Nat. Res. Def. Council v. EPA, 19 F.4th 177 (2d Cir. 2021) (Menashi, J.)

Nat. Res. Def.  Council v. EPA, 19 F.4th 177 (2d Cir. 2021) (Menashi, J.)

Re:  Request for records concerning role of Deputy Assistant Administrator of EPA's Office of Chemical Safety and Pollution Prevention in policymaking under Toxic Substances Control Act and related pesticide matters

Disposition:  Reversing in part, vacating in part, and remanding in part district court's grant in part and denial in part of government's motion for summary judgment and denial of government's motion for partial reconsideration

• Exemption 5, Deliberative Process Privilege:  The Court of Appeals for the Second Circuit holds that "[r]ecords reflecting agency deliberations relating to and preceding a communications decision are covered by the deliberative process privilege."  The court first considers "messaging records" which include "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."  The court relates that "[the requester] 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."  The court then finds that "'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.'"  "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.'"  "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.'"  "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."  "An agency exercises policy-oriented judgment when communicating its policies 'even when [the] underlying decision or policy has already been established by the agency.'"  "Regardless of whether the agency has definitively determined the relevant policy, its decision regarding how to communicate that policy does not constitute a 'mundane,' 'standard[,] or routine' decision 'over which the agency has no significant discretion.'"  "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.'"  "Records reflecting agency deliberations relating to and preceding a communications decision are covered by the deliberative process privilege."  "[The court] agree[s] 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 outside the agency is not solely a 'descriptive' exercise."  "Rather, such communications 'can be delicate and audience-sensitive' and require the agency to 'exercise . . . policy-oriented judgment' to effectively pursue its policymaking agenda."  "The agency's communications decisions affect whether the agency will be able to 'preserve an existing policy,' . . . or will attract opposition."
  
  Applying these general principles to this case, the court then finds that "[i]n the context of a messaging record, [the court] believe[s] 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."  "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."  "Bearing this in mind, [the court] reverse[s] the district court's decision with respect to eleven of the messaging records it ordered disclosed . . . ."  "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."  "Furthermore, these entries indicate that the records reflect the views of agency staff, not the ultimate communications decision on which the EPA itself settled."  "Thus, these records are predecisional and deliberative and exempt from disclosure pursuant to the FOIA's Exemption Five and the deliberative process privilege." 
  
  "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 [the court] can ascertain the records' deliberative character."  "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."  "The seventh of these records presents a somewhat unique case."  "[It] contains 'draft suggestions and responses to [a] reporter's question' that 'do[ ] not reflect an official Agency policy or final agency action or decision.'"  "Absent any explanation in the Vaughn Index entry, [the court] 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."  "[The court] nonetheless vacate[s] the district court's order requiring the EPA to disclose these seven messaging records and remand[s] for the agency to provide additional explanation consistent with the standard [the court] describe[s] here."
  
  The court then turns to "four briefing documents" which "'are records . . . created to brief senior agency staff about various topics within the agency's purview.'"  "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.'"  The court finds that "[r]equiring 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 . . . 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,' . . . ."  "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.'"  "In light of this admonition, [the court] hold[s] 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."  "Even under the test [the court] adopt[s] today for determining whether a document is predecisional, [the court] cannot conclude on the present record that the EPA properly withheld the four briefing documents."  The court explains that "[the government's] 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, [the court] 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 [the] court regarding how a record relevant to a decisionmaking process – as opposed to a specific decision – might qualify for the deliberative process privilege."
  
  Circuit Judge Lohier, writing separately to concur in part and dissent in part, "concur[s] in the majority's analysis as to the four briefing documents."  "Because agencies continually examine and reexamine their policies, [Judge Lohier] agree[s] that a record can be predecisional if it relates either to a specific decision or to a specific decisionmaking process, and the Environmental Protection Agency should have the opportunity to clarify its Vaughn Index entries in light of this holding."  "[Judge Lohier] write[s] separately, however, to address the majority's approach to messaging records."  Judge Lohier explains that "agency deliberations over how to communicate and promote existing policies can, in fact, be merely a 'descriptive' exercise . . . ."  "In [Judge Lohier's] view, therefore, FOIA compels a flexible approach under which agency messaging records are not always or even presumptively protected by the deliberative process privilege."  "Because agencies should not be allowed to withhold messaging documents that merely 'discuss, describe, or defend an already-determined agency policy,' . . . [Judge Lohier] [is] not persuaded on the present record that the EPA properly withheld . . . eleven documents in this case . . . ."  "As the majority asserts, the Vaughn Index entries for these records indicate that they were deliberative documents 'created as part of the EPA's efforts to communicate with people outside the agency about specific policies.'"  In [Judge Lohier's] view, that description is not enough for the records to qualify for protection under the deliberative process privilege."  "The agency would also have had to make clear that the communications involved more than merely determining how to describe or spin policy decisions the agency had already made . . . ."