Natural Res. Def. Council v. U.S. Envtl. Prot. Agency

Decision Date29 November 2021
Docket NumberNo. 20-422,August Term 2020,20-422
CourtU.S. Court of Appeals — Second Circuit

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.

Before: Parker, Lohier, and Menashi, Circuit Judges.

Judge Lohier concurs in part and dissents in part in a separate opinion.

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.


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.


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 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.


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).

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 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 appeal concerns eighteen messaging records and four briefing documents.


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).


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 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.


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. , ––– U.S. ––––, 141 S. Ct. 777, 785, 209 L.Ed.2d 78 (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. , 421 U.S. 132, 150, 95 S.Ct. 1504, 44 L.Ed.2d 29 (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...

To continue reading

Request your trial
16 cases
  • Behar v. U.S. Dep't of Homeland Sec.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 8, 2022
    ......First, the records are not "agency records" subject to the FOIA. Second, even if the ... 2016) (holding that the National Security Council is not an agency subject to the FOIA because it ... conclusion in part "because it is hard for us to ‘believe Congress intended that FOIA ......
  • Seife v. U.S. Food & Drug Admin.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • August 5, 2022
    ...... of pages of documents to the FDA, an agency within defendant-appellee Department of Health ...Customs and Border Prot. , 436 F. Supp. 3d 90, 113 (D.D.C. 2019) ...Small Bus. League v. Dep't of Def. , 411 F. Supp. 3d 824, 836 (N.D. Cal. 2019) 18-19. Defendants, however, urge us to adopt the American Small Business League ... Nat. Res. Def. Council v. United States Env't Prot. Agency ......
  • Knight First Amendment Inst. at Columbia Univ. v. U.S. Citizenship & Immigration Servs.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • April 6, 2022
    ......This case requires us to determine the scope of one such exemption. ...Because DOS is a "mixed-function agency" performing both administrative and law ...C.L. Union v. U.S. Dep't of Def. , 901 F.3d 125, 133 (2d Cir. 2018), as amended ...Res". Def. Council v. U.S. E.P.A. , 19 F.4th 177, 184\xE2"......
  • Seife v. United States Food & Drug Admin.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • August 5, 2022
    ...... of pages of documents to the FDA, an agency within. defendant-appellee Department of ...Customs and Border. Prot. , 436 F.Supp.3d 90, 113 (D.D.C. 2019) (cleaned ... Small Bus. League v. Dep't of Def. , 411 F.Supp.3d. 824, 836 (N.D. Cal. 2019) 18-19. Defendants, however, urge us to adopt the American Small. Business ...Nat. Res. Def. Council v. United States Env't Prot. ......
  • Request a trial to view additional results
1 firm's commentaries
  • Ripple Effects Of Recent Discovery Decision In SEC v. Ripple Labs, Inc.?
    • United States
    • Mondaq United States
    • January 20, 2022
    ...they were prepared to help the agency formulate its position.'" Opinion,at 3 quoting Nat. Res. Def. Council v. U.S. Env't Prot. Agency, 19 F. 4th 177, 184 (2d Cir. 2021).1 The privilege will not apply to "purely factual" material not prepared to assist agency decision-makers in taking discr......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT