Natural Resource Defense Council v. Environmental Protection Agency, No. 20-422 (2d Cir. 2021)
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The EPA appeals the district court's order requiring EPA to disclose twenty-eight records pursuant to a Freedom of Information Act (FOIA) request submitted by the NRDC. At issue is whether records reflecting an agency's discussions about how to communicate its policies to people outside the agency qualify for the deliberative process privilege and whether an agency must connect a record to a specific contemplated agency decision to claim the privilege.
The Second Circuit concluded that the deliberative process privilege protects otherwise deliberative records that relate to and precede an agency's communications decision about a policy. The court explained that, in the context of a communications decision, a record is deliberative if it reflects discussions about how to communicate the agency's policies to the public or to other stakeholders. The court also held that an agency may invoke the deliberative process privilege by connecting a record either to a specific decision or to a specific decisionmaking process. In this case, the EPA's Vaughn submissions establish that eleven of the "messaging records" subject to the EPA's appeal meet these standards. Accordingly, the court reversed in part, vacated in part, and remanded for further proceedings.
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