Oceana, Inc. v. Ross

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 OCEANA, INC., Case No. 19-cv-03809-LHK (SVK)

8 Plaintiff, ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S 9 v. MOTION TO COMPEL PRODUCTION OF DOCUMENTS 10 WILBUR L. ROSS, et al., WITHHELD FROM SECOND SUPPLEMENTAL 11 Defendants. ADMINISTRATIVE RECORD 12 Re: Dkt. No. 60

13 On April 2, 2020, Plaintiff Oceana, Inc. filed this motion to compel production of ten 14 documents that were withheld from Defendants’ second supplemental administrative record on the 15 basis of the deliberative process privilege. Dkts. 58-1, 60. On April 23, 2020, Defendants filed an 16 opposition indicating that they would release two of the ten documents at issue, bringing the 17 number of documents in dispute to eight. Dkt. 65. Pursuant to this Court’s order setting the 18 briefing schedule (Dkt. 62), Defendants also submitted the disputed documents for possible in- 19 camera review. The Court finds this matter suitable for decision without oral argument pursuant 20 to Civil Local Rule 7-1(b). The Court GRANTS IN PART and DENIES IN PART Plaintiff’s 21 motion to compel production of documents for the reasons set forth below. 22 I. LEGAL STANDARD 23 A. Deliberative Process Privilege 24 The deliberative process privilege “was developed to promote frank and independent 25 discussion among those responsible for making governmental decisions . . . and also to protect 26 against premature disclosure of proposed agency policies or decisions.” F.T.C. v. Warner 27 Commc’ns, Inc., 742 F.2d 1156, 1161 (9th Cir. 1984) (citations omitted). “By maintaining the 1 policy, the deliberative process privilege . . . encourages frank and open discussions of ideas, and, 2 hence, improves the decisionmaking process.” Nat’l Wildlife Fed’n v. U.S. Forest Serv., 861 F.2d 3 1114, 1117 (9th Cir. 1988) (citation omitted). “[T]he deliberative process privilege has been held 4 to cover all recommendations, draft documents, proposals, suggestions and other subjective 5 documents which reflect the personal opinions of the writer rather than the policy of the agency, as 6 well as documents which would inaccurately reflect or prematurely disclose the views of the 7 agency.” Id. at 1118-19 (citations and internal quotation marks omitted). 8 For the deliberative process privilege to apply, a document must meet two requirements. 9 Warner, 742 F.2d at 1161 (citations omitted). “First, the document must be predecisional—it 10 must have been generated before the adoption of an agency’s policy or decision.” Id. “Second, 11 the document must be deliberative in nature, containing opinions, recommendations, or advice 12 about agency policies.” Id. “The privilege does not cover [p]urely factual material that does not 13 reflect the deliberative process.” Desert Survivors v. U.S. Dep’t of the Interior, 231 F. Supp. 3d 14 368, 379 (N.D. Cal. 2017) (citations and internal quotation marks omitted and alteration in 15 original). “On the other hand, the privilege applies where the factual material is so interwoven 16 with the deliberative material that it is not severable.” Id. (citations and internal quotation marks 17 omitted). “These twin requirements recognize that the underlying purpose of this privilege is to 18 protect[ ] the consultative functions of government by maintaining the confidentiality of advisory 19 opinions, recommendations, and deliberations comprising part of a process by which 20 governmental decisions and policies are formulated.” National Wildlife Federation, 861 F.2d at 21 1117 (citation and internal quotation marks omitted and alteration in original). 22 “The deliberative process privilege is a qualified one. A litigant may obtain deliberative 23 materials if his or her need for the materials and the need for accurate fact-finding override the 24 government’s interest in non-disclosure.” Warner, 742 F.2d at 1161 (citations omitted). The 25 specific factors to be considered in making this determination are examined below. See infra 26 Part I.C. 27 //// 1 B. Administrative Procedures Act 2 A court examines final agency actions under the “arbitrary and capricious” standard 3 prescribed by the Administrative Procedures Act (“APA”). 5 U.S.C. § 706(2)(A); Friends of 4 Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 980-81 (9th Cir. 1985). The APA mandates 5 that a court “shall” set aside any agency decision that it finds “arbitrary, capricious, an abuse of 6 discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Section 706 states 7 that in making such a determination, “the court shall review the whole record or those parts of it 8 cited by a party . . . . ” 5 U.S.C. § 706. “The whole record includes everything that was before the 9 agency pertaining to the merits of its decision.” Portland Audubon Soc. v. Endangered Species 10 Comm., 984 F.2d 1534, 1548 (9th Cir. 1993) (citing Thompson v. U.S. Dep’t of Labor, 885 F.2d 11 551, 555-56 (9th Cir. 1989)) (internal quotation marks omitted). “[I]n many cases[,] internal 12 comments, draft reports, inter- or intra-agency emails, revisions, memoranda, or meeting notes 13 will inform an agency’s final decision.” Inst. for Fisheries Res. v. Burwell, No. 16-cv-01574-VC, 14 2017 WL 89003, at *1 (N.D. Cal. Jan. 10, 2017). Indeed, “internal materials are part of the 15 ‘universe of materials’ considered by the agency . . . and must be included in the administrative 16 record unless omitted on the basis of privilege.” Ctr. for Envtl. Health v. Perdue, No. 18-cv- 17 01763-RS, 2019 WL 3852493, at *2 (N.D. Cal. May 6, 2019) (citations omitted). 18 C. Deliberative Process Privilege in APA Cases 19 “There is a tension between the court’s duty to consider whether the decision was based on 20 a consideration of the relevant factors . . . on the one hand, and a privilege that protects from 21 disclosure deliberative documents reflecting the factors the agency considered in making its 22 decision.” Desert Survivors, 231 F. Supp. 3d at 382 (citations and internal quotation marks 23 omitted). “There can be no doubt that under some circumstances, pre-decisional deliberative 24 communications may go to the heart of the question of whether an agency action was arbitrary and 25 capricious, an abuse of discretion or otherwise inconsistent with the law under Section 706(2) of 26 the APA.” Id. Thus, “the appropriate way to address these circumstances is through in camera 27 review and a rigorous application of the balancing test set forth in Warner rather than rejecting the 1 also Ctr. for Envtl. Health v. Perdue, No. 18-cv-01763-RS (TSH), 2019 WL 6114513, at *2 (N.D. 2 Cal. Nov. 18, 2019). 3 The Warner factors “offer[] an approach that allows courts to balance the need to conduct 4 a meaningful review of agency decision-making under Section 706 of the APA against the 5 possibility that disclosure might give rise to a chilling effect that threatens the quality of agency 6 actions.” Desert Survivors, 231 F. Supp. 3d at 383. These factors include: “(1) the relevance of 7 the evidence; (2) the availability of other evidence; (3) the government’s role in the litigation; and 8 (4) the extent to which disclosure would hinder frank and independent discussion regarding 9 contemplated policies and decisions.” Warner, 742 F.2d at 1161 (citations omitted). 10 For the first factor, relevance, the Court must “look to the nature of the withheld 11 documents and the context in which the communications were made to determine their relevance 12 to Plaintiff[’s] claim under Section 706(2) of the APA.” Desert Survivors, 231 F. Supp. 3d at 384. 13 The second factor – the availability of other evidence – may be addressed in “a relatively 14 conclusory manner . . . where the other Warner factors strongly support the assertion of the 15 deliberative process privilege.” Id. at 384-85. “[I]n closer cases—for example, where the 16 withheld documents contain information that is highly relevant to the plaintiff's claims—a more 17 detailed showing that the same information is available elsewhere may be required.” Id. at 385. 18 The third factor – the nature of the government’s role in the litigation – “will normally tip against 19 the government in an APA case where the government is the defendant whose actions are being 20 challenged.” Center for Environmental Health, 2019 WL 6114513, at *3 (citing Desert Survivors, 21 231 F. Supp. 3d at 385). 22 It is the fourth factor which this Court finds most challenging. It “asks whether the 23 disclosure of a document or communication is likely to have a chilling effect.” Desert Survivors, 24 231 F. Supp. 3d at 385. “[T]he disclosure of some types of documents will be less likely to cause 25 embarrassment or chilling than others.” Id. (citation omitted). “The disclosure of preliminary 26 drafts is not likely to chill speech, even though such documents might be used to recreate the 27 course of the decisionmaking process because [t]hese are relatively polished drafts, and the 1 Environmental Health, 2019 WL 6114513, at *3 (citing Desert Survivors, 231 F. Supp. 3d at 385) 2 (citation and internal quotation marks omitted). “On the other hand, disclosure of preliminary 3 staff views or tentative opinions might chill speech.” Center for Environmental Health, 2019 WL 4 6114513, at *3 (citing Desert Survivors, 231 F. Supp. 3d at 385) (citation and internal quotation 5 marks omitted). “These documents represent the give-and-take of the agencies’ internal 6 deliberations, and their disclosure would discourage such deliberations.” Center for 7 Environmental Health, 2019 WL 6114513, at *3 (citing Desert Survivors, 231 F. Supp. 3d at 385) 8 (citation omitted). 9 II. ANALYSIS 10 A. Documents at Issue 11 Heeding the guidelines set forth above, the Court now turns to its review of the eight 12 documents still at issue. As all documents were submitted to the Court for in camera review, the 13 Court’s discussion of each document will be limited. 14 As a preliminary matter, the parties disagree as to whether the documents in question are 15 “deliberative.” Dkt. 60 at 8-11; Dkt. 65 at 6-10. Plaintiff takes issue with the limited information 16 provided by Defendants on the privilege log, which the Court addresses below. See infra Part 17 II.B. As a result, Plaintiff’s argument on this point is necessarily made in a vacuum because it has 18 not seen the documents in question. However, the Court finds that the parties have presented their 19 arguments with sufficient clarity such that the Court may evaluate the documents at issue and, as 20 noted below, apply the arguments to its in-camera review. In doing so, the Court has provided 21 descriptions of the documents that are far more meaningful than the descriptions provided by 22 Defendants and do not reveal privileged information. 23 Plaintiff contends that the documents are “merely examples of scientists discussing factual 24 or scientific matters and in no way implicate agency decision-making.” Dkt. 60 at 9. Plaintiff 25 also contends that the release of these documents would not chill discussion necessary to inform 26 agency policy decisions. Id. Defendants contend that the documents are deliberative “because 27 they contain or reflect the personal opinions, views, and comments of individual Science Center 1 estimates for anchovy for 2017 and 2018” and the release of such materials would, in part, “chill 2 scientific debate in the Science Center and thereby impair agency decision-making for fishery 3 management decisions.” Dkt. 65 at 7 (citations omitted). “The key to the inquiry is whether 4 revealing the information exposes the deliberative process.” Desert Survivors v. U.S. Dep’t of the 5 Interior, No. 16-cv-01165-JCS, 2017 WL 1549373, at *2 (citing Assembly of State of Cal. v. U.S. 6 Dep’t of Commerce, 968 F.2d 916, 921 (9th Cir. 1992)). As discussed below, the Court finds that 7 one of the eight documents is not “deliberative” for the purpose of the deliberative process 8 privilege. 9 AR 104 (Email; Revisions to Summer 2018 CCE Survey (1807RL) CPS Biomass Report, 10 dated March 29, 2019). This is an email exchange of editorial comments between various 11 scientists with an attached document. As this document is both predecisional and deliberative, the 12 deliberative process privilege applies. After considering the Warner factors, the Court concludes 13 that the possibility of chilling full and frank discussions outweighs Plaintiff’s need for disclosure. 14 AR 105 (Email; Nearshore biomass estimates and extrapolations, dated March 5, 2019): 15 This is also an email exchange of editorial comments between various scientists. Because this 16 document is both predecisional and deliberative, the deliberative process privilege applies. After 17 considering the Warner factors, the Court concludes that the possibility of chilling full and frank 18 discussions outweighs Plaintiff’s need for disclosure. 19 AR 106 (Email; For review: Summer 2018 (1807RL) CPS Biomass Report, dated March 20 25, 2019): This is an email exchange of editorial comments between various scientists. This 21 document is both predecisional and deliberative, so the deliberative process privilege applies. 22 After consideration of the Warner factors, the Court concludes that the possibility of chilling full 23 and frank discussions outweighs Plaintiff’s need for disclosure. 24 AR 107 (Email; Revised draft of 1807RL Biomass Report, dated January 31, 2019): This 25 is an email exchange of editorial comments between scientists directed to an attachment with raw 26 data. This document and its attachment are both predecisional and, when taken together as is 27 appropriate in this context, deliberative, so the deliberative process privilege applies. After 1 discussions outweighs Plaintiff’s need for disclosure. 2 AR 108 (Email; 2017 report, dated March 18, 2019): This is an email exchange between 3 scientists with both editorial and factual commentary. While this exchange is predecisional, the 4 Court finds that a portion of this document is not deliberative because it is purely factual in nature. 5 Accordingly, the deliberative process privilege only applies to the portion of the email that begins 6 “On Sat, Mar 16, 2019 at 11:34 AM Kevin Stierhoff - NOAA Federal” and all following content. 7 Defendants must redact this privileged information and provide the redacted version to Plaintiff. 8 After considering the Warner factors, the Court concludes that the possibility of chilling full and 9 frank discussions outweighs Plaintiff’s need for disclosure as to the privileged portion. 10 AR 109 (Email; anchovy abundance and biomass plot, dated February 12, 2018): This is 11 an email chain between scientists that contains a plot graphic. This document is predecisional but 12 is not deliberative because the graphic does not evidence deliberative conduct. The disclosure of 13 this document is unlikely to reveal the mental processes of decisionmakers. Additionally, the 14 Court finds little danger of chilling as the document contains only a graphic. Accordingly, 15 Defendants must provide this document to Plaintiff. 16 AR 112 (Partially redacted draft report; Distribution, biomass, and demography of coastal 17 pelagic fishes in the California Current Ecosystem during summer 2018 based on acoustic-trawl 18 sampling, dated March 22, 2019): This document is both predecisional and deliberative, so the 19 deliberative process privilege applies. After considering the Warner factors, the Court concludes 20 that the possibility of chilling full and frank discussions outweighs Plaintiff’s need for disclosure. 21 AR 113 (Partially redacted draft report, Distribution, biomass, and demography of coastal 22 pelagic fishes during summer 2017, estimated from acoustic-trawl sampling, dated November 02, 23 2018): This document is both predecisional and deliberative, so the deliberative process privilege 24 applies. After considering the Warner factors, the Court concludes that the possibility of chilling 25 full and frank discussions outweighs Plaintiff’s need for disclosure. 26 Accordingly, the Court sustains Defendants’ privilege objections as to documents 104, 27 105, 106, 107, 108 (partial), 112, and 113. The Court overrules Defendants’ privilege objections 1 B. Privilege Log 2 Federal Rule of Civil Procedure 26(b)(5)(A) dictates that “[w]hen a party withholds 3 information otherwise discoverable by claiming that the information is privileged... the party 4 || must... describe the nature of the documents, communications, or tangible things not produced or 5 || disclosed —and do so in a manner that, without revealing information itself privileged or 6 protected, will enable other parties to assess the claim.” Fed. R. Civ. P. 26(b)(5)(A). When a 7 || party asserts the deliberative process privilege, the privilege log “must show that (1) the document 8 is privileged and (2) the privilege cannot be overcome by the Warner factors.” Center for 9 Environmental Health, 2019 WL 6114513, at *5. Defendants’ entries as to the documents 10 reviewed in camera do not satisfy this standard. See Dkt. 58; Center for Environmental Health, 11 2019 WL 6114513, at *5-6. However, as noted above, the Court has provided adequate 12 || description for the eight documents in dispute. See supra Part II.A. Defendants are to amend their 13 privilege log accordingly and serve the amended log on Plaintiff as indicated below. II. CONCLUSION 3 15 For the reasons discussed above, the Court finds that Defendants may withhold AR 104, a 16 105, 106, 107, portions of 108, 112, and 113 on the basis of the deliberative process privilege. 3 17 The Court also finds that portions of AR 108 and the entirety of AR 109 are not covered by the S 18 deliberative process privilege and are thus subject to disclosure. Defendants must redact the 19 || privileged information in AR 108 before providing the document to Plaintiff. Defendants must 20 provide to Plaintiff the redacted version of AR 108, the full version of AR 109, and the revised 21 privilege log no later than Friday, May 8, 2020. 22 SO ORDERED. 23 Dated: May 5, 2020 24 Season va fuel SUSAN VAN KEULEN 26 United States Magistrate Judge 27 28