Center for Environmental Health v. Vilsack

Background

The United States Department of Agriculture published the Organic Livestock and Poultry Practices Rule in January 2017. The rule was scheduled to take effect in March 2017, but the Department delayed it three times and withdrew it in March 2018. The plaintiffs challenge that withdrawal under the Organic Foods Production Act and the Administrative Procedure Act.

The opinion concerns discovery about the administrative record, not the ultimate legality of the rule’s withdrawal. The court had previously ordered the Department to include materials withheld under the deliberative-process privilege. The Department then produced a privilege log with 1,025 entries. The plaintiffs argued that the Department had not separated factual material from deliberative material, had not adequately described the documents, and that the qualified privilege could be overcome by the plaintiffs’ need for the documents. The parties submitted 15 documents each for the court’s private review.

Legal standard

The deliberative-process privilege protects a document only if it is both predecisional—created before the agency adopted its policy—and deliberative—related to the agency’s policy-formulation process. Factual material is generally not protected if it does not reveal that process, although factual material may remain protected when disclosure would reveal the agency’s evaluation and analysis.

The privilege is qualified, meaning it can be overcome when the need for the materials and accurate fact-finding outweigh the government’s interest in confidentiality. The court applied four balancing factors: the documents’ relevance, the availability of other evidence, the government’s role in the litigation, and the extent to which disclosure could hinder candid government discussions.

Federal Rule of Civil Procedure 26(b)(5)(A) also requires a party withholding otherwise discoverable information on privilege grounds to describe the material sufficiently for the other parties to assess the claim without revealing the protected information itself.

Rulings on the plaintiffs’ selected documents

The court ordered defendants to provide revised privilege-log entries within 14 days for documents 1, 2, 4, 5, 7 through 11, and 13 through 15. The court sustained defendants’ privilege objections as to documents 3, 6, and 12.

For several documents, the court said the log did not explain whether factual portions could be separated from deliberative material or did not provide enough information to apply the balancing factors. The court found document 3 privileged and determined from the document that the balancing factors did not overcome the privilege. It reached the same conclusion for documents 6 and 12. For documents 1 and 7, the court questioned whether the documents were deliberative at all; for document 7, it also stated that the balancing factors did not overcome the privilege because the document was irrelevant.

Rulings on the defendants’ selected documents

The court ordered defendants to provide revised privilege-log entries within 14 days for documents 8, 11, and 12. The court sustained defendants’ privilege objections as to documents 1 through 7, 9, 10, and 13 through 15.

The court found several edited or commented drafts and internal emails to be predecisional and deliberative, with factual information that could not be separated from the deliberative process. For documents 8, 11, and 12, however, the privilege-log descriptions did not provide enough information to determine whether factual information would reveal the deliberative process or whether the balancing factors overcame the privilege.

Additional instructions

For the documents requiring revised entries, defendants must provide the revised entries to both the court and the plaintiffs. If an entry states that the withheld information appears elsewhere in the administrative record, defendants must also submit those related record documents to the court so it can rule on the remaining privilege issues.

For the rest of the privilege log, the court ordered defendants to revise the entries within 60 days consistent with the opinion’s guidance. The court rejected defendants’ argument that the revisions would be too burdensome, explaining that Rule 26 required sufficient descriptions and that inadequate descriptions could improperly turn a qualified privilege into an absolute one.