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Center for Environmental Health v. Perdue

United States District Court, N.D. California

November 18, 2019

CENTER FOR ENVIRONMENTAL HEALTH, et al., Plaintiffs,
v.
SONNY PERDUE, et al., Defendants.

          DISCOVERY ORDER Re: Dkt. Nos. 91, 92, 93, 96

          Thomas S. Hixson United States Magistrate Judge.

         On January 19, 2017, the United States Department of Agriculture (“USDA”) published a final rule setting detailed standards for organically produced livestock. The Organic Livestock and Poultry Practices (“OLPP”) Rule was set to become effective on March 20, 2017, but the USDA delayed the effective date of the rule three times, before finally withdrawing it in March 2018. Plaintiffs challenge the withdrawal of that rule, arguing that the revocation is unlawful under the Organic Foods Production Act (“OFPA”) and arbitrary and capricious and unlawful under the Administrative Procedure Act (“APA”).

         “Generally, judicial review of agency action is limited to review of the record on which the administrative decision was based.” Thompson v. U.S. Dept. of Labor, 885 F.2d 551, 555 (9th Cir. 1989). The APA provides that “the court shall review the whole record or those parts of it cited by a party . . .” 5 U.S.C. § 706. In the Ninth Circuit, “[t]he ‘whole' administrative record . . . consists of all documents and materials directly or indirectly considered by agency decision-makers and includes evidence contrary to the agency's decision.” Thompson, 885 F.2d at 555 (citation and emphasis omitted). Accordingly, Judge Seeborg ordered the USDA to include internal materials in the administrative record and required it to produce a privilege log of any materials withheld based on the deliberative process privilege. ECF No. 76.

         The USDA has since produced a privilege log with 1, 025 entries. ECF No. 91-1. Plaintiffs contend the USDA has failed to segregate purely factual information from its withholdings, that the privilege log fails to provide sufficient information describing why the deliberative process privilege applies, and that even for the documents that might be deliberative, the privilege is a qualified one and Plaintiffs can overcome it. Each side has submitted for in camera review a selection of 15 documents from the privilege log. See ECF Nos. 91, 92, 93, 96.

         A. Legal Standard

         To qualify for protection under the deliberative process privilege, “a document must be both (1) predecisional or antecedent to the adoption of agency policy and (2) deliberative, meaning it must actually be related to the process by which policies are formulated.” Nat'l Wildlife Fed'n v. U.S. Forest Service, 861 F.2d 1114, 1117 (9th Cir. 1988) (citation, quotation marks and emphasis omitted). “These twin requirements recognize that the underlying purpose of this privilege is to protect[] the consultative functions of government by maintaining the confidentiality of advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated.” Id. (citation and quotation marks omitted).

         “By maintaining the confidentiality of the give-and-take that occurs among agency members in the formulation of policy, the deliberative process privilege . . . encourages frank and open discussions of ideas, and, hence, improves the decisionmaking process.” Id. (citation omitted). As the Ninth Circuit has explained, the privilege “prevent[s] the disruption of a free flow of ideas, opinions, advice and frank discussions within agencies concerning their policies and programs. In furtherance of this objective the courts have allowed the government to withhold memoranda containing advice, opinions, recommendations and subjective analysis.” Id. (citations omitted).

         “Given the underlying purpose of this privilege, it is no surprise that [f]actual material that does not reveal the deliberative process is not protected by this exemption.” Id. (citation omitted). Nonetheless, “in a complicated case . . . a better analytical tool than merely determining whether the material itself was essentially deliberative or factual should be used: we should focus on whether the document in question is a part of the deliberative process.” Id. at 1118 (citation omitted, emphasis original). “Hence, even if the content of a document is factual, if disclosure of the document would expose the decision-making process itself to public scrutiny by revealing the agency's evaluation and analysis of the multitudinous facts, the document would nonetheless be exempt from disclosure.” Id. (citation omitted). “In other words, the document is considered to be part of the deliberative process as long as it is actually . . . related to the process by which policies are formulated.” Id. (citation omitted, emphasis original). “Accordingly, the deliberative process privilege has been held to cover all recommendations, draft documents, proposals, suggestions and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency, as well as documents which would inaccurately reflect or prematurely disclose the views of the agency.” Id. at 1118-19 (citation omitted).

         Further, “[t]he deliberative process privilege is a qualified one. A litigant may obtain deliberative materials if his or her need for the materials and the need for accurate fact-finding override the government's interest in non-disclosure.” FTC v. Warner Commc'ns Inc., 742 F.2d 1156, 1161 (9th Cir. 1984). “Among the factors to be considered in making this determination are: 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.

         The APA requires “a thorough, probing, in-depth review” of an agency decision to determine whether it was arbitrary and capricious, an abuse of discretion or otherwise not in accordance with law. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-16 (1971). “Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). “The reviewing court should not attempt itself to make up for such deficiencies: We may not supply a reasoned basis for the agency's action that the agency itself has not given.” Id. (citation and quotation marks omitted).

         Without doubt, “[t]here is a tension between the court's duty to consider whether the decision was based on a consideration of the relevant factors, on the one hand, and a privilege that protects from disclosure deliberative documents reflecting the factors the agency considered in making its decision.” Desert Survivors v. U.S. Dep't of Labor, 231 F.Supp.3d 368, 382 (N.D. Cal. 2017). “There can be no doubt that under some circumstances, pre-decisional deliberative communications may go to the heart of the question of whether an agency action was arbitrary and capricious, an abuse of discretion or otherwise inconsistent with the law under Section 706(2) of the APA.” Id.

         However, “the appropriate way to address these circumstances is through in camera review and a rigorous application of the balancing test set forth in Warner rather than rejecting the application of the privilege altogether in cases involving APA record review.” Id. at 382-83. First, it is unclear “that the APA's ‘whole record' requirement, as interpreted by the federal courts, is necessarily inconsistent with the assertion of the deliberative process privilege. In particular, it is apparent from the case law that the phrase ‘whole record' is a term of art that under some circumstances, at least, does not extend to privileged communications.” Id. at 383. “Second, federal courts, including the Ninth Circuit, have accepted the general premise that forced disclosure of predecisional deliberative communications can have an adverse impact on government decision-making.” Id. This concern “appears to be no less salient when disclosures are required in APA record review cases than in other contexts.” Id.

         Further, the balancing test set forth in Warner provides appropriate guidance for determining when the qualified privileged has been overcome. The first factor is relevance. Documents that are “relatively polished” or that critique and analyze proposed agency action are more likely to be relevant. See id. at 384. The second Warner factor - the availability of other evidence - may depend on whether the content of the withheld documents is available to the plaintiffs elsewhere in the administrative record. See id. at 384-85. The third Warner factor - the nature of the government's role in the litigation - will normally tip against the government in an APA case where the government is the defendant whose actions are being challenged. See id. at 385. “Finally, the fourth Warner factor, which asks whether the disclosure of a document or communication is likely to have a chilling effect, need not give rise to a uniform answer.” Id. “[T]he disclosure of some types of documents will be less likely to cause embarrassment or chilling than others.” Id. The disclosure of preliminary drafts is “not likely to chill speech, even though such documents might be used to recreate the course of the decisionmaking process because [t]hese are relatively polished drafts, and the recreation of the decisionmaking process should in no way embarrass the agencies.” Id. (citation and quotation marks omitted). “On the other hand, ” disclosure of preliminary staff views or tentative opinions “might chill speech.” Id. (citation and quotation marks omitted). “These documents represent the give-and-take of the agencies' internal deliberations, and their disclosure would discourage such deliberations.” Id. at 386 (citation omitted).

         “In sum . . . the deliberative process privilege is available in APA cases but because it is a qualified privilege, courts must look to the specific circumstances, applying the approach set forth in Warner, to determine whether the privilege should be upheld as to particular documents and communications.” Id. (emphasis omitted).

         B. Plaintiffs' Documents

         With this background, the Court now turns to the documents that Plaintiffs have selected for in camera review. The Court's discussion of each document is ...


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