additionally, the entry does not explain
what, if any, asbestos-related policy issues the reporter inquired about. The
deliberative process privilege does not automatically apply when an
agency simply connects a record to a topic within its purview.
15 Perhaps the meeting was postponed because of weather-related
transportation delays or cancellations. It is hard to imagine how
communicating that information requires policy-oriented judgment. But
the EPA’s communications decision regarding the postponement could
have involved the exercise of policy-oriented judgment. Perhaps the agency
postponed the meeting because it was reconsidering its position on
glyphosate. If that was the case, the agency would have had to carefully
formulate its response to the reporter’s question if it did not want
23
We nonetheless vacate the district court’s order requiring the
EPA to disclose these seven messaging records and remand for the
agency to provide additional explanation consistent with the
standard we describe here. Until now, our precedents had not
provided clarity regarding what types of messaging records an
agency may withhold pursuant to the deliberative process privilege.
When the EPA prepared its Vaughn Index, it could not have known
the details that we would require to uphold its reliance on the
privilege. Accordingly, the EPA should have the opportunity to
explain its withholding decisions in light of the clarified standard,
and we remand to allow the EPA to revise its Vaughn Index entries for
these seven records if it chooses to do so.
III
We now turn to the four briefing documents, Documents 14518,
14561, 14935, and 25173. These documents “are records ... created to
brief senior agency staff about various topics within the agency’s
purview.” NRDC I, 2019 WL 4142725, at *11. Specifically, these
documents reflect efforts by agency employees to “provid[e] [a]
senior manager with information and supporting documentation in
response to her questions and comments on the role of epidemiology
data in [the agency’s] human health risk assessments.” J. App’x 117,
121.
prematurely to disclose that it was reconsidering those policies. Still, the
current Vaughn Index entry for Document 22782 fails to provide a
sufficiently “reasonably detailed explanation[]” to justify the EPA’s
decision to withhold this record. ACLU v. DOD, 901 F.3d at 133.
24
A
In setting out the “[a]pplicable [l]egal [p]rinciples” for the
deliberative process privilege, the district court explained that for a
document to qualify as predecisional the agency “must be able to
demonstrate that, ex ante, the document for which [the] privilege is
claimed related to a specific decision facing the agency.” NRDC I, 2019
WL 4142725, at *6 (quoting Tigue, 312 F.3d at 80). The district court
then applied this requirement when it ordered the EPA to disclose the
briefing documents, holding that those records were not
“predecisional” because the records did not “‘relate to a specific
decision facing the agency.’” Id. at *11 (internal citation and alteration
omitted) (quoting Tigue, 312 F.3d at 80).
Requiring that a record “relate to a specific decision facing the
agency,” however, places an unduly restrictive gloss on the
deliberative process privilege’s predecisional requirement. While that
requirement excludes records that discuss a decision already made,
see Sierra Club, 141 S. Ct. at 786, it “does not mean that the existence of
the privilege turns on the ability of an agency to identify a specific
decision in connection with which a memorandum is prepared,”
Sears, Roebuck & Co., 421 U.S. at 151 n.18. To the contrary, “[a]gencies
are, and properly should be, engaged in a continuing process of
examining their policies,” and “courts should be wary of interfering
with this process.” Id. In light of this admonition, we hold that a
record is predecisional if it relates to a specific decision or a specific
decisionmaking process and was generated before the conclusion of that
decision or process. The D.C. Circuit has long recognized that the
privilege does not “require that [a] document contribute to a single,
discrete decision” but rather protects records that, more broadly,
25
relate to a “definable decisionmaking process.” Access Reps. v. DOJ,
926 F.2d 1192, 1196 (D.C. Cir. 1991).
For example, an agency may undertake a critical review of its
regulations without the objective of implementing a specific new
statute or achieving a particular amendment to the regulations. If the
deliberative process privilege applied only to documents that relate
to a specific decision facing the agency, one might argue that
deliberations occurring in the course of that review do not qualify for
the privilege. But under our test, the agency’s critical review
represents a specific decisionmaking process and the agency may
withhold records reflecting deliberations relevant to that process. The
agency might also undertake a critical review of its decisionmaking
processes—such as the agency’s methodology for conducting cost-
benefit analyses when it regulates—even if that review is not directed
at altering, repealing, or promulgating a specific regulation. Records
relating to that review would be connected to a specific
decisionmaking process.
It is true that our opinion in Tigue stated that an agency “must
be able to demonstrate that, ex ante, the document for which executive
privilege is claimed related to a specific decision facing the agency,”
312 F.3d at 80, but Tigue did not adopt this requirement as the law of
our circuit or hold that it was the exclusive test for applying the
privilege. Rather, we employed that language to explain the “Ninth
Circuit[’s] … holding that … the government must show that the
material was prepared to assist the agency in the formulation of some
specific decision.” Id. (discussing Maricopa Audubon Soc’y v. U.S. Forest
Serv., 108 F.3d 1089, 1094 (9th Cir. 1997)). The relevant discussion in
Tigue rejected the plaintiffs’ argument in that case that, if the Ninth
Circuit’s test were to apply, it would require a different result than
26
the one we had reached under our prior decision in Grand Central
Partnership. See id. 16
B
Even under the test we adopt today for determining whether a
document is predecisional, we cannot conclude on the present record
that the EPA properly withheld the four briefing documents. The
Vaughn Index entries for those records merely note that the records
contain information “on the role of epidemiology data in [the
agency’s] risk assessments” and were prepared in response to a senior
official’s “questions and comments” on that topic. J. App’x 117, 121.
In its briefing before our court, the EPA insists that these documents
related to two ongoing rulemaking processes under the TSCA, but the
corresponding Vaughn Index entries do not draw any such
connection. And while the entries do indicate that the information
contained in these records “was considered as part of the Agency’s
deliberations on the role of epidemiology data in [the agency’s]
human health risk assessments,” the entries do not explain whether
the agency had undertaken to critically review or revise its practices
regarding the use of epidemiology data. Id. at 117-18, 121-22. In other
16Our opinion in Brennan Ctr. for Justice v. DOJ, 697 F.3d 184 (2d Cir. 2012),
also did not adopt a specific decision requirement. In Brennan Center we
quoted from a First Circuit case to say that “an agency may meet its burden
of proof under the predecisional document test by demonstrating … that
the document was originated to facilitate an identifiable final agency
decision.” Id. at 202 (emphasis added) (internal quotation marks omitted)
(quoting Providence J. Co. v. U.S. Dep’t of Army, 981 F.2d 552, 559 (1st Cir.
1992)). Relying on the language of “may”—not “must”—implies that
identifying a “specific decision” is a possible, but not the exclusive, way for
an agency to “meet its burden of proof under the predecisional document
test.” Id.27
words, these Vaughn Index entries do not clarify whether the
information contained in these records was collected and curated to
assist in an agency decisionmaking process related to the role of
epidemiology data or if the material was instead prepared merely to
describe the agency’s current practices to an agency official.
Nonetheless, we will vacate the district court’s order requiring
the EPA to disclose these four briefing documents. When the EPA
prepared its Vaughn Index, it lacked guidance from our court
regarding how a record relevant to a decisionmaking process—as
opposed to a specific decision—might qualify for the deliberative
process privilege. The EPA should have the opportunity to explain its
withholding decisions in light of the clarified test we adopt today, and
we remand for the EPA to revise its Vaughn Index entries for these
four briefing documents if it chooses to do so. 17
CONCLUSION
Agencies exercise policy-oriented judgment when determining
how to communicate with people outside the agency about a policy.
Therefore, the deliberative process privilege shields otherwise
deliberative agency records that relate to and precede an agency’s
17The district court also decided that these records were not “deliberative”
because the records did not “form[] an essential link in a specified
consultative process.” NRDC I, 2019 WL 4142725, at *11 (quoting Grand
Cent. P'ship, 166 F.3d at 482). Yet when viewing the deliberative process
privilege’s application in the context of a broader decisionmaking process—
a view that the district court might have thought our precedents
foreclosed—material that provides an overview of an agency practice
implemented across many decisions, such as the EPA’s use of epidemiology
data in human health risk assessments, might very well constitute a record
related to that consultative process.
28
communications decision. In this context, a record is “deliberative” if
it reflects discussions about what the agency should say about a
policy or how to formulate that message. Additionally, an agency
may invoke the deliberative process privilege by connecting a record
not only to a specific contemplated decision but also to a specific
decisionmaking process.
In this case, the EPA’s Vaughn submissions establish that eleven
of the “messaging records” subject to the EPA’s appeal meet the
standards outlined above. Accordingly, we REVERSE the district
court’s decision denying the EPA summary judgment with respect
those eleven records—Documents 401, 8309, 9765, 11126, 21815,
22970, 23178, 25096, 25349, 25605, and 25606. 18 We also VACATE the
district court’s order requiring the EPA to disclose the other records
disputed in this case and REMAND for the EPA to revise the
corresponding Vaughn Index entries if it so chooses and for further
proceedings consistent with this opinion.
18Despite the NRDC’s insistence, we need not remand for the district court
to determine whether the EPA “reasonably foresees that disclosure” of
these records “would harm an interest protected by” Exemption Five.
5 U.S.C. § 552(a)(8)(A)(i). The district court already determined that the
EPA met the “foreseeable harm” requirement and concluded that
“summary judgment must be and is granted to the agency on this issue.”
NRDC I, 2019 WL 4142725, at *5. The district court did not carve out any
records from its holding regarding the foreseeable harm requirement.
29
1 LOHIER, Circuit Judge, concurring in part and dissenting in part:
2 Congress passed the Freedom of Information Act, 5 U.S.C. § 552, to
3 provide the public with access to “official information long shielded
4 unnecessarily from public view.” Envtl. Prot. Agency v. Mink, 410 U.S. 73, 80
5 (1973). The statute revised the public disclosure section of the Administrative
6 Procedure Act, 5 U.S.C. § 1002 (1964 ed.), which had fallen “far short of its
7 disclosure goals.” Id. at 79. Where the Administrative Procedure Act had
8 allowed the Government to evade disclosure wherever it claimed secrecy was “in
9 the public interest,” id., FOIA set forth “a general philosophy of full agency
10 disclosure unless information is exempted under clearly delineated statutory
11 language,” S. Rep. No. 813, 89th Cong., 1st Sess., 3 (1965). Even FOIA’s
12 exemptions “do not obscure . . . that disclosure, not secrecy, is the dominant
13 objective of the Act.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976). In
14 2016, out of concern that “some agencies [were] overusing FOIA exemptions,” S.
15 REP. NO. 4, 114th Cong., 1st Sess. 2 (2015), Congress adopted the FOIA
16 Improvement Act, Pub. L. No. 114–185, 130 Stat. 538 (2016), under which
17 agencies may withhold information under a FOIA exemption only if the agency
18 “reasonably foresees that disclosure would harm an interest protected by an
1 exemption” or if “disclosure is prohibited by law,” FOIA Improvement Act § 2,
2 130 Stat. at 539 (codified at 5 U.S.C. § 552(a)(8)(A)(ii)).
3 This case concerns Exemption Five, which, among other things, shields
4 from disclosure “documents reflecting . . . deliberations comprising part of a
5 process by which governmental decisions and policies are formulated.” U.S. Fish
6 & Wildlife Serv. v. Sierra Club, Inc., 141 S. Ct. 777, 785 (2021) (quotation marks
7 omitted). To be protected by the deliberative process privilege, a document must
8 be both predecisional, meaning that it was generated before an agency’s final
9 decision on a matter, and deliberative, meaning that it was “prepared to help the
10 agency formulate its position.” Id. at 786.
11 With this background in mind, I concur in the majority’s analysis as to the
12 four briefing documents. Because agencies continually examine and reexamine
13 their policies, I agree that a record can be predecisional if it relates either to a
14 specific decision or to a specific decisionmaking process, and the Environmental
15 Protection Agency should have the opportunity to clarify its Vaughn Index
16 entries in light of this holding.
17 I write separately, however, to address the majority’s approach to
18 messaging records. There is quite a bit of merit to the idea that messaging—that
2
1 is, how the agency chooses to communicate with people and entities outside the
2 agency—can implicate policy. As the majority notes, how an agency chooses “to
3 present its substantive policies to the public often involves the evaluation of
4 alternative public relations policies” and may even require “an analysis of the
5 underlying policy itself.” Majority Op. at 13 (quoting Seife v. Dep’t of State, 298
6 F. Supp. 3d 592, 616 (S.D.N.Y. 2018)). Where communications decisions involve
7 the “exercise of policy-oriented judgment,” Grand Cent. P’ship, Inc. v. Cuomo,
8 166 F.3d 473, 482 (2d Cir. 1999) (quotation marks omitted), the deliberative
9 process privilege may protect deliberations that directly relate to and precede
10 those decisions.
11 But not all communications decisions implicate policy in this way. See
12 New York v. U.S. Dep’t of Commerce, No. 18-CV-2921, 2018 WL 4853891, at *2
13 (S.D.N.Y. Oct. 5, 2018) (“[N]ot all ‘messaging’ decisions are so intimately bound
14 up with an agency’s central policy mission.”). Sometimes, messaging
15 communications “amount to little more than deliberations over how to spin a
16 prior decision, or merely reflect an effort to ensure that an agency’s statement is
17 consistent with its prior decision.” Id. When that is so, FOIA does not permit an
18 agency to invoke the deliberative process privilege to avoid disclosure.
3
1 The D.C. Circuit recently concluded as much in Reporters Committee for
2 Freedom of the Press v. FBI, reasoning that “documents that discuss, describe, or
3 defend an already-determined agency policy” fail to “advance the purposes of
4 the deliberative process privilege—to allow agency employees to have the
5 candid discussions necessary to make the best possible policy decisions in service
6 of the public.” 3 F.4th 350, 363–64 (D.C. Cir. 2021). The facts of Reporters
7 Committee illustrate the point. Among the documents at issue in that appeal
8 were emails discussing proposed changes to a draft letter to the editor that FBI
9 Director James Comey had written to defend the agency’s use of media
10 impersonation as an investigative tactic. The D.C. Circuit concluded that these
11 documents qualified for protection under the deliberative process privilege
12 because they contained a “back-and-forth exchange of ideas” that formed “part
13 of an internal dialogue about critical judgment calls aimed at advancing the
14 agency’s interests in the midst of a vigorous public debate about an FBI
15 undercover policy with a decidedly uncertain future at the time.” Id. at 363–4.
16 The emails, in other words, did not simply “defend an already-determined
17 agency policy.” Id. at 363. To the contrary, the FBI policy at issue was in flux:
18 The FBI was under “significant external pressure” to change its guidelines
4
1 regarding the impersonation of news media during undercover operations,
2 which it ultimately did. Id. at 363–64.
3 As Reporters Committee recognized, however, circumstances like the FBI’s
4 will not always be present when an agency communicates its policies to the
5 public. While the majority suggests otherwise, see Majority Op. at 18–19, agency
6 deliberations over how to communicate and promote existing policies can, in
7 fact, be merely a “descriptive” exercise—as, for example, when the agency seeks
8 to explain a policy decision that is truly already settled rather than in flux. In my
9 view, therefore, FOIA compels a flexible approach under which agency
10 messaging records are not always or even presumptively protected by the
11 deliberative process privilege. Although that approach hews closely to the D.C.
12 Circuit’s reasoning in Reporters Committee, I recognize that it departs from the
13 path taken in New Hampshire Right to Life v. HHS, where the First Circuit
14 referred to an agency’s “decision of how and what to communicate to the public”
15 as “a decision in and of itself.” 778 F.3d 43, 54 (1st Cir. 2015). But such a
16 categorical approach risks expanding Exemption Five so much that it swallows
17 the very purpose of FOIA.
5
1 Because agencies should not be allowed to withhold messaging documents
2 that merely “discuss, describe, or defend an already-determined agency policy,”
3 Reps. Comm., 3 F.4th at 363, I am not persuaded on the present record that the
4 EPA properly withheld the following eleven documents in this case: 401, 8309,
5 9765, 11126, 21815, 22970, 23178, 25096, 25349, 25605, and 25606. As the majority
6 asserts, the Vaughn Index entries for these records indicate that they were
7 deliberative documents “created as part of the EPA’s efforts to communicate
8 with people outside the agency about specific policies.” Majority Op. at 21. In
9 my view, that description is not enough for the records to qualify for protection
10 under the deliberative process privilege. The agency would also have had to
11 make clear that the communications involved more than merely determining
12 how to describe or spin policy decisions the agency had already made—for
13 example, by showing that the process of deciding which message to deliver was
14 both deliberative and related to a policy decision that was not finalized. Because
15 the EPA did not do so with respect to the eleven records referenced above, I
16 would vacate rather than reverse the District Court’s decision as to those records
17 and remand for the agency to provide additional explanation consistent with the
18 standard described here. Aside from its fidelity to FOIA’s language, that
6
1 standard has the added benefit of incentivizing agencies to provide more rather
2 than less information in their Vaughn Index, thus exposing agency justifications
3 to the “revealing ‘sunlight’ of public scrutiny.” Mead Data Cent., Inc. v. U.S.
4 Dep’t of Air Force, 566 F.2d 242, 259 (D.C. Cir. 1977). That itself can only further
5 promote the aims of FOIA, which “stack[s] the scales in favor of disclosure and
6 against exemption.” Id.7 For these reasons I very respectfully concur in part and dissent in part.
7