FOIA, in contrast, serves a slightly different purpose and entitles a citizen to request and obtain non-privileged documents that were before an agency, including those which may not have necessarily have been relied upon for the agency determination, and production under FOIA is specific to the actual requests made. See Oceana, Inc. v. Locke, 634 F. Supp.2d 49, 55 (D.D.C. 2009) (Stating that "[j]ust because predecisional and deliberative documents may have been responsive to plaintiff's] broad FOIA request does not mean that the Agency's decisionmakers considered those documents when [making their decision].") (citation omitted). In light of the foregoing, although to a some degree overlapping productions were indeed required in this case, there was no obligation on the part of the defendants to specially collate or cross-reference the two.
See, e.g., In re Subpoena Duces Tecum, 156 F.3d 1279, 1279 (D.C. Cir. 1998) ("Agency deliberations not part of the record are deemed immaterial."); Portland Audubon Soc'y v. Endangered Species Comm., 984 F.2d 1534, 1549 (9th Cir.1993) (noting that "neither the internal deliberative process of the agency nor the mental processes of individual agency members" are proper components of the administrative record); Comprehensive Cmty. Dev. Corp., 890 F. Supp. 2d at 312 ("[C]ourts have consistently recognized that, for the purpose of judicial review of agency action, deliberative materials antecedent to the agency's decision fall outside the administrative record."); Oceana, Inc. v. Locke, 634 F. Supp. 2d 49, 54 (D.D.C. 2009) ("[A]gencies need not place predecisional and deliberative material in the administrative record, so their absence from the record does not mean that the record is 'incomplete.'[]"), rev'd on other grounds, 670 F.3d 1238 (D.C. Cir. 2011); General Elec. Co. v. Jackson, 595 F.Supp.2d 8, 18 (D.D.C. 2009) (rejecting argument that agency's "practice of excluding irrelevant and pre-decisional deliberative documents from the administrative record results in a skewed record," because "irrelevant documents should be excluded from the record," and "an agency generally may exclude material that reflects internal deliberations." (Quotation marks and citation omitted, emphasis in General Elec. Co.); Amfac Resorts, LLC v. Dep't of the Interior, 143 F. Supp. 2d 7, 13 (D.D.C. 2001) (stating that "deliberative intra-agency memoranda and other such records are ordinarily privileged and need not be included in the record").
Opposition at 1–2, 7–8 (citing FTC v. Warner Communications , 742 F.2d 1156, 1161 (9th Cir. 1984) (per curiam)). It rejects Plaintiffs' assertion that the deliberative processes privilege is not available in APA cases brought under Section 706(2), arguing that "[c]ourts in this Circuit and elsewhere have consistently upheld the assertion of the deliberative process privilege in the APA judicial review context."Id. at 9 (citing CBD I , No. 14–cv–02506–RM (D. Ariz. June 14, 2016); Center for Biological Diversity v. U.S. Army Corps of Engineers , No. 14-cv-1667 PSG, 2015 WL 3606419, at *3 (C.D. Cal. Feb. 4, 2015) ("CBD II "); Modesto Irrigation Dist. v. Gutierrez , No. 06-cv-00453 OWW DLB, 2007 WL 763370, at *12 (E.D. Cal. Mar. 9, 2007) ; Oceana, Inc. v. Locke , 634 F.Supp.2d 49, 52 (D.D.C. 2009) ; Overton Park , 401 U.S. at 420, 91 S.Ct. 814 ; San Luis Obispo Mothers for Peace v. U.S. Nuclear Regulatory Commission , 789 F.2d 26, 45 (D.C. Cir. 1986) ; Norris & Hirshberg, Inc. v. SEC , 163 F.2d 689, 693 (D.C. Cir. 1947) ). The Service notes that "the Ninth Circuit has also upheld the withholding of documents under the deliberative process privilege in other contexts, such as discovery ... and [FOIA] responses."
Because privileged materials are ordinarily not part of the administrative record, see Town of Norfolk, 968 F.2d at 1458, some courts have concluded that they “do not need to be logged as withheld from the administrative record.” Oceana, 920 F.3d at 865 (citing Oceana, Inc. v. Locke, 634 F.Supp.2d 49, 52 (D.D.C. 2009), rev'd on other grounds, 670 F.3d 1238 (D.C. Cir. 2011)); see also Great Am. Ins. Co. v. United States, No. 12-cv-09718, 2013 WL 4506929 (N.D. Ill. Aug. 23, 2013) (“[R]equiring [defendant] to identify and describe on a privilege log all of the deliberative documents would invite speculation into an agency's predecisional process and potentially undermine the limited nature of review available under the APA.”); Tafas v. Dudas, 530 F.Supp.2d 786, 794 (E.D. Va. 2008)
Prior to granting summary judgment for defendants, this Court affirmed, over Oceana's objections, the magistrate judge's decision denying Oceana's motion to compel completion of the administrative record. Oceana v. Locke et al., 634 F.Supp.2d 49, 51 (D.D.C. 2009), affirmingOceana v. Locke et al., No. 08–cv–318, 2009 WL 1491516 (D.D.C. May 28, 2009) (Kay, M.J.). The Court of Appeals expressly did not reach the merits of the denial of the motion to compel when it reviewed the grant of summary judgment. Oceana II, 670 F.3d at 1243.
The District Court correctly observed that "predecisional and deliberative documents ‘are not part of the administrative record to begin with,’ so they ‘do not need to be logged as withheld from the administrative record.’ " J.A. 18 (citing Oceana, Inc. v. Locke , 634 F.Supp.2d 49, 52 (D.D.C. 2009), rev’d on other grounds , 670 F.3d 1238 (D.C. Cir. 2011) ). As we have held, on arbitrary and capricious review, absent a showing of bad faith or improper behavior, "[a]gency deliberations not part of the record are deemed immaterial."
Oceana filed suit in the district court claiming the Amendment violates the Fisheries Act, the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A), and the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332. The district court rejected all of Oceana's statutory claims, 725 F. Supp. 2d 46 (2010), as well as its "Motion to Compel Completion of the Record" with documents the Service contends are privileged, 634 F. Supp. 2d 49 (2009). Oceana appeals both rulings.
We also find that the District Court did not abuse its discretion by declining to require that the Fisheries Service include on a privilege log those documents that the agency excluded from the administrative record because they were deemed predecisional and deliberative. The District Court correctly observed that "predecisional and deliberative documents ‘are not part of the administrative record to begin with,’ so they ‘do not need to be logged as withheld from the administrative record.’ " J.A. 18 (citing Oceana, Inc. v. Locke , 634 F. Supp. 2d 49, 52 (D.D.C. 2009), rev'd on other grounds , 670 F.3d 1238 (D.C. Cir. 2011) ). As we have held, on arbitrary and capricious review, absent a showing of bad faith or improper behavior, "[a]gency deliberations not part of the record are deemed immaterial."
Relying on cases from the District of Columbia and Virginia district courts, the USCIS Defendants argue that privileged materials do not become part of the administrative record in APA cases, and therefore they have no obligation to provide a privilege log. See, e.g., Am. Petroleum Tankers Parent, LLC v. United States, 952 F. Supp. 2d 252, 265 (D.D.C. 2013) ("It is well established in this District that materials protected by the deliberative process privilege are not part of the Administrative Record for purposes of review of agency action . . . As a corollary to this principle, the agency need not provide a privilege log of the documents withheld pursuant to the privilege."); Tafas v. Dudas, 530 F. Supp. 2d 786, 794 (E.D. Va. 2008) ("A complete administrative record, however, does not include privileged materials, such as documents that fall within the deliberative process privilege, attorney-client privilege, and work product privilege."); Oceana, Inc. v. Locke, 634 F. Supp. 2d 49, 52-53 (D.D.C. 2009), rev'd on other grounds, 670 F.3d 1238 (D.C. Cir. 2011) ("[P]redecisional and deliberative documents 'are not part of the administrative record to begin with,' so they 'do not need to be logged as withheld from the administrative record.' . . . The Court therefore rejects plaintiff's dual arguments that the predecisional and deliberative documents must be placed in the administrative record and that the Agency must prepare a privilege log that lists those documents that are not included in the record.") (quoting Nat'l Ass'n of Chain Drug Stores v. U.S. Dep't of Health & Human Servs., 631 F.Supp.2d 23, 27 (D.D.C. 2009)). On the other hand, the Pitman Plaintiffs cite cases from various other district courts, including within the Tenth Circuit, that have required the government to produce a privilege log to substantiate privilege claims made with respect to documents or portions of documents withheld from the administrative record.
Given the uncertainty surrounding this email, the Court will order the agency to submit it for in camera review rather than order BLM to produce a revised privilege log. See Oceana, Inc. v. Locke, 634 F.Supp.2d 49, 51 (D.D.C.2009) (in camera review appropriate for documents withheld from the administrative record on the basis of attorney-client privilege), rev'd on other grounds, 670 F.3d 1238 (D.C.Cir.2011).Similarly, the privilege log states that an email was sent on February 23, 2015 from Ms. Sauls to BLM staff member Kent Walter, again, neither of whom is an attorney.