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Desert Survivors v. US Department of Interior

United States District Court, N.D. California

May 1, 2017

DESERT SURVIVORS, et al., Plaintiffs,


          JOSEPH C. SPERO Chief Magistrate Judge.


         Plaintiffs have brought a Motion to Complete the Administrative Record (“Motion”) in which they ask the Court to compel production of documents that have been withheld by the United States under the deliberative processes privilege. In its February 6, 2017 Order (“the February 6, 2017 Order”), the Court ruled on some of the legal disputes between the parties relating to the application of the privilege to the documents at issue in this case. Here, the Court addresses ten specific documents that Plaintiffs have selected for in camera review to determine whether they may be withheld under the deliberative processes privilege. While the Court rules only on the selected documents, it is the Court's expectation that the reasoning set forth herein will be applied by the parties to resolve their dispute as to the remaining documents that are at issue.[1]


         In the Court's February 6, 2017 Order, it rejected Plaintiffs' argument that as a general matter, the deliberative processes privilege is unavailable in cases like this one involving a challenge to agency action under Section 706(2) of the Administrative Procedures Act (“APA”). Instead, the Court found that such documents are subject to the balancing test set forth in F.T.C. v. Warner Communications Inc., 742 F.2d 1156, 1159 (9th Cir. 1984), which sets forth various factors courts should considering in determining whether the need for disclosure of deliberative materials to allow for accurate fact-finding outweighs the government's interest in nondisclosure. The Court ordered Defendants to provide a more detailed description of the withheld documents in an amended privilege log (“Amended Privilege Log”) and to identify which of the four categories identified in the November 15, 2016 Declaration of Gina M. Schultz (“Schultz Decl.”) each document falls into.[2] See Schultz Decl. ¶ 6. Plaintiffs selected the following ten documents listed on the Amended Privilege Log for in camera review by the Court: PRIV000287 (Category IV), PRIV000289 (Category IV), PRIV000290 (Category IV), PRIV000293 (Category IV), PRIV000295 (Category IV), PRIV000964 (Category II), PRIV000966 (Category II), PRIV001110 (Category I), PRIV001590 (Category I), PRIV001771 (Category I). See Defendants' Notice Regarding Administrative Record-Related Submissions, Ex. 1 (Amended Privilege Log) & 3 (List of Withheld Documents According to Category).

         III. ANALYSIS

         A. Legal Standard[3]

         The deliberative process privilege is a common law privilege, but “[f]ederal courts regularly apply FOIA precedent when interpreting the deliberative process privilege” because that privilege has been incorporated into FOIA in Exemption 5, which “permits nondisclosure of 'inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.'''Nw. Envtl. Advocates v. U.S. E.P.A., No. CIV 05-1876-HA, 2009 WL 349732, at *3 (D. Or. Feb. 11, 2009) (quoting 5 U.S.C. § 552(b)(5)). To qualify for protection under the deliberative process privilege, a document must be both (1) “predecisional, ” that is, “generated before to the adoption of agency's policy or decision” and (2) “deliberative, ” meaning that it contains opinions, recommendations or advice about agency policies. FTC v. Warner Communications, Inc., 742 F.2d 1156, 1161 (9th Cir. 1984) (citing Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 866 (D.C.Cir.1980)). The privilege does not cover “[p]urely factual material that does not reflect the deliberative process.” Id. (citation omitted). On the other hand, the privilege applies where the “factual material is so interwoven with the deliberative material that it is not severable.” Id. (citing Binion v. Department of Justice, 695 F.2d 1189, 1193 (9th Cir. 1983)).

         In Coastal States, the court described the purposes of the deliberative process privilege as follows:

The privilege has a number of purposes: it serves to assure that subordinates within an agency will feel free to provide the decisionmaker with their uninhibited opinions and recommendations without fear of later being subject to public ridicule or criticism; to protect against premature disclosure of proposed policies before they have been finally formulated or adopted; and to protect against confusing the issues and misleading the public by dissemination of documents suggesting reasons and rationales for a course of action which were not in fact the ultimate reasons for the agency's action.

Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980).

         The deliberative process privilege is a qualified privilege. Warner, 742 F.2d at 1161. Thus, a party may obtain disclosure of deliberative materials if it can establish that the need for the materials to allow for accurate fact-finding outweighs the government's interest in non-disclosure. Id. (citing United States v. Leggett & Platt, Inc., 542 F.2d 655, 658 (6th Cir.1976), cert. denied, 430 U.S. 945 (1977); United States v. American Telephone and Telegraph Co., 524 F.Supp. 1381, 1386 n. 14 (D.D.C.1981)). The Ninth Circuit in Warner set forth four non-exclusive factors that may be considered in determining whether the litigant has met this requirement: “1) the relevance of the evidence; 2) the availability of other evidence; 3) the government's role in the litigation; and 4) the extent to which disclosure would hinder frank and independent discussion regarding contemplated policies and decisions.” Id. (citations omitted). “Other factors that a court may consider include: (5) the interest of the litigant, and ultimately society, in accurate judicial fact finding, (6) the seriousness of the litigation and the issues involved, (7) the presence of issues concerning alleged governmental misconduct, and (8) the federal interest in the enforcement of federal law.” N. Pacifica, LLC v. City of Pacifica, 274 F.Supp.2d 1118, 1122 (N.D. Cal. 2003).

         B. Whether the Withheld Documents are Deliberative[4]

         The parties disagree on the question of whether these documents are “deliberative” in the first instance. Plaintiffs contend they are not, citing descriptions in the amended privilege log that they contend show that these documents do not reveal the mental processes of any decision-maker. Defendants argue that Plaintiffs construe the “deliberative” requirement too narrowly, improperly reading into it a requirement that the document must be linked to a particular decision-maker when the relevant question is instead whether the document is part of the deliberative process.[5] The Court agrees with the United States that a document may be deliberative even if it does not directly reveal the mental processes of a particular decision-maker.

         “The key to the inquiry is whether revealing the information exposes the deliberative process.” Assembly of State of Cal. v. U.S. Dep't of Commerce, 968 F.2d 916, 921 (9th Cir. 1992), as amended on denial of reh'g (Sept. 17, 1992) (citation omitted). In Assembly of State of California, the court explained that typically, factual material is not deliberative whereas materials containing preliminary opinions are more likely to reveal the deliberative process. Id. at 921-922. Thus, in that case, the court of appeals upheld the district court's ruling that computer tapes containing statistically adjusted figures from the 1990 census were not “deliberative” and had to be produced. Id. at 922. Consistent with the Supreme Court's caution against the “wooden application” of the fact/opinion distinction, however, the court did not rule out the possibility that data of the sort contained on the tapes might be deliberative if it could be used to glean information about the judgment of the Secretary as to the proper approach to adjusting census data to reflect undercounting that had not already been disclosed. Id. (quoting EPA v. Mink, 410 U.S. 73, 93 (1972)). Instead, it found that under the facts of that case, “release of the adjusted block-level data would not enable the public to reconstruct any of the protected deliberative process.” Id. at 923.

         Similarly, in Petroleum Info. Corp. v. U.S. Dep't of Interior, also cited by Plaintiffs, the focus of the inquiry was whether factual material that had been withheld under the deliberative process privilege was “deliberative.” 976 F.2d 1429 (D.C. Cir. 1992). Addressing this question, the court set forth the following standards for determining whether material is deliberative:

To the extent that predecisional materials, even if “factual” in form, reflect an agency's preliminary positions or ruminations about how to exercise discretion on some policy matter, they are protected under Exemption 5. Conversely, when material could not reasonably be said to reveal an agency's or official's mode of formulating or exercising policy-implicating judgment, the deliberative process privilege is inapplicable. See Playboy Enterprises v. Department of Justice, 677 F.2d 931, 935 (D.C.Cir.1982) (holding that fact report was not within privilege because compilers' mission was simply “to investigate the facts, ” and because report was not “intertwined with the policy-making process”) (quoting district court); see also Pacific Molasses Co. v. NLRB, 577 F.2d 1172, 1183 (5th Cir.1978) (holding privilege inapplicable to “mechanically compiled statistical report which contains no subjective conclusions”).

Id. at 1435. Applying that standard, the court went on to hold that records from a computer data bank containing information on public lands (“Legal Lands Description file” or “LLD” file) were not deliberative, rejecting the assertion by the Bureau of Land Management that the data was deliberative because it was provisional and might also reflect changes and revisions made by the agency to the publicly available information it had used create the LLD file. Id. at 1436.

         Plaintiffs' reliance on these cases in support of their assertion that the selected documents in this case are not deliberative is not persuasive because the materials at issue here, as opposed to those at issue in the cases discussed above, contain the opinions of staff at FWS and NMFS (as well as staff from other agencies with a stake in the SPR Policy), about the pros and cons of the proposed policy. The Court therefore concludes that the ten documents selected by Plaintiffs for review are “deliberative” for the purposes of the deliberative processes privilege.

         C. Rulings on Documents

         1. Category I Documents (PRIV001110, PRIV001590, PRIV001771)

         The United States describes Category I documents as “discussions and deliberations of the core FWS and NMFS 'SPR Team.'''Schultz Decl. ¶ 6. Schultz explains in her declaration:

The SPR Team consisted of FWS and NMFS staff, as well as attorneys from DOI's Office of the Solicitor (primarily Ben Jesup, though other Office of the Solicitor attorneys also provided comment and insight) and NOAA's Office of General Counsel (primarily Ruth Ann Lowery, though other Office of General Counsel attorneys also provided comment and insight). These documents include pre-decisional briefing papers, recommendations, and other materials used by the SPR Team to generate candid discussion among the SPR Team members.

Id. ¶ 7. Based on its review of the three selected documents, along with the information contained in the Amended Privilege Log, the Court finds that PRIV001771 is subject to disclosure whereas PRIV001110 and PRIV001590 are not.

         a. PRIV001110

         According to the Amended Privilege Log, “[t]his document contains Bridget Fahey's opinions on the draft conceptual outline of the policy regarding whether a species can be endangered in an SPR and [threatened] throughout the range, the relevant case law, the threshold for significant, the relationship of DPS and SPR and the policy's application to other provisions of the Act.” Dkt. No. 89-1 at 10. As the draft policy is already publicly available, see Dkt. No. 92 at 16, ...

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