20-422

NRDC v. EPA

In the

United States Court of Appeals

FOR THE SECOND CIRCUIT

AUGUST TERM 2020

No. 20-422

NATURAL RESOURCES DEFENSE COUNCIL,

Plaintiff-Appellee,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Defendant-Appellant.

On Appeal from the United States District Court 

for the Southern District of New York

ARGUED: FEBRUARY 10, 2021

DECIDED: NOVEMBER 29, 2021

Before: PARKER, LOHIER, and MENASHI, Circuit Judges.

The U.S. Environmental Protection Agency (“EPA”) appeals an 

order entered by the U.S. District Court for the Southern District of 

New York (Furman, J.). The district court ordered the EPA to disclose 

twenty-eight records pursuant to a Freedom of Information Act 

(“FOIA”) request submitted by the Natural Resources Defense 
2

Council. The EPA argues that twenty-two of these records are exempt 

from FOIA disclosure pursuant to the FOIA’s Exemption Five, which 

incorporates the deliberative process privilege. This appeal presents 

the questions of whether records reflecting an agency’s discussions 

about how to communicate its policies to people outside the agency 

qualify for the deliberative process privilege and whether an agency 

must connect a record to a specific contemplated agency decision to 

claim the privilege. We conclude that the deliberative process 

privilege protects otherwise deliberative records that relate to and 

precede an agency’s communications decision about a policy. In the 

context of a communications decision, a record is deliberative if it 

reflects discussions about how to communicate the agency’s policies 

to the public or to other stakeholders. Additionally, we hold that an 

agency may invoke the deliberative process privilege by connecting a

record either to a specific decision or to a specific decisionmaking 

process. Applying these conclusions to the records at issue in this 

appeal, we REVERSE in part, VACATE in part, and REMAND for 

further proceedings consistent with this opinion.

Judge Lohier concurs in part and dissents in part in a separate 

opinion.

RACHEL L. FRIED (David C. Vladeck, on the brief),

Georgetown University Law Center Civil Litigation 

Clinic, Washington, DC, for Plaintiff-Appellee.

TOMOKO ONOZAWA (Benjamin H. Torrance, on the brief),

Assistant United States Attorney, for Damian Williams, 

United States Attorney for the Southern District of New 

York, New York, NY, for Defendant-Appellant.
3

MENASHI, Circuit Judge:

This case presents two questions regarding the scope of the 

deliberative process privilege. First, whether agency records

reflecting deliberations about how to communicate the agency’s 

policies to people outside the agency “bear on the formulation or 

exercise of policy-oriented judgment” such that those records qualify 

for the protection of the deliberative process privilege. Grand Cent. 

P'ship, Inc. v. Cuomo, 166 F.3d 473, 482 (2d Cir. 1999). Second, whether 

an agency record must relate to a discrete decision facing the agency 

in order to merit protection under the deliberative process privilege. 

Our answers are yes and no, respectively. An agency exercises 

“policy-oriented judgment” when deciding how to communicate its 

policies, and the deliberative process privilege therefore protects 

otherwise deliberative agency records that relate to and precede the 

agency’s final communications decision. Additionally, an agency may 

invoke the deliberative process privilege by connecting a record

either to a specific decision or to a specific decisionmaking process.

BACKGROUND

The dispute here arises from the efforts of the Natural 

Resources Defense Council (“NRDC”) to obtain certain records from 

the U.S. Environmental Protection Agency (“EPA”) through a request 

made pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. 

§ 552.

I

The NRDC submitted a FOIA request to the EPA in May 2017. 

The request sought records concerning the activities of Dr. Nancy 

Beck, then the Deputy Assistant Administrator of the EPA’s Office of 
4

Chemical Safety and Pollution Prevention. The NRDC wanted 

information about Beck’s role in policymaking under the Toxic 

Substances Control Act (“TSCA”) and related pesticide matters. 

The EPA did not disclose the requested records by the statutory

deadline, so the NRDC filed this lawsuit to compel disclosure. In 

response, the EPA agreed to search for records relating to the NRDC’s 

request and identified 1,350 such records. The EPA released 277 of 

these records but withheld the rest, either in full or in part, on the 

ground that those records were exempt from FOIA disclosure. The 

parties then agreed that the EPA would prepare a Vaughn Index 

describing 120 of the undisclosed records and justifying the EPA’s 

nondisclosure decisions. With the Index prepared and filed, the EPA 

moved for summary judgment. The district court granted the EPA’s 

motion in part, denied it in part, and ordered the EPA to produce 

twenty-eight of the records identified in the Vaughn Index. See Nat. 

Res. Def. Council v. EPA (NRDC I), No. 17-CV-5928, 2019 WL 4142725, 

at *1 (S.D.N.Y. Aug. 30, 2019). After the district court denied the EPA’s 

subsequent motion for reconsideration, see Nat. Res. Def. Council v. 

EPA (NRDC II), No. 17-CV-5928, 2019 WL 6467497 (S.D.N.Y. Dec. 2, 

2019), the EPA timely appealed. 

II

In this appeal, the EPA challenges the district court’s decision 

that the deliberative process privilege—incorporated into the FOIA’s 

Exemption Five, 5 U.S.C. § 552(b)(5)—does not apply to twenty-two 

of the documents that the district court ordered the EPA to disclose. 

The parties, and the district court, separate these documents into two 

categories: “messaging records” and “briefing documents.” NRDC I,

2019 WL 4142725, at *7, *10 (internal quotation marks omitted). 
5

The messaging records “reflect[] internal deliberations by

[agency] staff about how the agency should communicate its policies 

to people outside the agency.” Id. at *8. The district court, consistent 

with its decision in an earlier case, held that such records “can be 

protected by the deliberative process privilege” but only when the 

records “reveal the deliberative process underlying a not-yet-finalized

policy decision.” Id. at *8-9 (emphasis in original) (quoting New York 

v. U.S. Dep't of Commerce, No. 18-CV-2921, 2018 WL 4853891, at *2 

(S.D.N.Y. Oct. 5, 2018)). The district court further held that the 

privilege generally does not protect a messaging record that, in 

contrast, “merely reflect[s] deliberations about what message should 

be delivered to the public about an already-decided policy decision.” Id. 

at *9 (emphasis in original) (quoting New York, 2018 WL 4853891, at 

*3).1 Applying this test to seventeen of the documents at issue in this 

appeal, the district court held that the EPA failed to justify its 

nondisclosure decision because the EPA’s Vaughn Index did not 

indicate that those messaging records “would reveal the deliberative 

1 The district court provided a narrow exception to this rule, holding that 

the privilege would apply to a messaging record relating to “an alreadydecided policy decision” if the agency’s communications decision 

constituted an “exercise[] of [the agency’s] ‘essential policymaking role’ in 

and of [itself].” NRDC I, 2019 WL 4142725, at *8, *10 (quoting New York, 2018 

WL 4853891, at *3). The district court did not apply this exception to the 

case, nor did it explain how it would determine whether a communications 

decision falls within an agency’s “essential policymaking role.” Id. at *9. In 

its earlier decision announcing the exception, the district court explained 

the exception by way of example, indicating that it would apply to records 

reflecting “deliberations within the Federal Reserve about the timing and 

content of a policy announcement” regarding an already-decided policy. 

New York, 2018 WL 4853891, at *2.
6

process underlying a not-yet-finalized policy decision.” Id. at *9 n.6

(alterations omitted). 

The briefing documents “are records ... created to brief senior

agency staff about various topics within the agency’s purview.” Id. at 

*11. When analyzing whether the deliberative process privilege 

applied to these records, the district court was guided by language in 

our precedents indicating that the privilege applies only to records 

that both “relate to a specific decision facing the agency” and “formed 

an essential link in a specified consultative process.” Id. (citation and

alteration omitted) (quoting Tigue v. DOJ, 312 F.3d 70, 80 (2d Cir. 

2002), and Grand Cent. P'ship, 166 F.3d at 482). The district court 

concluded that the four briefing documents at issue in this appeal 

failed to meet those criteria. Id.

The district court did not analyze the final record disputed in 

this appeal—“a draft agenda for a[n agency] ... meeting” with 

members of the public—as either a messaging record or a briefing 

document. Id. at *13; see J. App’x 162-63. Upon our review of the

Vaughn Index entry for this record, we accept the EPA’s 

characterization of this document as a messaging record.2 Thus, this 

2 The NRDC argues that the EPA waived its ability to characterize this 

record as a messaging record because the district court did not classify it as 

such in its opinion and the EPA failed to include this record in its motion 

for reconsideration before the district court. The EPA’s Vaughn Index, 

however, characterized this record in a manner resembling its

characterization of the other messaging records disputed here. That the 

district court thought this record was better characterized under a different 

heading does not force the EPA to forfeit its argument that it properly 

refused to disclose this record because it reflects deliberations about how 

the agency should communicate its policies to people outside the agency. 
7

appeal concerns eighteen messaging records and four briefing 

documents.

STANDARD OF REVIEW

We review the district court’s summary judgment decision de 

novo. Ctr. for Constitutional Rights v. CIA, 765 F.3d 161, 166 (2d Cir. 

2014). “[T]he defending agency has the burden of showing that ... any 

withheld documents fall within an exemption to the FOIA.” Carney v. 

DOJ, 19 F.3d 807, 812 (2d Cir. 1994). At the same time, we “accord[] a 

presumption of good faith” to an agency’s “[a]ffidavits or 

declarations,” id., and when an agency provides “reasonably detailed 

explanations” to support its decision to withhold a document, its 

“justification is sufficient if it appears logical and plausible,” ACLU v. 

DOD, 901 F.3d 125, 133 (2d Cir. 2018).

DISCUSSION

The district court’s decision to order the EPA to disclose the 

disputed documents pursuant to the NRDC’s FOIA request raises two 

independent issues regarding the scope of the deliberative process 

privilege. 3 First, whether the privilege applies to “messaging 

Furthermore, a party’s failure to include an argument in a motion for 

reconsideration does not render that argument waived on appeal when the

party made the argument to the district court before the court issued the 

judgment that is being appealed. See United States v. Harrell, 268 F.3d 141, 

146 (2d Cir. 2001) (holding that an argument is not waived “if it was 

‘pressed or passed upon below’”) (quoting United States v. Williams, 504 U.S. 

36, 41 (1992)).

3 The decision ordering disclosure took the form of a partial denial of 

summary judgment. See NRDC I, 2019 WL 4142725, at *16. Although such 

decisions are generally considered non-final and therefore are not 
8

records,” that is, records relating to an agency’s decision about how 

to communicate its policies to people outside the agency, and, if the 

privilege can apply, whether it makes a difference if the messaging

record relates to a finalized policy or to one not yet conclusively 

determined. Second, when it comes to documents (such as the 

briefing documents in the case) that discuss an agency’s ongoing 

activities and practices, whether those documents can qualify for the 

deliberative process privilege even if the information contained 

therein does not relate to a discrete decision facing the agency. 

I

The “FOIA mandates the disclosure of documents held by a 

federal agency unless the documents fall within one of nine 

enumerated exemptions.” U.S. Fish & Wildlife Serv. v. Sierra Club, Inc., 

141 S. Ct. 777, 785 (2021); see 5 U.S.C. § 552. The FOIA’s Exemption 

Five excepts from disclosure “inter-agency or intra-agency 

memorandums or letters that would not be available by law to a party 

other than an agency in litigation with the agency.” 5 U.S.C. 

§ 552(b)(5). “[T]his exemption incorporates ... the deliberative process 

privilege, attorney-client privilege, and attorney work-product 

privilege.” Sierra Club, 141 S. Ct. at 785. 

This case concerns the deliberative process privilege. “[T]he 

deliberative process privilege shields from disclosure ‘documents 

reflecting advisory opinions, recommendations and deliberations 

comprising part of a process by which governmental decisions and 

policies are formulated.’” Id. (quoting NLRB v. Sears, Roebuck & Co., 

appealable, we have held that “partial disclosure orders in FOIA cases are 

appealable.” Ferguson v. FBI, 957 F.2d 1059, 1063 (2d Cir. 1992).
9

421 U.S. 132, 150 (1975)). The privilege “encourage[s] candor, which 

improves agency decisionmaking,” by “blunt[ing] the chilling effect 

that accompanies the prospect of disclosure.” Id.4 Consistent with the 

rationale underlying the deliberative process privilege, it applies only 

to “predecisional, deliberative documents.” Sierra Club, 141 S. Ct. at 

785. Generally, “[d]ocuments are ‘predecisional’ if they were 

generated before the agency’s final decision on [a] matter, and they 

are ‘deliberative’ if they were prepared to help the agency formulate 

its position.” Id. at 786.

The “predecisional” requirement excludes a document that 

“reflects the consummation of the agency’s decisionmaking process 

and not a merely tentative position.” Id. (internal quotation marks 

omitted). Still, a document may qualify for protection even when 

“nothing else follows it.” Id. “Sometimes a proposal dies on the vine”

and “documents discussing such dead-end ideas can hardly be 

described as reflecting the agency’s chosen course.” Id. Similarly, the 

Supreme Court has cautioned that its “emphasis on the need to 

protect pre-decisional documents does not mean that the existence of 

4 We have further explained that the deliberative process privilege also 

“protect[s] against premature disclosure of proposed policies before they 

have been finally formulated or adopted” and “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.” Grand Cent. P'ship, 166 F.3d at 481 

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

Cir. 1980)). Still, “[t]he key question we keep in mind when assessing the 

application of the deliberative process privilege to an agency record is 

whether disclosure would tend to diminish candor within an agency.” Nat. 

Res. Def. Council v. EPA, 954 F.3d 150, 158 (2d Cir. 2020) (internal quotation 

marks omitted).
10

the privilege turns on the ability of an agency to identify a specific 

decision in connection with which a memorandum is prepared” and 

that “courts should be wary of interfering with” an agency’s

“continuing process of examining [its] policies.” Sears, Roebuck & Co.,

421 U.S. at 151 n.18. To determine whether a document is 

“deliberative,” we determine whether the document was “prepared 

to help the agency formulate its position,” Sierra Club, 141 S. Ct. at 786, 

by analyzing “if it reflects the give-and-take of the consultative 

process,” Nat. Res. Def. Council, 954 F.3d at 156.

Not every decision made within an agency will entail the kind 

of “consultative process” the deliberative process privilege is 

designed to protect. Our precedents have established that the 

deliberative process privilege protects only those records that “bear 

on the formulation or exercise of policy-oriented judgment.” Grand 

Cent. P'ship, 166 F.3d at 482. As then-Judge Ginsburg explained when 

formulating this “policy-oriented judgment” proviso, “homing in on, 

and sheltering material implicating officials’ exercise of judgment 

about policy matters secures the internal agency give-and-take” that 

the deliberative process privilege is “meant to protect” and “helps us 

answer the key question in these cases: whether disclosure would 

tend to diminish candor within an agency.” Petrol. Info. Corp. v. U.S. 

Dep't of Interior, 976 F.2d 1429, 1435 (D.C. Cir. 1992) (R.B. Ginsburg, J.) 

(internal quotation marks omitted). This concern with “diminish[ing] 

officials’ candor or otherwise injur[ing] the quality of agency 

decisions” arises when an agency is compelled to disclose “materials

[that] can reasonably be said to embody an agency’s policy-informed 

or -informing judgmental process” or its “mode of formulating or 

exercising policy-implicating judgment.” Id. at 1435-36. By contrast, 

“[t]he release of materials that do not embody agency judgments—for 
11

example, materials relating to standard or routine computations or 

measurements over which the agency has no significant discretion—

is unlikely to diminish officials’ candor or otherwise injure the quality 

of agency decisions.” Id. at 1436. For that reason, courts need not be 

concerned that “[r]equiring disclosure of such materials” would 

disturb “efficient government operation.” Id.

II

Applying these principles to the case at hand, we first consider 

the messaging records. These records “reflect[] internal deliberations 

by [agency] staff about how the agency should communicate its 

policies to people outside the agency.” NRDC I, 2019 WL 4142725, at 

*8. Included in these records are draft talking points prepared for 

senior agency staff about agency policies and internal discussions and 

draft responses relating to inquiries from the press and from members 

of Congress. Id. at *8-9. 

A

The NRDC does not dispute that the messaging records “were 

generated before the agency’s final decision” regarding how to 

communicate and are thus “predecisional” with respect to those 

communications decisions. Sierra Club, 141 S. Ct. at 786. Rather, the 

NRDC argues that an agency’s decision about how to communicate 

its policies to people outside the agency does not generally involve

the “formulation or exercise of policy-oriented judgment” and the 

deliberative process privilege therefore does not protect the EPA’s 

internal discussions about how to formulate those communications. 

Grand Cent. P'ship, 166 F.3d at 482. We disagree. 
12

An agency’s decision regarding how to communicate its 

policies and actions to Congress, the public, and other stakeholders 

can have substantial consequences.5 A poor communications decision 

at a congressional hearing might mean the difference between 

receiving the agency’s requested budgetary appropriation, on the one 

hand, or inviting intrusive oversight hearings into agency operations, 

on the other. Communications with the press, industry members, and 

the public have similarly high stakes. An agency might attract public 

support that it can leverage to pursue its policy agenda or invite a 

backlash that would undermine that agenda. If an agency seeks to 

shape conduct through its policies, it must take care to explain those 

policies in ways that will elicit compliance.6 As it pursues its policy 

agenda, moreover, the agency must maintain consistency with the 

explanations it has previously provided or else risk losing credibility. 

5 See, e.g., William E. Kovacic, Creating A Respected Brand: How Regulatory 

Agencies Signal Quality, 22 Geo. Mason L. Rev. 237, 237-41 (2015) (observing 

that an agency’s reputation is crucial to its “effectiveness,” including its 

ability to obtain deference from judges, legislators, and public regulators, 

as well as its attempt to “build[] credibility with the general public, 

advocacy groups, universities, the media, professional societies, trade 

associations, and individual businesses”); id. at 243-44 (explaining that 

“[e]ach of an agency’s public statements” about its “[a]ims and 

[a]ctivities”—whether the statement comes “by means of a decision in a 

case, a report, a guideline, a speech, or testimony before a government 

body”—builds the agency’s reputation and that “achieving coherence in 

public expressions” can sometimes be “difficult”).

6 See, e.g., Milton Russell, Risk Communication: Informing Public Opinion, EPA 

J., Nov. 1987, at 20, 20-21 (“[W]hen it comes to protecting health and the

environment, it is public, not expert, opinion that counts. ... The challenge 

of risk communication is to provide this information in ways that it can be 

incorporated in the views of common citizens who have little time or 

patience for arcane scientific discourse.”).
13

See Russell v. Dep’t of the Air Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982)

(noting that an agency “must stand by” its “official statement[s] ... in 

the public forum, and ... perhaps in the judicial forum as well”).

Given these considerations, “an agency’s decision regarding 

how to present its substantive policies to the public often involves the 

evaluation of alternative public relations policies, policies which by 

their very nature are audience-sensitive and must anticipate public 

reaction.” Seife v. Dep’t of State, 298 F. Supp. 3d 592, 616 (S.D.N.Y. 

2018). Indeed, “the decision of how, and to what extent, to convey that 

policy to the public may require input by many working components 

within the agency, or even an analysis of the underlying policy itself.” 

Id. Thus, an agency’s communications decisions necessarily implicate

the agency’s policies and must be informed by those policies. Those 

decisions involve “the formulation or exercise of policy-oriented 

judgment.” Grand Cent. P'ship, 166 F.3d at 482; see Petrol. Info., 976 F.2d 

at 1435 (explaining that an agency formulates or exercises “policyoriented judgment” through its “policy-informed or -informing

judgmental process” and its “mode of formulating or exercising 

policy-implicating judgment”) (emphasis added). Because 

communications decisions involve “the formulation or exercise of 

policy-oriented judgment,” deliberations about—and preceding—

those decisions are protected by the deliberative process privilege. 

Grand Cent. P'ship, 166 F.3d at 482.

An agency exercises policy-oriented judgment when 

communicating its policies “even when [the] underlying decision or 

policy has already been established by the agency.” Seife, 298 

F. Supp. 3d at 616. Regardless of whether the agency has definitively

determined the relevant policy, its decision regarding how to 

communicate that policy does not constitute a “mundane,” 
14

“standard[,] or routine” decision “over which the agency has no 

significant discretion.” Petrol. Info., 976 F.2d at 1436 & n.8. Rather, the 

communications decision implicates the agency’s policymaking role 

and remains “delicate and audience-sensitive, susceptible to 

distortions and vulnerable to fudging when the deliberators fear or 

expect public reaction.” Id. at 1435. Applying the deliberative process 

privilege to records reflecting deliberations about these issues ensures 

that agency staff can consider communications decisions candidly 

and thereby promotes “efficient government operation.” Id. at 1436.

Our conclusion that otherwise deliberative messaging records 

merit protection under the deliberative process privilege finds 

support in our precedents and those of other circuits. In ACLU v. DOJ,

we decided that certain records related to the government’s use of 

drone strikes were not subject to FOIA disclosure. See 844 F.3d 126, 

132-33 (2d Cir. 2016). Two of those records resembled the messaging 

records at issue in this case. The first, “OLC 144,” was “a set of 

suggested talking points concerning the legal basis for drone strikes.” 

Id. at 133. The second, “CIA 59 [T]ab C,” was “a draft of a proposed 

op-ed article that suggested some ways of explaining the 

Government’s legal reasoning in support of drone strikes.” Id. We 

ruled that both of these documents were “predecisional” and 

therefore “need not be disclosed” pursuant to “FOIA Exemption 5” 

Id. at 132-33. Like the messaging records in this case, the documents

in ACLU related to internal agency deliberations regarding how the 

agency would communicate with people outside the agency about a 

substantive decision the agency had already made—namely, its drone 

strike policy. Thus, our decision that those records were 

“predecisional” and protected by “Exemption 5,” id., implicitly 

acknowledged what we clarify today: Records reflecting agency 
15

deliberations relating to and preceding a communications decision 

are covered by the deliberative process privilege.7

This conclusion finds additional support in the First Circuit’s 

decision in New Hampshire Right to Life v. HHS, 778 F.3d 43 (1st Cir. 

2015). In that case, a FOIA requester argued that “documents [that] 

post-date ... [HHS’s] decision to proceed with a ... grant process” for

a Planned Parenthood chapter were “not pre-decisional” and 

therefore were subject to disclosure. Id. at 53-54. The First Circuit 

rejected this argument, reasoning that the documents “pre-date the 

public announcement” of the decision to proceed with the grant 

process and the “documents deal with the Department’s decision of 

how and what to communicate to the public, which is a decision in 

and of itself.” Id. Thus, New Hampshire Right to Life also stands for the 

proposition that agency records reflecting internal deliberations 

about how the agency should communicate with people outside the 

agency qualify for the deliberative process privilege, even if those 

deliberations occur after the agency has adopted the underlying 

policy.8

7 The NRDC argues that we should understand our decision in ACLU v. 

DOJ to have exempted OLC 144 and CIA 59 Tab C from disclosure pursuant 

to the attorney work-product privilege, which Exemption Five also 

incorporates. Yet our repeated use of the word “predecisional” in 

explaining our decision, see 844 F.3d at 132-33, indicates that we were 

applying the deliberative process privilege. See also id. at 132 (observing that 

the government argued that that these “documents are predecisional drafts 

protected by FOIA Exemption 5”).

8 The NRDC tries to distinguish New Hampshire Right to Life by arguing that, 

“[g]iven the incendiary politics that surround allegations of government 

funding of abortions, the decision of whether and how to announce the 
16

Finally, some of the very decisions from which then-Judge 

Ginsburg distilled the deliberative process privilege’s “policyoriented judgment” proviso indicate that agency deliberations about

communications decisions qualify for the privilege. “In Dudman 

Communications [v. Department of Air Force, 815 F.2d 1565 (D.C. Cir.

1987),] and in Russell v. Department of Air Force, 682 F.2d 1045 (D.C.

Cir. 1982),” the D.C. Circuit “held preliminary drafts of official 

military histories exempt” from FOIA disclosure pursuant to the 

deliberative process privilege. Petrol. Info., 976 F.2d at 1434. Russell 

explained that military histories “constitute[] the Air Force’s official 

statement concerning the history” of its operations. 682 F.2d at 1048.

The court observed that “[t]he Air Force depends on this official 

statement to provide a basis for future military and public policy 

decisions” and that it also “must stand by its history in the public 

forum, and ... perhaps in the judicial forum as well.” Id. These military 

histories resemble the communications decisions at issue in this 

appeal. Both are agency statements to the public regarding the 

agency’s actions to implement policies that have already been 

funding decision [in that case was] inherently policy-laden.” Brief for 

Plaintiff-Appellee at 34. This argumentrecognizes the logic that justifies our 

decision today. As the NRDC acknowledges, public reaction to an agency’s 

communication of its already-decided policies affects the agency’s ability to 

pursue its policy agenda. We reject the NRDC’s effort to cabin this 

reasoning to issues that it considers “incendiary.” Id. Such a standard is too 

subjective to provide the stable expectations that the deliberative process 

privilege requires, see In re The City of New York, 607 F.3d 923, 942 (2d Cir. 

2010) (“[F]or a privilege to serve its intended function, potential litigants 

must be able to predict which of their materials will be protected by the 

privilege.”), and indeed an issue might be “incendiary” within the agency’s 

specialized sphere of responsibility even if a court might not later recognize 

it as such.
17

decided. As we do here, the D.C. Circuit recognized that such 

statements impact an agency’s operations and accordingly records

reflecting deliberations about how to formulate these statements 

merit protection under the deliberative process privilege. See Dudman, 

815 F.2d at 1568-69; Russell, 682 F.2d at 1048-49.

In fact, the D.C. Circuit in Russell rejected arguments similar to 

those advanced by the NRDC and accepted by the district court in this 

case. The D.C. Circuit rejected the FOIA requesters’ “argu[ment] that 

the deliberative process privilege is intended to protect 

decisionmaking concerning legal or policy matters in the context of 

an agency’s exercise of rulemaking, adjudication, awarding of 

contracts or grants, or decisions involving health, safety or foreign 

affairs.” Russell, 682 F.2d at 1049 n.2. The court found “nothing in the 

case law or legislative history that indicates the privilege is so 

limited.” Id. Additionally, Russell noted that the FOIA requesters’ 

“argument that the draft report is somehow post decisional because 

[it is] historical is faulty.” Id. at 1049 n.1. The court continued that 

“[t]he report was made public [and] certain draft portions of the 

report were withheld” and concluded that “[t]he report itself is the 

agency action or decision” with respect to which “the draft ... is 

indisputably pre-decisional.” Id.

The D.C. Circuit followed a similar approach in National 

Security Archive v. CIA, holding that an unpublished draft of a CIA 

military history was exempt from disclosure under the FOIA. 752 F.3d 

460 (D.C. Cir. 2014) (Kavanaugh, J.). The court explained that “an 

agency’s official history is a final agency decision” because it 

“constitutes the agency’s ‘official statement’ concerning the agency’s 

prior actions, and it helps educate future agency decisionmakers.” Id. 

at 463 (quoting Russell, 682 F.2d at 1048).
18

Likewise, in Reporters Committee for Freedom of the Press v. FBI, 

the D.C. Circuit decided that communications decisions made in the 

context of “public debate” surrounding an agency’s policy called for 

the exercise of a policy-oriented judgment and were therefore

protected by the deliberative process privilege. 3 F.4th 350, 362 (D.C. 

Cir. 2021). The deliberative materials in Reporters Committee included 

drafts of a letter to the editor by FBI Director James Comey that 

“defended” an already-settled policy of the FBI regarding undercover 

investigations and the agency’s prior implementation of that policy. 

Id. With regard to those messaging records, the D.C. Circuit

concluded that the “discussions regarding proposed revisions to 

Director Comey’s letter” were exempt from disclosure under the 

FOIA’s Exemption Five because those deliberations about the 

agency’s public statement “were part of an internal dialogue about 

critical judgment calls aimed at advancing the agency’s interests.” Id.

at 363. Such a public statement, the court said, did not result from the

sort of merely “descriptive discussions” that do not warrant the 

protection of the deliberative process privilege. Id. To the contrary, 

the deliberations over how to craft the agency’s defense of its prior 

conduct contained “the type of back-and-forth exchange of ideas, 

constructive feedback, and internal debate over how best to promote 

and to preserve the undercover policy that sits at the heart of the 

deliberative process privilege.” Id. at 364.

We agree that while merely “descriptive discussions” do not 

qualify for the deliberative process privilege, agency deliberations 

over how to communicate and promote existing policies to people 
19

outside the agency is not solely a “descriptive” exercise. Id.9 Rather,

such communications “can be delicate and audience-sensitive” and 

require the agency to “exercise ... policy-oriented judgment” to 

effectively pursue its policymaking agenda. Petrol. Info., 976 F.2d at 

1435. The agency’s communications decisions affect whether the 

agency will be able to “preserve an existing policy,” Reps. Comm., 

3 F.4th at 362, or will attract opposition. 

All in all, judicial precedent indicates that an agency exercises 

“policy-oriented judgment” when communicating its policies to 

people outside the agency. Grand Cent. P'ship, 166 F.3d at 482. 

Therefore, records reflecting deliberations—as opposed to merely 

descriptive discussions—regarding those decisions are protected by 

the deliberative process privilege.

9 Indeed, as we note infra in Part III.B., records reflecting the attempt of

agency employees merely to describe the agency’s current practices to a 

superior official do not qualify for the deliberative process privilege. Our 

decision is consistent with another holding of Reporters Committee—that the 

deliberative process privilege did not apply to drafts of an “FBI 

presentation ... to the White House ... that did nothing more than explain 

[an] existing FBI policy.” 3 F.4th at 367. While we would consider such a 

presentation a policy-oriented exercise if it occurred before members of the 

public or Congress, that conclusion does not hold for the scenario at issue 

in Reporters Committee. Because the FBI reports to the President, we would 

not view the presentation at issue in Reporters Committee as the culmination 

of an agency communications decision that merited the protection of the 

deliberative process privilege under the standard announced today, and 

deliberations over that presentation would therefore not implicate the 

policy-oriented judgment involved in communicating with outside 

stakeholders.
20

B

Having concluded that an agency’s communications decision

generally constitutes an “exercise of policy-oriented judgment,”

Grand Cent. P'ship, 166 F.3d at 482, we now consider whether the 

messaging records at issue in this appeal in fact reflect “deliberations”

regarding communications decisions. As noted, we consider a 

document deliberative “if it reflects the give-and-take of the 

consultative process.” Nat. Res. Def. Council, 954 F.3d at 156. 

In the context of a messaging record, we believe that the 

relevant “consultative process” includes the agency’s effort to 

determine what to say about a policy and how to formulate that 

message. Records designed to contribute to those decisions are 

deliberative. However, records that are not related to the form and 

content of the communication will generally lie outside the scope of 

the privilege, even if those records were created while the agency was 

making its communications decision. In other words, only those 

agency documents that “bear on the formulation or exercise” of the 

“policy-oriented judgment” embodied in an agency communication 

qualify as deliberative. Grand Cent. P'ship, 166 F.3d at 482. Records 

that bear on technical matters “peripheral to” that communications 

decision, such as what time of day an agency spokesman will be 

available to deliver that message or which conference room to use for 

a press briefing, lie outside the scope of the privilege. Id.10

10 To be clear, we do not hold that records related to matters that appear 

technical, such as scheduling considerations, can never be covered by the 

deliberative process privilege. Rather, if an agency invokes the deliberative 

process privilege to withhold messaging records that do not relate to the 

form and content of a communications decision, the agency must provide a
21

Bearing this in mind, we reverse the district court’s decision 

with respect to eleven of the messaging records it ordered disclosed: 

Documents 401, 8309, 9765, 11126, 21815, 22970, 23178, 25096, 25349, 

25605, and 25606.11 The Vaughn Index entry for each of these records

demonstrates that it was created as part of the EPA’s efforts to 

communicate with people outside the agency about specific policies 

and that the document reflects discussions about what to say about 

the policy or how to formulate that message. See J. App’x 77-78, 91-95, 

135-37, 141-42, 148-50, 172-73, 186-87, 194-95. 12 Furthermore, these 

entries indicate that the records reflect the views of agency staff, not

the ultimate communications decision on which the EPA itself 

settled.13 Thus, these records are predecisional and deliberative and 

specific “reasonably detailed explanation[],” ACLU v. DOD, 901 F.3d at 133, 

as to why that record in fact “bear[s] on the formulation or exercise” of the 

“policy-oriented judgment” embodied in that agency communication. 

Grand Cent. P’ship, 166 F.3d at 482.

11 The EPA’s Vaughn submissions to the district court identified records

using extended alphanumeric strings. For ease of reference, we refer to 

those records by their unique terminal digits. For example, we refer to 

“ED_001338_00000401” as “Document 401.” 

12 For example, Document 401 is a “two-page draft of talking points for 

then-EPA Administrator Scott Pruitt.” J. App’x 77. The EPA’s Vaughn

submission explains that the withheld information “reflects draft language 

on how to present the EPA program for reviewing new chemicals under the

Toxic Substances Control Act,” which “was shared with a senior manager 

for her opinions, edits, and recommendations on how to present 

information about the new chemicals review.” Id.

13 The draft talking points in Document 401, for example, “do[] not reflect 

an official Agency policy or decision” because the talking points were “still 

being edited and reviewed” when the document was created. J. App’x 77. 

Rather, the document “reflect[s] the incomplete view of some staff who[]

shared the document for internal discussion.” Id. at 78.
22

exempt from disclosure pursuant to the FOIA’s Exemption Five and 

the deliberative process privilege. See Grand Cent. P’ship, 166 F.3d at 

483 (concluding that a document was “pre-decisional” because it was

“directly related to the three agency decisions ... and precede[d] all 

three in temporal sequence” and that the document was 

“deliberative” because it “formed an important ... link in [the 

agency’s] consultative process, ... reflects the personal opinions of its 

writer,” and “may well reflect inaccurately upon or prematurely 

disclose the views of [the agency]”).

However, the EPA’s Vaughn Index entries for the remaining 

seven messaging records that the district court ordered the EPA to 

disclose do not provide sufficient details from which we can ascertain 

the records’ deliberative character. These records are Documents

2048, 5427, 7169, 13150, 13257, 19639, and 22782. Six of these records

arguably reflect agency discussions leading up to a communications 

decision regarding its policies, but the entries for these records do not 

indicate whether these discussions concerned the agency’s decision of 

what to say about the policy or how to formulate that message. See 

J. App’x 86-87, 89-90, 101-02, 104-05, 137-38, 162-63.14 Consequently, 

14 The entry for Document 7169, for example, reveals only that the record 

“discuss[es] a request from an Associated Press reporter for an interview 

about asbestos” and “reflect[s] pre-decisional deliberations ... about 

responding to [that] request.” J. App’x 89-90. If these deliberations 

concerned how the EPA would present its position on some asbestosrelated policy in that interview, the document would qualify for the 

deliberative process privilege. But the description does not indicate the 

focus of the discussions reflected in Document 7169. The EPA’s effort to 

“respond[] to a request from a reporter ... for an interview,” id. at 90, could 

involve a host of technical considerations, such as scheduling conflicts, and

a record that relates to those issues would likely fall outside the scope of the 
23

we cannot discern whether these records relate to the “consultative 

process” relevant to these communications decisions, Nat. Res. Def. 

Council, 954 F.3d at 156, or instead concern matters merely “peripheral 

to” those decisions, Grand Cent. P’ship, 166 F.3d at 482. 

The seventh of these records presents a somewhat unique case. 

This record, Document 22782, contains “draft suggestions and 

responses to [a] reporter’s question” that “do[] not reflect an official 

Agency policy or final agency action or decision.” J. App’x 141. If this 

reporter’s question concerned one of the EPA’s policies, then we 

would have little trouble concluding that the record is deliberative. 

Yet the reporter inquired about the agency’s “postponed meeting on 

glyphosate,” a chemical compound then under review. Id. (emphasis 

added). Absent any explanation in the Vaughn Index entry, we cannot 

determine whether the EPA’s initial decision to postpone that

meeting resulted from considerations that would allow us to 

conclude that the agency’s communications decision regarding the 

postponement involved the exercise of policy-oriented judgment.15

deliberative process privilege. Additionally, the entry does not explain 

what, if any, asbestos-related policy issues the reporter inquired about. The 

deliberative process privilege does not automatically apply when an 

agency simply connects a record to a topic within its purview.

15 Perhaps the meeting was postponed because of weather-related

transportation delays or cancellations. It is hard to imagine how 

communicating that information requires policy-oriented judgment. But 

the EPA’s communications decision regarding the postponement could 

have involved the exercise of policy-oriented judgment. Perhaps the agency 

postponed the meeting because it was reconsidering its position on 

glyphosate. If that was the case, the agency would have had to carefully 

formulate its response to the reporter’s question if it did not want 
24

We nonetheless vacate the district court’s order requiring the 

EPA to disclose these seven messaging records and remand for the 

agency to provide additional explanation consistent with the 

standard we describe here. Until now, our precedents had not 

provided clarity regarding what types of messaging records an 

agency may withhold pursuant to the deliberative process privilege. 

When the EPA prepared its Vaughn Index, it could not have known 

the details that we would require to uphold its reliance on the 

privilege. Accordingly, the EPA should have the opportunity to 

explain its withholding decisions in light of the clarified standard, 

and we remand to allow the EPA to revise its Vaughn Index entries for 

these seven records if it chooses to do so. 

III

We now turn to the four briefing documents, Documents 14518, 

14561, 14935, and 25173. These documents “are records ... created to 

brief senior agency staff about various topics within the agency’s 

purview.” NRDC I, 2019 WL 4142725, at *11. Specifically, these 

documents reflect efforts by agency employees to “provid[e] [a]

senior manager with information and supporting documentation in 

response to her questions and comments on the role of epidemiology 

data in [the agency’s] human health risk assessments.” J. App’x 117, 

121.

prematurely to disclose that it was reconsidering those policies. Still, the 

current Vaughn Index entry for Document 22782 fails to provide a 

sufficiently “reasonably detailed explanation[]” to justify the EPA’s 

decision to withhold this record. ACLU v. DOD, 901 F.3d at 133.
25

A

In setting out the “[a]pplicable [l]egal [p]rinciples” for the 

deliberative process privilege, the district court explained that for a 

document to qualify as predecisional the agency “must be able to 

demonstrate that, ex ante, the document for which [the] privilege is 

claimed related to a specific decision facing the agency.” NRDC I, 2019 

WL 4142725, at *6 (quoting Tigue, 312 F.3d at 80). The district court 

then applied this requirement when it ordered the EPA to disclose the

briefing documents, holding that those records were not 

“predecisional” because the records did not “‘relate to a specific 

decision facing the agency.’” Id. at *11 (internal citation and alteration

omitted) (quoting Tigue, 312 F.3d at 80). 

Requiring that a record “relate to a specific decision facing the 

agency,” however, places an unduly restrictive gloss on the 

deliberative process privilege’s predecisional requirement. While that 

requirement excludes records that discuss a decision already made, 

see Sierra Club, 141 S. Ct. at 786, it “does not mean that the existence of 

the privilege turns on the ability of an agency to identify a specific 

decision in connection with which a memorandum is prepared,”

Sears, Roebuck & Co., 421 U.S. at 151 n.18. To the contrary, “[a]gencies 

are, and properly should be, engaged in a continuing process of 

examining their policies,” and “courts should be wary of interfering 

with this process.” Id. In light of this admonition, we hold that a 

record is predecisional if it relates to a specific decision or a specific 

decisionmaking process and was generated before the conclusion of that 

decision or process. The D.C. Circuit has long recognized that the 

privilege does not “require that [a] document contribute to a single, 

discrete decision” but rather protects records that, more broadly, 
26

relate to a “definable decisionmaking process.” Access Reps. v. DOJ, 

926 F.2d 1192, 1196 (D.C. Cir. 1991). 

For example, an agency may undertake a critical review of its 

regulations without the objective of implementing a specific new 

statute or achieving a particular amendment to the regulations. If the 

deliberative process privilege applied only to documents that relate 

to a specific decision facing the agency, one might argue that

deliberations occurring in the course of that review do not qualify for 

the privilege. But under our test, the agency’s critical review 

represents a specific decisionmaking process and the agency may 

withhold records reflecting deliberations relevant to that process. The 

agency might also undertake a critical review of its decisionmaking 

processes—such as the agency’s methodology for conducting costbenefit analyses when it regulates—even if that review is not directed 

at altering, repealing, or promulgating a specific regulation. Records 

relating to that review would be connected to a specific 

decisionmaking process.

It is true that our opinion in Tigue stated that an agency “must 

be able to demonstrate that, ex ante, the document for which executive 

privilege is claimed related to a specific decision facing the agency,” 

312 F.3d at 80, but Tigue did not adopt this requirement as the law of 

our circuit or hold that it was the exclusive test for applying the 

privilege. Rather, we employed that language to explain the “Ninth 

Circuit[’s] ... holding that ... the government must show that the 

material was prepared to assist the agency in the formulation of some 

specific decision.” Id. (discussing Maricopa Audubon Soc’y v. U.S. Forest 

Serv., 108 F.3d 1089, 1094 (9th Cir. 1997)). The relevant discussion in 

Tigue rejected the plaintiffs’ argument in that case that, if the Ninth 

Circuit’s test were to apply, it would require a different result than 
27

the one we had reached under our prior decision in Grand Central 

Partnership. See id.16

B

Even under the test we adopt today for determining whether a 

document is predecisional, we cannot conclude on the present record 

that the EPA properly withheld the four briefing documents. The 

Vaughn Index entries for those records merely note that the records 

contain information “on the role of epidemiology data in [the 

agency’s] risk assessments” and were prepared in response to a senior 

official’s “questions and comments” on that topic. J. App’x 117, 121. 

In its briefing before our court, the EPA insists that these documents 

related to two ongoing rulemaking processes under the TSCA, but the

corresponding Vaughn Index entries do not draw any such 

connection. And while the entries do indicate that the information 

contained in these records “was considered as part of the Agency’s 

deliberations on the role of epidemiology data in [the agency’s]

human health risk assessments,” the entries do not explain whether

the agency had undertaken to critically review or revise its practices 

regarding the use of epidemiology data. Id. at 117-18, 121-22. In other 

16 Our opinion in Brennan Ctr. for Justice v. DOJ, 697 F.3d 184 (2d Cir. 2012), 

also did not adopt a specific decision requirement. In Brennan Center we 

quoted from a First Circuit case to say that “an agency may meet its burden 

of proof under the predecisional document test by demonstrating ... that 

the document was originated to facilitate an identifiable final agency 

decision.” Id. at 202 (emphasis added) (internal quotation marks omitted) 

(quoting Providence J. Co. v. U.S. Dep’t of Army, 981 F.2d 552, 559 (1st Cir. 

1992)). Relying on the language of “may”—not “must”—implies that 

identifying a “specific decision” is a possible, but not the exclusive, way for 

an agency to “meet its burden of proof under the predecisional document 

test.” Id.
28

words, these Vaughn Index entries do not clarify whether the 

information contained in these records was collected and curated to 

assist in an agency decisionmaking process related to the role of 

epidemiology data or if the material was instead prepared merely to 

describe the agency’s current practices to an agency official. 

Nonetheless, we will vacate the district court’s order requiring 

the EPA to disclose these four briefing documents. When the EPA 

prepared its Vaughn Index, it lacked guidance from our court 

regarding how a record relevant to a decisionmaking process—as 

opposed to a specific decision—might qualify for the deliberative 

process privilege. The EPA should have the opportunity to explain its 

withholding decisions in light of the clarified test we adopt today, and 

we remand for the EPA to revise its Vaughn Index entries for these 

four briefing documents if it chooses to do so.17

CONCLUSION

Agencies exercise policy-oriented judgment when determining 

how to communicate with people outside the agency about a policy. 

Therefore, the deliberative process privilege shields otherwise 

deliberative agency records that relate to and precede an agency’s 

17 The district court also decided that these records were not “deliberative”

because the records did not “form[] an essential link in a specified 

consultative process.” NRDC I, 2019 WL 4142725, at *11 (quoting Grand 

Cent. P'ship, 166 F.3d at 482). Yet when viewing the deliberative process

privilege’s application in the context of a broader decisionmaking process—

a view that the district court might have thought our precedents 

foreclosed—material that provides an overview of an agency practice 

implemented across many decisions, such as the EPA’s use of epidemiology 

data in human health risk assessments, might very well constitute a record 

related to that consultative process.
29

communications decision. In this context, a record is “deliberative” if 

it reflects discussions about what the agency should say about a 

policy or how to formulate that message. Additionally, an agency 

may invoke the deliberative process privilege by connecting a record 

not only to a specific contemplated decision but also to a specific 

decisionmaking process.

In this case, the EPA’s Vaughn submissions establish that eleven 

of the “messaging records” subject to the EPA’s appeal meet the

standards outlined above. Accordingly, we REVERSE the district 

court’s decision denying the EPA summary judgment with respect 

those eleven records—Documents 401, 8309, 9765, 11126, 21815, 

22970, 23178, 25096, 25349, 25605, and 25606.18 We also VACATE the 

district court’s order requiring the EPA to disclose the other records 

disputed in this case and REMAND for the EPA to revise the 

corresponding Vaughn Index entries if it so chooses and for further 

proceedings consistent with this opinion.

18 Despite the NRDC’s insistence, we need not remand for the district court 

to determine whether the EPA “reasonably foresees that disclosure” of 

these records “would harm an interest protected by” Exemption Five. 

5 U.S.C. § 552(a)(8)(A)(i). The district court already determined that the 

EPA met the “foreseeable harm” requirement and concluded that 

“summary judgment must be and is granted to the agency on this issue.” 

NRDC I, 2019 WL 4142725, at *5. The district court did not carve out any 

records from its holding regarding the foreseeable harm requirement.
1 LOHIER, Circuit Judge, concurring in part and dissenting in part:

2 Congress passed the Freedom of Information Act, 5 U.S.C. § 552, to 

3 provide the public with access to “official information long shielded 

4 unnecessarily from public view.” Envtl. Prot. Agency v. Mink, 410 U.S. 73, 80 

5 (1973). The statute revised the public disclosure section of the Administrative 

6 Procedure Act, 5 U.S.C. § 1002 (1964 ed.), which had fallen “far short of its 

7 disclosure goals.” Id. at 79. Where the Administrative Procedure Act had 

8 allowed the Government to evade disclosure wherever it claimed secrecy was “in 

9 the public interest,” id., FOIA set forth “a general philosophy of full agency 

10 disclosure unless information is exempted under clearly delineated statutory 

11 language,” S. Rep. No. 813, 89th Cong., 1st Sess., 3 (1965). Even FOIA’s 

12 exemptions “do not obscure . . . that disclosure, not secrecy, is the dominant 

13 objective of the Act.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976). In 

14 2016, out of concern that “some agencies [were] overusing FOIA exemptions,” S. 

15 REP. NO. 4, 114th Cong., 1st Sess. 2 (2015), Congress adopted the FOIA 

16 Improvement Act, Pub. L. No. 114–185, 130 Stat. 538 (2016), under which 

17 agencies may withhold information under a FOIA exemption only if the agency 

18 “reasonably foresees that disclosure would harm an interest protected by an 
2

1 exemption” or if “disclosure is prohibited by law,” FOIA Improvement Act § 2, 

2 130 Stat. at 539 (codified at 5 U.S.C. § 552(a)(8)(A)(ii)).

3 This case concerns Exemption Five, which, among other things, shields 

4 from disclosure “documents reflecting . . . deliberations comprising part of a 

5 process by which governmental decisions and policies are formulated.” U.S. Fish 

6 & Wildlife Serv. v. Sierra Club, Inc., 141 S. Ct. 777, 785 (2021) (quotation marks 

7 omitted). To be protected by the deliberative process privilege, a document must 

8 be both predecisional, meaning that it was generated before an agency’s final 

9 decision on a matter, and deliberative, meaning that it was “prepared to help the 

10 agency formulate its position.” Id. at 786.

11 With this background in mind, I concur in the majority’s analysis as to the 

12 four briefing documents. Because agencies continually examine and reexamine 

13 their policies, I agree that a record can be predecisional if it relates either to a 

14 specific decision or to a specific decisionmaking process, and the Environmental 

15 Protection Agency should have the opportunity to clarify its Vaughn Index

16 entries in light of this holding. 

17 I write separately, however, to address the majority’s approach to 

18 messaging records. There is quite a bit of merit to the idea that messaging—that 
3

1 is, how the agency chooses to communicate with people and entities outside the 

2 agency—can implicate policy. As the majority notes, how an agency chooses “to 

3 present its substantive policies to the public often involves the evaluation of 

4 alternative public relations policies” and may even require “an analysis of the 

5 underlying policy itself.” Majority Op. at 13 (quoting Seife v. Dep’t of State, 298 

6 F. Supp. 3d 592, 616 (S.D.N.Y. 2018)). Where communications decisions involve 

7 the “exercise of policy-oriented judgment,” Grand Cent. P’ship, Inc. v. Cuomo, 

8 166 F.3d 473, 482 (2d Cir. 1999) (quotation marks omitted), the deliberative 

9 process privilege may protect deliberations that directly relate to and precede

10 those decisions. 

11 But not all communications decisions implicate policy in this way. See

12 New York v. U.S. Dep’t of Commerce, No. 18-CV-2921, 2018 WL 4853891, at *2 

13 (S.D.N.Y. Oct. 5, 2018) (“[N]ot all ‘messaging’ decisions are so intimately bound 

14 up with an agency’s central policy mission.”). Sometimes, messaging 

15 communications “amount to little more than deliberations over how to spin a 

16 prior decision, or merely reflect an effort to ensure that an agency’s statement is 

17 consistent with its prior decision.” Id. When that is so, FOIA does not permit an 

18 agency to invoke the deliberative process privilege to avoid disclosure. 
4

1 The D.C. Circuit recently concluded as much in Reporters Committee for 

2 Freedom of the Press v. FBI, reasoning that “documents that discuss, describe, or 

3 defend an already-determined agency policy” fail to “advance the purposes of 

4 the deliberative process privilege—to allow agency employees to have the 

5 candid discussions necessary to make the best possible policy decisions in service 

6 of the public.” 3 F.4th 350, 363–64 (D.C. Cir. 2021). The facts of Reporters 

7 Committee illustrate the point. Among the documents at issue in that appeal 

8 were emails discussing proposed changes to a draft letter to the editor that FBI 

9 Director James Comey had written to defend the agency’s use of media 

10 impersonation as an investigative tactic. The D.C. Circuit concluded that these 

11 documents qualified for protection under the deliberative process privilege 

12 because they contained a “back-and-forth exchange of ideas” that formed “part 

13 of an internal dialogue about critical judgment calls aimed at advancing the 

14 agency’s interests in the midst of a vigorous public debate about an FBI 

15 undercover policy with a decidedly uncertain future at the time.” Id. at 363–4. 

16 The emails, in other words, did not simply “defend an already-determined 

17 agency policy.” Id. at 363. To the contrary, the FBI policy at issue was in flux: 

18 The FBI was under “significant external pressure” to change its guidelines 
5

1 regarding the impersonation of news media during undercover operations, 

2 which it ultimately did. Id. at 363–64. 

3 As Reporters Committee recognized, however, circumstances like the FBI’s

4 will not always be present when an agency communicates its policies to the 

5 public. While the majority suggests otherwise, see Majority Op. at 18–19, agency

6 deliberations over how to communicate and promote existing policies can, in

7 fact, be merely a “descriptive” exercise—as, for example, when the agency seeks 

8 to explain a policy decision that is truly already settled rather than in flux. In my 

9 view, therefore, FOIA compels a flexible approach under which agency 

10 messaging records are not always or even presumptively protected by the 

11 deliberative process privilege. Although that approach hews closely to the D.C. 

12 Circuit’s reasoning in Reporters Committee, I recognize that it departs from the 

13 path taken in New Hampshire Right to Life v. HHS, where the First Circuit 

14 referred to an agency’s “decision of how and what to communicate to the public”

15 as “a decision in and of itself.” 778 F.3d 43, 54 (1st Cir. 2015). But such a 

16 categorical approach risks expanding Exemption Five so much that it swallows 

17 the very purpose of FOIA. 
6

1 Because agencies should not be allowed to withhold messaging documents 

2 that merely “discuss, describe, or defend an already-determined agency policy,” 

3 Reps. Comm., 3 F.4th at 363, I am not persuaded on the present record that the 

4 EPA properly withheld the following eleven documents in this case: 401, 8309, 

5 9765, 11126, 21815, 22970, 23178, 25096, 25349, 25605, and 25606. As the majority 

6 asserts, the Vaughn Index entries for these records indicate that they were 

7 deliberative documents “created as part of the EPA’s efforts to communicate 

8 with people outside the agency about specific policies.” Majority Op. at 21. In 

9 my view, that description is not enough for the records to qualify for protection 

10 under the deliberative process privilege. The agency would also have had to 

11 make clear that the communications involved more than merely determining

12 how to describe or spin policy decisions the agency had already made—for 

13 example, by showing that the process of deciding which message to deliver was 

14 both deliberative and related to a policy decision that was not finalized. Because

15 the EPA did not do so with respect to the eleven records referenced above, I 

16 would vacate rather than reverse the District Court’s decision as to those records 

17 and remand for the agency to provide additional explanation consistent with the 

18 standard described here. Aside from its fidelity to FOIA’s language, that
7

1 standard has the added benefit of incentivizing agencies to provide more rather 

2 than less information in their Vaughn Index, thus exposing agency justifications 

3 to the “revealing ‘sunlight’ of public scrutiny.” Mead Data Cent., Inc. v. U.S. 

4 Dep’t of Air Force, 566 F.2d 242, 259 (D.C. Cir. 1977). That itself can only further 

5 promote the aims of FOIA, which “stack[s] the scales in favor of disclosure and 

6 against exemption.” Id.

7 For these reasons I very respectfully concur in part and dissent in part.