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Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv., No. 18-0342, 2021 WL 1209221 (D.D.C. Mar. 31, 2021) (Berman Jackson, J.)


Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv., No. 18-0342, 2021 WL 1209221 (D.D.C. Mar. 31, 2021) (Berman Jackson, J.)

Re:  Requests for biological evaluations and biological opinions on certain pesticides under Endangered Species Act ("ESA")

Disposition:  Granting in part and denying in part defendants' motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment

  • Exemption 5, Deliberative Process Privilege:  The court relates that "defendants rely on the deliberative process privilege to justify their withholding of the April 2017 developmental draft biological evaluations, the draft bee data excel workbook, the October 2017 draft biological opinions, and the two-page 'Alternatives' document, stating that the contents of these documents are predecisional and deliberative in nature."  "As to the harm that would ensue if the records are released to the public, defendants emphasize the 'public confusion' that would result . . . and cite the 'chilling effect' release might have on their scientists' ability to 'freely exchang[e] and test[ ] ideas [and] methods' and 'analyz[e] preliminary results.'"  Regarding the draft biological evaluations, the court holds that these documents "are properly characterized as drafts, and therefore, they are predecisional."  "The EPA declaration outlines the full scope of considerations weighed by agency decisionmakers 'leading up to the decision to delay publication of the developmental draft [documents]' . . . ."  "Based on the declaration, it is clear that EPA scientists were still engaged in the detailed process of deciding what specific analyses to execute and include in the drafts [documents]."  "The documents are also deliberative."  "[A]s courts in this circuit have noted, decisionmaking that 'reflect[s] the collection, culling and assessment of factual information or scientific data' is of a kind that is clearly covered by the deliberative process privilege."  Also, the court finds that defendant EPA's explanation "that release of the developmental drafts [documents] would misrepresent its decision and could 'damage the Agency's ability to receive robust public review and comment of the 2020 draft [documents] that have now been released'" "satisfies defendants' obligation to particularize how release would implicate the interests protected by the deliberative process privilege."  However, the court considers "EPA['s] . . . emphasi[s] [on] the impracticability of going through the 2017 developmental draft [Biological Evaluations "BEs"] line-by-line to determine what could be released:  '[T]hese documents are not further segregable in any reasonable or meaningful way in light of their immense length (thousands of pages) and complexity.'"  The court finds that "[w]hile the Court recognizes that the agency faces a daunting task, this showing does not satisfy defendants' burdens because both the Vaughn Index and the declaration rely on blanket assertions . . . and defendants point to no FOIA precedent that authorizes the Court to relieve an agency from this obligation on the grounds that it would be too burdensome."

    Regarding the draft Bee Data Excel Workbook, the court relates that "Plaintiff's only challenge to defendants' assertion that the Workbook is a predecisional and deliberative draft used to inform EPA's future bee projects is its statement that it is 'simply a database.'"  "The Court cannot apply this formal, rather than functional, inquiry proposed by plaintiff."  "The creation of a database involves choices about what to include and how to display the information, and a draft represents an ongoing effort to apply certain methodologies and to continue evaluating underlying data, and it is usually deliberative."  "For these reasons, the spreadsheet is deliberative and was properly withheld."  Additionally, the court finds that "[b]ecause EPA outlined more than a 'generalized assertion' of foreseeable harm by explaining the specific concerns of releasing a draft excel document with staff comments that has not been reviewed for accuracy, it has permissibly withheld the Workbook."  Regarding segregability, the court notes that "[defendant] added that the Workbook is not segregable even if the staff comments were removed from the cells of the excel spreadsheet, because 'the differences in the information portrayed in this draft workbook consist largely, if not wholly, of differences in the method of explanation and organization of text, rather than differences in the underlying facts from the studies they are derived from.'"

    Regarding October 2017 FWS Draft Biological Opinions, "the Court finds the two draft biological opinions were predecisional and deliberative in nature."  The court relates that "[defendant] outlined that the withheld portions of the documents are predecisional because they were created in preparation to draft the biological opinions 'which are still under development,' and deliberative because they contain the 'thoughts, ideas and opinions of FWS staff about the draft biological opinion[s,]' including 'internal discussions . . . reflect[ing] advice, analyses, suggestions, and recommendations concerning the content of the draft product.'"  The court further relates that "Defendants' declarant responds [to plaintiff's argument] that the labeling of these documents as 'final' was not because they were ready for release back to EPA, but rather because they were the 'latest versions of the assembled draft documents.'"  "Furthermore, defendants aver that the draft biological opinions are being revised to incorporate 'additional sources of usage data for consideration in its analyses.'"  The court finds that "the two draft biological opinions – whatever they were titled – were functionally drafts because they left 'agency decisionmakers free to change their minds.'"  Regarding foreseeable harm, the court relates that "[t]he arguments regarding the foreseeable harm posed by release of the FWS draft biological opinions are nearly identical to those offered concerning the EPA's developmental draft BEs."  The court finds that "[t]his [statement] goes well beyond a merely formulaic recitation of the elements of the privilege, and defendants' decision to withhold the records will be upheld."  Finally, the court finds that "[t]he agency conducted a line-by-line review of the documents to determine whether any information was segregable, and it determined that release of a portion of the records would reveal 'the nature of the deliberative communication or itself reflect the deliberative process of compiling information deemed relevant at this preliminary stage[.]'"

    Regarding an "'alternatives'" document, the court relates that "Plaintiff does not directly challenge whether the Alternatives document is predecisional and deliberative; its dispute here is limited to whether there is foreseeable harm if the document is released."  "Because a document containing recommendations prepared for decision and review by senior leadership is 'a classic example of a deliberative document,' . . . the Court concludes that the Alternatives document is covered by the Exemption 5 deliberative process privilege."  Regarding foreseeable harm, the court finds that "[a]lthough defendants arguably could have provided more detail regarding the potential harm, 'the degree of detail necessary to substantiate a claim of foreseeable harm is context-specific.'"  "And since the document is so short, and so closely linked to the deliberations over the draft biological opinions' jeopardy determination, there is little that an additional explanation would, or could, have provided."  Finally, "[b]ased on [the fact that "[t]he Alternatives document is only two pages long, and a portion of the document has been redacted and released to plaintiff"], and the conclusion that the information in this document is of the sort protected by the deliberative process privilege, the Court concludes that the agency is entitled to a presumption that i[t] has produced the segregable portions."
Court Decision Topic(s)
District Court opinions
Exemption 5
Exemption 5, Deliberative Process Privilege
Updated November 9, 2021