Sierra Club v. U.S. Fish & Wildlife Serv., No. 19-2315, 2021 WL 765727 (D.D.C. Feb. 26, 2021) (Boasberg, J.)

Sierra Club v. U.S. Fish & Wildlife Serv., No. 19-2315, 2021 WL 765727 (D.D.C. Feb. 26, 2021) (Boasberg, J.)

Re:  Request for records concerning review of Florida Key deer's place on endangered-species list

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

• Exemption 5, Deliberative Process Privilege:  The court relates that "[plaintiff's] challenge is quite narrow."  "It concedes that the produced documents are both predecisional and constitute inter-agency or intra-agency memoranda or letters, thus satisfying two of the three requirements to bring records within the exemption."  "What remains is Plaintiff's contention that three types of documents are not deliberative:  the final SSA report on the deer; the three earlier drafts of the report; and comments and 'communications identifying the existence of scientific information' relevant to the report."  Regarding the first category, the court finds that "[o]n its face, a factual scientific report, produced 'independently from any' regulatory or policy decisions . . . does not qualify as deliberative."  The court relates that "[t]he sum total of [defendant's] reasoning on this point seems to be that it views every document as a draft 'until the associated decision is published in the Federal Register,' and drafts are protected under Exemption 5."  The court finds that "[s]imple relevance to the policy-making process is not sufficient to bring a document within the ambit of Exemption 5."  Regarding the three earlier drafts of the report, the court finds that "the agency is far from in the clear here since it 'fail[s] to provide necessary contextual information about the particular decisionmaking processes to which the [draft SSA reports] contributed, and the role the [drafts] played in those processes.'"  Specifically, the court finds that "[defendant's] Vaughn entries provide little to no information as to the 'identities, positions, and job duties of any of the authors or recipients of the withheld documents' or the manner in which the documents were created – e.g., how drafters culled particular information."  Regarding the final category of documents at issue, the court finds that while "[t]he comments and communications . . . strike the Court as likely to be quintessential 'advisory opinions, recommendations, [or] deliberations' protected under Exemption 5," "[u]nfortunately for the agency, it neglects to provide the Court with specifics of what these records contain, who drafted them, and why they should be considered deliberative."  Responding to plaintiff's request for in camera inspection on this final category, the court finds that "because the Court is already requiring further analysis, it makes sense to request that Fish and Wildlife more fully address the deliberative character of these documents before resorting to the 'generally disfavored' tool of in camera review."
   
• Exemption 5, Foreseeable Harm:  The court holds that "Fish and Wildlife offers little to substantiate its claims of foreseeable harm from the disclosure of the draft reports or the communications surrounding them."  "Beyond offering the boilerplate that release in general 'would cause a chilling effect to the agency and would stifle internal communications,' . . . Defendant repeatedly contends that '[p]re-mature release would be confusing to the public' in light of the fact that the agency has not yet made a determination on the status of the deer."  "The Court remains unpersuaded that a non-specific fear of confusion suffices to meet the agency's burden."  "Should FWS wish to keep the draft SSA reports and corresponding communications confidential, the Court expects a more robust justification on this score in supplemental submissions."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  The court relates that "[a]ll Defendant offers on the matter is its conclusory assertion that it has 'carefully reviewed the responsive records on a line-by-line and page-by-page basis.'"  The court finds that "[t]hat alone will not discharge the agency's 'obligation to carry its evidentiary burden and fully explain its decisions on segregability.'"