20

- 422 NRDC v. EPA 

# In the **United States Court of Appeals** FOR THE SECOND CIRCUIT

A UGUST T ERM 2020 No. 20

- 422

N ATURAL R ESOURCES D EFENSE C OUNCIL , Plaintiff

- Appellee ,

v.

U NITED S TATES E NVIRONMENTAL P ROTECTION A GENCY , Defendant

- Appellant

.

On Appeal from the United States District Court for the Southern District of New York

A RGUED : F EBRUARY 10, 2021 D ECIDED : N OVEMBER 29, 2021

Before : P ARKER , L OHIER , and M ENASHI , 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 Defense2 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 privile ge 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 pre cede an agency’s communicati ons decision about a policy. In the context of a communications decision, a record is deliberative if it reflects discussion s about how to communicate the agency’s policies to the public or to other stakeholders . Additionally, we hold that an agency may in voke 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 furt her proceedings consistent with this opinion. Judge Lohier concurs in part and dissents in part in a separate opinion.

R ACHEL L. F RIED ( David C. Vladeck , on the brief ) , Georgetown University Law Center Civil Litigation Clinic , Washington, DC , for Plaintiff

- Appellee

.
T OMOKO O NOZAWA ( 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, N Y, for Defendant

- Appellant

.3 M ENASHI , 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 o r 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 discret e 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 th at relate to and pre cede the agency’s final communications decision. Additionally , an agency may invoke the deliberative process privilege by connecting a re cord 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 Adm inistrator of the EPA’s Office of4 Chemical Safety and Pollution Prevention. T he NRDC wanted information about Beck’s role in policymaking under the Toxic Substances Control Act (“TSCA”) and related pesticide matters

. T he 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 thes e records but withheld the rest , either in full or in part , on the ground that those records were exempt from FOIA disclosure. T he parties then agree d that the EPA would pre pare a Vaughn Index describing 120 of the u ndisclosed records and justifying the EP A’s nondisclosure decisions . With the Index prepared and filed, the EPA moved for summary judgment. T he 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 N at. R es. D ef. C ouncil 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 N at. R es. D ef. C ouncil 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, t he 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 , 2 019 WL 4142725, at * 7, *10 (internal quotation marks omitted).5 The m essaging 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 ) )

. T he district court further held that the privilege generally does not protect a messaging record that , in contrast, “ merely reflect [s] deliberatio ns 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 already

decided policy decision” if the agency’s communication s decision constituted an “ exercise [] of [the agency’s] ‘ essential policymaking role ’ in and of [itself].” NRDC I , 2 019 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 determin e whether a communication s decision falls within an agency’s “essential policymaking role.” Id. at *9. I n it s earlier decision announc ing th e exception , the district court explained the exception by way of example, indicat ing 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 b riefing documents “ are record s ... 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

ou r precedents indicating that the privilege applie s 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

con cluded that the four briefing documents at issue in this appeal f ailed to mee t th o se 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. T he EPA’s Vaughn I ndex , however, characterized th i s record i n a manner resembling its characterization of the other messaging records disputed here. That the district court thought th is record w as 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 summar y 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, w e “accord[] a presumption of goo d faith” to an agency’s “[a]ffidavits or declarations , ” i d. , and when an agency provides “reasonably detaile d explanations ” to support its decision to withhold a document , its “justification is sufficient if it appears logical and plausible , ” ACLU v. D O D , 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 Fi rst, 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 th e 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 T he 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 not8 records , ” that is, records relating to an agency’s decision about how to communicate its policies to people outside the agency, and , i f 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 unle ss 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 pr ivilege.” 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 “p artial 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 “refl ects 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 t he 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]h e 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.” N at. R es. D ef. C ouncil 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 i ts position ,” Sierra Club , 141 S. Ct. at 786, by analyzing “if it reflects the give

- and

- take of the consultative process , ” N at. R es. D ef. C ouncil , 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 sa id 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

— for11 example, mat erials 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, c ourts nee d 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 , 2 019 WL 4142725, at *8. Includ ed in these records are draft talking points prepared for senior agency staff about agency policies an d 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 communic ate 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 d o es 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 , i ndustry members, a nd 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

. I f an agency seeks to shape conduct through its polic i es, it must take care to explain those policies in ways that will el i c i t compliance

. 6 A s it pursues its policy agenda, moreover, the agency must maintain consistency with the explanations it ha s 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 i ndividual businesses”); id. at 243

- 44 ( explaining that “[e]ach of an agency ’ s public statements ” about its “[a]ims and [a]ctivities”

— whether th e statement comes “ by means of a decision in a case, a report, a guideline, a speech, or testimony before a gover nment body”

— build s 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 patienc e 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 c onsiderations, “a n 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 publ ic 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 po licies and must be informed by those policies. T hose 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 “policy

oriented judgment” through its “ policy

- informed or

- informing judgmental process” and its “ mode of formulating or exercisin g policy

- implicating judgment ”) (emphasis added)

. B ecause communications decisions involve “ the formulation or exercise of policy

- oriented judgment , ” deliberations about

— and preced ing

— those decisions are protected by the deliberative process privilege. Grand Cent. P'ship , 166 F.3d at 482

. A n agency exercises policy

- oriented judgment when communicat ing its policies “e ven when [the] underlying decision or policy has already been established by the agen cy .” 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 a gency has no significant discretion.” Petrol

. Info. , 976 F.2d at 143 6 & 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 ther eby 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 th o se 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 way s 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 relate d 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 agency15 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 i n New Hampshire Right to Life v. HHS , 778 F.3d 43 (1st Cir. 2015). In that case, a FOIA requester argu ed 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” o f th e 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 propositi on that agency records reflect ing 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 po licy. 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 a re 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 the16 Finally, some of the very decisions from which then

- Judge Ginsburg distilled the deliberative process privilege’s “policy

oriented 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 draf ts of official military histories exempt ” from FOIA disclosure pursuant to the deliberative process privilege. Petrol

. Info. , 976 F.2d at 143 4. Russell explained that military histories “ constitute [] the Air Force ’ s official statement concerning the histor y ” 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. Th ese military histories resemble the communications decisions at issue in this appeal. Both are agency statements to the public regarding the agency’s action s to implement policies that have already be en

funding decision [in that case was] inherently policy

- laden.” Brief for Plaintiff

- Appellee at 34. This argument recognizes the logic that justifies our decision today. As the NRD C acknowledges , public reaction to an agency’s communication of its already

- decided polic i es 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 p rovide the stable expectations that the deliberative process privilege requires , see In re T he 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

. Se e Dudman , 815 F.2d at 1568

- 69; Russel l , 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

. T he 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, safe ty or foreign affairs.” Russe l l , 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] historic al 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 Nat iona l Sec urity 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) (Kav anaugh, J.) . The court explained that “ a n 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, i n Rep orters Committee for Freedom of the Press v. F BI , the D.C. Circuit decided that communications decisions made in the context of “public debate” surrounding an agency’s policy called for the exerc ise of a policy

- oriented judgment and were th erefore 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 D irector 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

con cluded 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 criti cal judgment calls aimed at advancing the agency’s interests

. ” Id. at 3 63

. Such a public statement , the court said , did not result from the sort of merely “descriptive discussions ” that d o 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 u ndercover policy that sits at the heart of the deliberative process privilege .” Id. at 364.

W e agree that while merely “ descriptive discussions ” do not qualify for the deliberative process privilege , agency deliberations

over how to communicate and promot e existing policies to people19 outside the agency is not solely a “ descriptive ” exercise

. I d. 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 14 35

. 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 indicate s 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 discussi ons

— regarding those decisions are protected by the deliberative process privilege.

9 Indeed, as we note infra in Part III.B

. , records re flecting 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. O ur decision is consistent with another holding of Reporters Committee

— that the deliberative process privilege d id not apply to drafts of an “ FBI presentation

... to the White House ... t hat 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 i f 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 culm ination 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 cons ider whether the messaging records at issue in this appeal in fact reflect “ deliberations ” regarding communications decision s . As noted , we consider a document deliberative “if it reflects the give

- and

- take of the consultative process

. ” N at. R es. D ef. C ouncil , 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 . Record s designed to contribute to th ose 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 record s were created while the agency was making its communications deci sion

. 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 spokesm a n 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 m essaging records that do not relate to the form and content of a communications decision, the agency must provide a21 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 polic i es and that the document reflect s discussions about what to say about the policy or how to formulate that messag e. 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 pred e cisional and deliberative and

specific “reasonably detailed explanation [] , ” ACLU v. D O D , 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 rec ords 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_0000 0401 ” 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 Gr and 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 , ... r eflect s the personal opini ons of its writer ,” and “ may well reflect inaccurately upon or prematurely disclose the views of [the agency]”).

However , t he 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 commu nications 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 asbest os” and “reflect[s] pre

- decisional deliberations ... about responding to [that] request.” J. App’x 89

- 90. I f these deliberations concerned how the EPA would present its position on some asbestos

related policy in that interview, the document would qualify for the deliberative process privilege. But th e 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 tec hnical considerations, such as scheduling conflicts, a nd
a record that relate s to those issues would likely fall outside the scope of the23 we cannot discern whether the se record s relate to the “consultative process” relevant to th e s e communications decisions, N at. R es. D ef. C ouncil , 954 F.3d at 156 , or instead concern matters merely “peripheral to” those de cision s , 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 conclud ing that the record is deliberative

. Yet t he reporter inquir ed 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 th at 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 privileg e. 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 cance l lations. 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 judgme nt. 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 want24 We nonetheless vacate the district court’s order requiring the EPA to disclose t hese seven messaging record s and remand for the agency to provide additional explanation consistent with the standard we describe here

. U ntil now, our precedents had not provided clarity regarding what types of messaging records an agency may withhold pursuant to th e deliberative process privilege. When the EPA prepared its Vaughn Index , it could not have known the details that we would require to uphold its relia nce on the privilege. Accordingly, t he 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 entr ies 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 record s ... created to brief senior agency staff about various topics within the agency ’ s purview .” NRDC I , 2 019 WL 4142725 , at *11. Specifica lly, 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. D O D , 901 F.3d at 133.25 A In setting out the “[a]pplicable [l]egal [p]rin ciples” 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 deci sion facing the agency.” NRDC I , 2 019 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 ” becaus e 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 u nduly 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 continuin g 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 pre decisional if it relates to a specific decision or a specific decisionmaking process and was generated before th e conclusion of that decision or process

. T he D.C. Circuit has long recognized that the privilege does not “require that [a] document contribute to a single, discrete decision” but rather protect s records that, more broadly,26 relate t o a “ definable decisionmaking process .” Access Reps

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

. For example, a n 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 t hat process. The agency might also undert ake a critical review of its decisionmaking processes

— such as the agency’s methodology for conducting cost

benefit analys e s when it regulates

— even if that review is not directed at altering, repealing, or promulgati ng 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 privi lege 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 ex plain 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 reject ed the plaintiffs’ argument in that case that, if the Ninth Circuit ’s test were to apply, it would require a different result than27 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 process es under the TSCA, but the corresponding Vaughn Index entries do not draw any such connection. And while the entries do indic ate 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 cri tically review or revise its practices regarding the use of epidemiology data. Id. at 117

- 18, 121

- 22. In other

16 Ou r opinion in Brennan Ctr. for Justice v. DOJ , 697 F.3d 184 (2d Cir. 2012) , also did not adopt a specific decision requirement. I n Brennan Center we quoted from a First Circuit c ase 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, 55 9 (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 predeci sional 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 epidemiolog y data or i f the material was instead prepared merely to describe the a gency’s current practices to an agency official

. No netheless, we will vacate the district court’s order requiring the EPA to disclose these four briefing documents

. When the EPA prepared its Vaug h n Index , it lacked guidance from our court regarding how a record relevant to a deci si onmaking process

— as oppos ed 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 ent ries 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 shield s otherwise deliberative agency records that relate to and prec ede an agency’s

17 The district court also decided that the se 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 w hen viewing the deliberative process privilege ’s application in the context of a broader decisionmaking proce ss

— a view that the district court might have thought our precedents foreclosed

— material that provides an overview of a n agency practice implement ed across many decisions , such as the EPA’s use of epidemiology data in h uman health risk assessments , might very well constitute a record related to th at 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 conne cting a record not only to a specific contemplated decision but also to a specific decisionmaking process

. In this case , t he EPA’s Vaughn submissions establish that eleven of the “messaging records” subject to the EPA’s appeal meet th e standard s outline d above . Accordingly, we REVERSE the district court’s decision deny ing 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 requi ri ng the EPA to disclose the other records disputed in this case and REMAND for the EPA to revise the corresponding Vaughn Index e ntries if it so chooses and for further proceedings consistent with this opinion.

18 Despite the NRDC’s insistence, we need not reman d 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 “fores eeable 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.LOHIER, Circuit Judge , concurring in part and dissenting in part: 1 Congress passed t he Freedom of Information Act, 5 U.S.C. § 552 , to 2
provide the public with access to “official information long shielded 3
unnecessarily from public view.” Env tl. Prot. Agency v. Mink , 410 U.S. 73, 80 4
(1973). The statute revised the public disclosure section of the Administrative 5
Procedure Act, 5 U.S.C. § 1002 (1964 ed.), which had fallen “far short of its 6
disclosure goals

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

allowed the G overnment to evade disclosure wherever it claimed secrecy was “in 8
the public interest,” i d. , FOIA set forth “a general philosophy of full agency 9

disclosure unless information is exempted under clearly delineated statutory 10
language, ” S. Rep. No. 813, 89th C ong., 1st Sess., 3 (1965). Even FOIA’s 11
exemptions “do not obscure

. . . that disclosure, not secrecy, is the dominant 12
objective of the Act.” Dep’t of Air Force v. Rose , 425 U.S. 352, 361 (1976). In 13
2016, out of concern that “some agencies [were] overusi ng FOIA exemptions,” S. 14
REP. NO. 4, 114th Cong., 1st Sess. 2 (2015), Congress adopted the FOIA 15
Improvement Act, Pub. L. No. 114

– 185, 130 Stat. 538 (2016), under which 16
agencies may withhold information under a FOIA exemption only if the agency 17
“reasonably f oresees that disclosure would harm an interest protected by an 182 exemption” or if “disclosure is prohibited by law ,” FOIA Improvement Act § 2, 1
130 Stat. at 539 (codified at 5 U.S.C. § 552(a)(8)(A)(ii)). 2

This case concerns Exemption Five , which, among other things, shields 3
from disclosure “documents reflecting

. . . deliberations comprising part of a 4
process by which governmental decisions and policies are formulated.” U.S. Fish 5

& Wildlife Serv. v . Sierra Club, Inc. , 141 S. Ct. 777, 785 (2 021) (quotation marks 6
omitted). To be protected by the deliberative process privilege, a document must 7
be both predecisional, meaning that it was generated before an agency’s final 8
decision on a matter, and deliberative, meaning that it was “prepared to h elp the 9
agency formulate its position.” Id. at 786. 10

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

. Because agencies continually examine and reexamine 12
their policies, I agree that a record can be predecisional if it relates either to a 13
specific decision or to a specific decisionmaking process , and t he E nvironmental 14
Protection Agency should have the opportunity to clarify its Vaughn Index 15
entries in light of this holding. 16
I write separately, however, to address the majority’s approach to 17
messaging records. There is quite a bit of merit to t he idea that messaging

— that 183 is, how the agency chooses to communicate with people and entities outside the 1

agency

— can implicate policy. As the majority notes, how an agency chooses “ to 2
present its substantive policies to the public often involves the evaluation of 3
alternative public relations policies” and may even require “an analysis of the 4
underlying policy itself.” Majority Op. at 13 (quoting Seife v. Dep’t of State , 298 5
F. Supp. 3d 592, 616 (S.D.N.Y. 2018)). Where communications decisions involve 6

the “exercise of policy

- orient ed judgment,” Grand Cent. P’ship, Inc. v. Cuomo , 7
166 F.3d 473, 482 (2d Cir. 1999) (quotation marks omitted) , the deliberative 8
process privilege may protect deliberations that directly relate to and preced e 9

those decisions

. 10

But not all communications decis ions implicate policy in this way. See 11
New York v. U.S. Dep’t of Commerce , No. 18

- CV

- 2921, 2018 WL 4853891, at *2 12
(S.D.N.Y. Oct. 5, 2018) (“ [N]ot all ‘messaging’ decisions are so intimately bound 13
up with an agency’s central policy mission.”). Sometimes, messaging 14
communications “amount to little more than deliberations over how to spin a 15
prior decision , or merely reflect an effort to ensure that an agency’s statement is 16
consistent with its prior decision.” Id. When that is so , FOIA does not p ermit an 17
agency to invoke the deliberative process privilege to avoid disclosure. 184 The D.C. Circuit recently concluded as much in Reporters Committee for 1

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

- d etermined agency policy” fail to “advance the purposes of 3

the deliberative process privilege

— to allow agency employees to have the 4
candid discussions necessary to make the best possible policy decisions in service 5
of the public.” 3 F.4th 350, 363

– 64 (D.C. Cir. 2021). The facts of Reporters 6

Committee illustrate the point. Among the documents at issue in that appeal 7
were emails discussing proposed changes to a draft letter to the editor that FBI 8
Director James Comey had written to defend the agency’s use of media 9
impersonation as an investigative tactic. The D.C. Circuit concluded that these 10

documents qualified for protection under the deliberative process privilege 11

because they contained a “back

- and

- forth exchange of ideas” that formed “part 12

of an in ternal dialogue about critical judgment calls aimed at advancing the 13
agency’s interests in the midst of a vigorous public debate about an FBI 14
undercover policy with a decidedly uncertain future at the time.” Id. at 363

– 4

. 15
The emails, in other words, did not simply “defend an already

- determined 16
agency policy

. ” I d. at 363

. To the contrary, t he FBI policy at issue was in flux: 17

The FBI was under “significant external pressure” to change its guidelines 185 regarding the impersonation of news media during undercover operations , 1
which it ultimately did. Id. at 363

– 64. 2

As Reporters Committee recognized, however, circumstances like the FBI’s 3
will not always be present when an agency communicates its policies to the 4
public. While the majority suggest s otherwise , see Majority Op. at 18

– 19, agency 5
deliberations over how to communicate and promote existing policies can, in 6

fact , be merely a “des criptive” exercise

— as , for example, when the agency seeks 7
to explain a policy decision that is truly already settled rather than in flux

. In my 8

view, therefore, FOIA compels a flexible approach under which agency 9
messaging records are not always or even presumptively protected by the 10
deliberative process privilege

. Although t hat approach hews closely to the D.C. 11
Circuit’s reasoning in Reporters Committee , I recognize that it depart s from the 12
path taken in New Hampshire Right to Life v. HHS , where the Fir st Circuit 13
referred to an agency’s “decision of how and what to communicate to the public ” 14

as “ a decision in and of itself. ” 778 F.3d 43, 54 (1st Cir. 2015). But such a 15
categorical approach risks expanding Exemption Five so much that it swallows 16
the very purpose of FOIA. 176 Because agencies should not be allowed to withhold messaging documents 1
that merely “discuss, describe, or defend an already

- determined agency policy,” 2
Reps. Comm. , 3 F.4th at 363, I am not persuaded on the present record that the 3

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

9765, 11126, 21815, 22970, 23178, 25096, 25349 , 25605, and 25606. A s the m ajority 5

asserts, t he Vaughn Index entries for these records indicate that they were 6
deliberative documents “created as part of the EPA’s efforts to communicate 7
with people outside the agency about specific policies

. ” Majority Op. at 21

. In 8
my view, t hat description is not enough f or the records to qualify for protection 9

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

make clear that the communications involved more than merely determining 11

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

— for 12
example, by showing that the process of deciding which message to deliver was 13

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

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

would vacate rather than reverse the D istrict C ourt’s decision as to those records 16
and remand for the agency to provide additional explanation consistent with the 17

standard described here. Aside from its fidelity to FOIA’s language, th at 187 standard has the added benefit of incentiviz ing agencies to provide more rather 1

than less information in the ir Vaughn Index, thus exposing agency justifications 2
to the “revealing ‘sunlight’ of public scrutin y.” Mead Data Cent., Inc. v. U.S. 3
Dep’t of Air Force , 566 F.2d 242, 259 (D.C. Cir. 1977). That itself can only further 4
promote the aims of FOIA , which “stack[s] the scales in favor of disclosure and 5
against exemption.” Id. 6

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