reasons st the eighteen messaging records issue in this case fall within the president of this court the st circuit and the d c circuit which have exempted from disclosure documents reflecting internal agency deliberations about how and what to ongoing will making st year honors the issue was whether the district court was correct in holding that decisions about how to publicly today information about an already decided agency action or policy are qualitatively the types of agency decision whose underlying deliberations don't merit protection and the district court was incorrect on the law disregard of the context in which these decisions are deliberation occur and disregarded the impact that a categor deliberations about how to convey an already decided policy would have on the quality of government decision making this court into circuit court to recognize that the deliberat what we presented the track record and messaging record because the underlying policy again the decision to grant funding to planned parenthood had already been made and the decision then facing the agency at the time those records were created was was in determining how to present or announce that policy to the public so look whether a messaging record qualifies for the privileged needs to be approached like any other record that  which policies or one get weighted so for example an agency's message can seek to improve or clarify the interpretation and understanding of agency policies and the process of creating a message can entail decisions responding to questions about how agency policies will be implemented in the particularly circumstance how they will be affecting specific stakeholders and and and questions that may not be apparent from the face of the policy questions that may not have been considered by the agency but the policy was decided and in determining how and whether to respond to these questions they do require careful thoughtful candid deliberations about the meaning and implications of the policy and again it's those deliberations that ought to be shielded both to avoid public confusion about what the agency's understanding of it don't policy is and nd to allow the subject matter experts considering these questions told us agencies are and probably should be engaged in continuing process of examining their policies the process will generate memoranda containing recommendations which do not write been in the agency decisions and a lower court should be wary of interfering with this process so how do we reconcile those does is it if there's a document that's about agency decision making process these in general or are there deliberative process in general but need there isn't a tie to a very specific identify the confrontative and deliberative process to which the particularly deliberations occurred indeed not all agency the deliberations right in until the final agency decision or action it may well be that as a deliberations the agency decides not to take action or decide not to issue a public message so i don't understand that in this case you're saying that these the briefing documents are connected to a specific decision but i guess my question is even if they weren't if it was well the agency was considering how to take into care account epidemiology evidence its decision making processes and it was going this w decision making process is so with respect to the for briefing record your honor the agency is gone at the day that's an index i think tied to the deliberations underlying the four briefing documents two ongoing role makings under the toxic substances control act that were ongoing at the time and both of these are all makings related to procedure for prioritizing chemicals for risk assessment procedures for chemical risk evaluations and the wron support a different directions and i'm wondering if you if you have a position on  that i don't think you necessarily need to tie to a specific decision it could be either a specific decision basing the agency at the time or it could relate to a specific complicated process  based on the factual record before the court which is essentially to bomb affidavits that were submitted by and authorized representatives at the agency and an extensive bond index articulating the justification subject to dispute as to for your appeal we would then be obligated to look and make it's an individualized determination with with respect to each one so i think the response to that is your honor the district court so there are elements of what the government burden is in determining and in justifying a withholding and the district court already made guess entirely hypothetical i just want to be sure that we we're not exposing ourselves to a row we might reject your maybe i mean that we might regret there may be no alternative but it i just want to be sure i understand the government's position on that hypothetical of the hypothetical but again it would really it would relate the hypothetical would relate to the contested parts of the district court's ruling with respect to those a one thousand records there may be aspects of the district court decision about the sufficiency of the gov't government by the deliberative process privilege and that's all but it just depends on the answer to that question and then there are the briefing records and the answer to whether that is protected is whether the appeal and i suppose if a district court had several different legal decisions why different buckets were not protected bolton we'd have a lot of different questions in the future case but here we just have those two buckets which means on those two legal questions approach is there a messaging record as the government describes mustering records that would be that would not be protected in other words that might be subject i'm messaging records like any other deliberate record that being the count on the basis of deliberative process privilege could be disclosed to the extent for example and again and i and i'm referring generally to all records being it's it's difficult to answer that question in the abstract your honor i think again the exceptions to withholding that would apply to any deliberative record including messaging records for certain but certainly  that deliberations about how to present an already decided policy or decision to the public are no less worthy of the deliberative process privilege protections and deliberations about how to present an agency decision or action that document i think your honor it's on the basis of the agency's gone submissions explaining what the decision was or what the decision making or complicated process was how that record zelon to that process whether it preceded any decision or conclusion of process that was already made whether that record contained the advice and now it's just an opinion to people who are not authorized to make decisions on behalf of the agency and whether their crib be reasonably forseeable harm that could result from disclosure under exemption five and messaging records would be subject to that the agencies it would be still be the power point and let's presume that the agency had been looking for you know times that as demonstratives are talking point straight to describe this already decided decision and our policy and there were deliberations about the ordering or what to emphasize what to deemphasize or what to exclude or what to include those deliberations that opinions are sort of part of the deliberative process and chaired that leading up to the final decision about how to present this decision are our policy action and to the public and the extent you know your honor hypothetical takes into account discussions about reordering things or prioritizing things you know really policy heavy judgments being made about how to explain why the agency's policies are consistent with its authorities and you can explain it broadly or narrowly you could exclude it in the context of the agency's overlord and so on so that maybe if you just when the policy has already been decided or not preparing a response to a coup aggression all questions for the record or a testimony before congress you know isn't as an exercise of anticipating what the public questions might be here what concerns people might agencies of religions and so on i mean is there any is there reason to think that the interest we talk about in terms of deliberative process for correcting those kinds of misunderstandings that really can see drafts that are leading toward the again i think these these deliberations or these graphs need to be protected in order to ensure that you know subject matter experts looking at these sort of competing text in changes are convinced that deliberative and pretty decisional to a policy oriented vision the government argues in its briefs and before the court today that every messaging decision is a decision in itself that should be protected and it asks the court to exempt every messaging record in this case even the ones that state the relevant policy decisions and that to discuss issues unrelated to policy formation make no mistake the government asks this court for a categorical ringback rule but doesn't weigh with the privileges or requirements and a categor process by which policies are formulated not always are related and the government stated the same thing in its brief not always the district court we and the government all agree on that point like any other record it attempts to withhold under the privilege the outside of that circuit the district court had permitted u p a to withhold all documents that predated announcement of its not acquiescence decision and the d c circuit vacated the district court decision and held that only records that exactly your honor right so but i guess i guess i have this question you don't deny that the communications like how do how an agency head is going to describe policy to members of congress and so on is a decision you're just saying it's not a policy decision but i public or other kinds of fora so transfer orders question whether such a record is policy oriented not necessarily and from the fact that your honor stated i would say no and we know that because decisions about how to explain it and already made policy are not privilege you know that for years we know that decision or messaging that is just support a decision already made are not policy oriented we know that from petroleum information court we know from policies there is in fact a lot of deliberation that goes on with him within the agency about how to explain its policies and how to answer inquiries from members of congress and that involves a lot of policy oriented judgments so why is it that the sort of  policy and already decided they're different and i think the case law says that those types of things are different i mean if you have an earlier draft you know the the the the agency has testimony before a member of congress that says well we adopted this policy because this or this or that reason and somebody within the agency decides well that is totally wrong and misunderstands the governing law or it misunderstands the nature of the policy and so on and then there's an internal debate over how it should be explained and justified i mean do you do you not think that there should be that the agency needs to have protections that would allow it to have candid discussions about those kinds of liberations why isn't that the same sort of deliberation  process privilege for sex well to the extent in that example the there might be a draft of a messaging record that refers to or you know contains deliberation about the underlying policy so for instance i'm just kind of going that hypothetical you know if there's a draft e mail saying you know this reporter asked why we why we decided this policy here's my draft response we decided it for x  reasons and then there's the you know somebody responds back with a need into saying oh no we why we consider it but we didn't actually you know that wasn't the reason starry night that well why it could be and that could be redacted because that actually reflects the deliberations of the underlying  say that's a congress because it's going to trigger a lot of oversight and it's going to be a big mistake and so we should talk about it or justification in terms of why if you see that discussion it's not really about why it was adopted in the st place but how to explain the policies to congress but it seems like there's a very fine line between that kind of discussion and what you've just described well i agree with your honor that that discussion is different and i don't think that that discussion is privileged you know  if the same kind of policy oriented judgment that you described in your hypothetical that nestle would be privileged i disagree your honor i mean i think that you know to the extent that the discussion only goes to how to support a policy already decided how to explain a policy already decided how to apply a policy already cited in hypothetical situations all of those there is a circuit court case law saying that those  even even even how do you how to apply you know how to apply policy so you're saying telling me that if an agency is having deliberation they've adopted some rule through a rule making and some of the agency says oh we should say can force an action over against this party because they're subject to this rule and someone else me agency responds by saying no that's not the scope of the rule that's not a regulated party under the way we directed the rule and there's a debate over whether it's worse than action should be taken against a particular a particular party you're saying that because that's an application of a policy that wouldn't be protected either you know your honor that so that felt like it would be protected because the agency is contemplating a specific decision the what the what the right when you said  describing how i need an already decided policy would apply and hypothetical factual scenarios and the d c circuit held that those records were not deliberative because there was no decision being made or policy being considered rather established policies and regulations in light of what you're after you're saying so you're saying that when what agency is deciding whether to apply to a specific party that would be protected but if they're trying to decide on you know an enforcement agenda and they're talking about different categories of parties it wouldn't be or it's like a judgment about whether there's a sufficient tie to but maybe it would be depending on the particular fact city it's a case by case analysis for each record to the extent that the agency can pinpoint any actual decision it's contemplating and it shows that a record was prepared to a dentist a liberation of reaching that decision even if the decision  ultimately not made or rejected of course that can be privilege but to the extent that an agency is just discussing how do we message how do we support how do we talk about a policy question about the exceptions to the see and then you also respond to the st sort of case by saying well we're talking about things like abortion funding it's such an incendiary topic that people would react strongly and so therefore it seems amount to a policy decision so even for messaging documents is your is your positions that the court should evaluate whether the message is closely tied them enough to the mission of the agency or whether there's enough controversy around the topic before deciding whether it's unprotected decisions that that would be enough i'm not sure you're i think it really depends the agency would need to show what and whether the agency has shown that these records you know that the material redacted or complete withheld was prepared to aid in the deliberation of a policy oriented decision  are on what you just said so i thought you said a moment ago to me that sometimes a message is decision even if it's messaging about a policy that had already been adopted would funding it's a policy we've already adopted but the way that we explain it to the public will have such consequences because it's a controversial issue that it's that how we describe it is to intimate to a policy decision i thought that you would so that that would be acceptable state the policy so for example the southern district of new york in the new york versus department of commerce case that we cite in our brief at page to give an example of exactly that the court knows that quote deliberations within the federal reserve about the timing and it's already decided policies that just has such large consequences that we're going to consider that could be a policy decision right and in particular state department it sounds like well it might not have large economy wide consequences but it's very controversial and so we need to be careful about how we describe it's that means that for messaging decisions we're always doing the inquiry about how important the announcement is and how controversial granted when it will interest you that regulates a smaller part of the world like let's say the department of education is announcing some policy that's going to start all universities that might not have calmly why the trigger but it might have dramatic effect within is deliberating over a messaging decision r c always the fight in the timing and contents of the announcements and sometimes it might have autonomy what effect in the federal reserve example sometimes it might affect the way a you know an oversight committee is a treaty agency like deciding how to describe its policies to members of congress and an oversight hearing and still in some going to affect stakeholders are going to respond to the agency but those considerations are the or the rule rather than the exception i mean i would i'm not sure what the answer is a factual question about you know what percentage of messaging decisions are popular in it or not i think the key point  is the is that yes it's correct as long as the agency actually shows that but again we don't think that the agency should be allowed you know th bite at the apple in this case  and ninety of the joint appendix that the key inquiry and determining whether messaging document is protected by the privilege is whether the draft or communications reflect deliberations d about what message would be delivered to the public about an already decided decision policy decision or whether the communications are the nature that would reveal the deliberative process underlying a not yet finalized policy decision and that distinction that dichotomy we submit so again the test should be that deliberative deliberations regarding how to convey an already decided policy to the public can be subject to the deliberative process of privileged  so it would apply to records deliberating how to present describe explain or answer questions about an already decided an already decided agency action and the district court previously decided policies that that in and of itself was quote fatal to the e p a position again because the e p a characterization of documents fell into that category of messaging records which the district court held from the district court which is that sometimes you might have a messaging decision where how and when you give the message even with a sexual already decided policy will affect the of incendiary policies or might have markets and so on and even if there's not a general rule for withholding messaging decisions you know sounds to me like opposing counsel will say anything that there might be cases where an agency is messaging decision about how and when to communicate a message would have a policy of the policy effect because of the way the public would respond or the economy would respond or something like that and that an agency could assert that but the burden would be on the agency to show that that's what was going on and it was not a different kind of messaging the citron who so what are the problems with drawing the line there i'm not sure how one would draw the line in practice i'm not privy to the deliberative process privileged to work at promoting cancer among employees there have to be clear rules and i can imagine how would be workable in practice for employees engaging in deliberations that had a message and already decided policy to consider i don't know the public reaction or the grammys or or you know the controversial or not nature nature of the policy and a again it's hard to not without understanding the context in which that message was generated i couldn't i couldn't say off the bat whether it was or was not subject to the deliberative process privilege i would say though that to the extent let's say it was a recommendation from a subordinate to an official in the subordinate it was just the personal opinions of the subordinate to stay on message whatever that means then it arguably would fall in th sure it's possible but again i think that in and of itself it's hard to discern without understanding who the speaker was what the messaging decision facing the agency was and what that recommendation and who that knew that record who made that recommendation it sounds to me like it could be but again i i don't know how about how about this some of the hypothetical so if the secretary the head of an agency is going before congress and members of congress have asked the head of the agency to exploring why the agency has adopted some kind of enforcement posture toward a regulated industry or whatever and the secretary writes an e mail that says maybe i should use this occasion to announce this or that other policy and explain that's all part of the agency wide effort to tackle some kind of a problem and then somebody else within the agency says no let's stay on message and focus on the questions i guess you would say that that would be deliberative because they're deciding how to present their agenda and explain themselves before congress but if the secretary were simply going to the agency and somebody just sent the secretary melissa's good luck stay on message maybe that would not be part of deliberati recommendation or analysis but i think the latter discussion about like well you know should i or should i not include an announcement about a quick recall a theme or should i just focus my my my the substance of my talk on on this one