NRDC v. EPA

United States Court of Appeals for the Second Circuit · 2021 · Administrative Law

Administrative LawFOIAExemption 5Deliberative Process PrivilegeFOIAExemption 5deliberative process privilegepredecisional

Facts

NRDC submitted a FOIA request to EPA in May 2017 seeking records concerning Dr. Nancy Beck's role in policymaking under the Toxic Substances Control Act and related pesticide matters. EPA identified 1,350 responsive records, released 277, and withheld others in full or in part, then prepared a Vaughn Index for 120 undisclosed records. On appeal, the dispute concerned eighteen "messaging records" reflecting internal discussions about how EPA should communicate its policies to people outside the agency and four "briefing documents" prepared to brief senior staff on topics within the agency's purview. The district court held the privilege generally did not cover messaging about already-decided policies and required a connection to a specific decision for the briefing documents.

Issue

Does the deliberative process privilege under FOIA Exemption 5 protect agency records reflecting deliberations about how to communicate agency policies to people outside the agency, including after the underlying policy has been decided? Must an agency tie a withheld record to a specific contemplated decision, or is a connection to a specific decisionmaking process enough?

Rule

The deliberative process privilege protects otherwise deliberative agency records that relate to and precede an agency's communications decision about policy because such communications decisions involve the formulation or exercise of policy-oriented judgment. In that context, a record is deliberative if it reflects discussions about what the agency should say about a policy or how to formulate that message. A record is predecisional if it relates to either a specific decision or a specific decisionmaking process and was generated before the conclusion of that decision or process.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Denver, the Mountain Basin Water Office adopted a final contamination-response policy for rural wells. Before the director testified before the Colorado legislature, staff circulated draft talking points proposing different ways to explain the policy's costs, likely public reaction, and expected compliance effects.

If a FOIA requester seeks the draft talking points, which is the best analysis under Exemption 5's deliberative process privilege?

Explanation. The majority held that an agency exercises policy-oriented judgment when deciding how to communicate its policies to Congress, the public, and other stakeholders. Records that precede that communications decision and reflect discussions about what to say or how to formulate the message are deliberative even if the underlying policy is already established. A "draft" label alone is not enough, but these facts show substantive messaging deliberation.