Oceana, Inc. v. Pritzker
217 F. Supp. 3d 310
| D.D.C. | 2016Background
- Oceana challenged the NMFS 2015 SBRM omnibus amendment under the APA as arbitrary and capricious, asserting the rule perpetuated flawed bycatch monitoring and underfunding.
- NMFS filed an administrative record and later a supplemented record; the agency omitted numerous predecisional and deliberative documents and did not include a privilege log for many omissions.
- Oceana moved to compel completion of the administrative record, production of omitted documents (including emails and drafts), and a privilege log for withheld materials.
- Defendants conceded existence of many non-record deliberative documents (estimated ~5,000) but argued such materials are not part of the "whole record" and thus need not be logged.
- The court framed the dispute around whether predecisional/deliberative materials belong in the administrative record for arbitrary-and-capricious review and whether a privilege log is required.
- The court denied Oceana’s motion, holding that deliberative materials are excluded from the administrative record absent a showing of bad faith or improper behavior, so no privilege log was required for those omissions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether predecisional/deliberative documents are part of the "whole record" for APA review | Such documents (emails, drafts) were directly/indirectly considered and must be included to complete the record | Deliberative materials are not part of the record in arbitrary-and-capricious cases and thus need not be included | Court held deliberative/predecisional materials are excluded from the administrative record absent bad faith or improper behavior |
| Whether NMFS must produce a privilege log identifying withheld deliberative documents | NMFS must log withheld documents so parties and court can evaluate privilege claims | No log required for deliberative materials because they are not part of the record | Court held no privilege log is required for deliberative materials withheld from the record |
| What showing is required to compel inclusion of deliberative materials | Completion can be compelled by showing specific omitted materials were considered | Agency entitled to presumption of regularity; inclusion requires evidence of bad faith/improper behavior | Court required non-speculative, concrete proof of bad faith to overcome presumption; Oceana did not meet it |
| Burden and reasonableness of agency review/logging of thousands of documents | Plaintiff argued completeness justifies agency review/log | Defendants noted heavy burden and that logging thousands of deliberative docs is unnecessary because they are immaterial as a matter of law | Court considered burden and doctrinal rule and refused to require the agency to log ~5,000 deliberative documents |
Key Cases Cited
- Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402 (whole administrative record is the record before the agency at decision)
- In re Subpoena Duces Tecum Served on Office of Comptroller of Currency, 156 F.3d 1279 (D.C. Cir.) (predecisional/deliberative materials immaterial absent bad faith)
- San Luis Obispo Mothers for Peace v. U.S. Nuclear Regulatory Comm’n, 789 F.2d 26 (D.C. Cir.) (en banc) (requiring showing of bad faith to compel disclosure of internal deliberations)
- Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1 (privilege protects candid internal agency deliberations)
- Florida Power & Light Co. v. Lorion, 470 U.S. 729 (court’s review is confined to the record the agency presents)