Chapter 4 Deliberating the Administrative Record and Deliberative Materials

JurisdictionUnited States
Chapter 4 Deliberating the Administrative Record and Deliberative Materials

Leilani Doktor
U.S. Department of Justice
Washington, D.C.

LEILANI DOKTOR is a trial attorney at the U.S. Department of Justice's Environment and Natural Resources Division (ENRD). She is currently on detail to the Department of Interior's Office of the Solicitor advising on mineral resources and public lands issues. In her work as a trial attorney, Leilani served as the lead counsel on a range of NEPA cases varying from challenges to resource management plans and national rulemakings to permitting and mining patents. In those cases, she has litigated the sufficiency of the administrative record in eight district courts. Before joining ENRD, Leilani worked as an environmental consultant facilitating federal consultation with Native Hawaiians, drafting analysis for environmental impact statements, and mediating state-level natural resource use conflicts. She also has conducted research on the impacts of sea level rise in the South Pacific and currently volunteers as a board advisor to Hohonu, a public-private partnership developing solar powered sea level rise monitoring technology.

I. Introduction

Courts agree that the administrative record provides the basis for reviewing a Federal agency action under the Administrative Procedure Act (APA).1 But what goes into the administrative record is still being defined. Specifically, whether deliberative materials, i.e. predecisional, internal, agency communications and documents, belong in the administrative record remains an open question outside of D.C. Circuit. The case law on this topic is rapidly evolving as district courts across the country provide their opinions on the matter.2 This paper explains and surveys the current Federal case law on the topic—demonstrating that whether deliberative documents form a part of the administrative record in APA cases is still a hotly debated question in most Federal courts.

II. Background

A. Administrative Records under the Administrative Procedure Act

Under the APA, Congress directed that courts evaluate agency action upon "the whole record or those parts of it cited by a party."3 Although the APA itself provides little guidance on the creation and compilation of the "whole record" - or "administrative record" as it has come to be known - for informal agency actions, the administrative record concept has evolved over time through judicial interpretation and agency practice. It is a settled principle of administrative law that judicial review is based upon the "full administrative record that was before [the agency] at the time [it] made [its] decision."4 The Supreme Court has emphasized that "the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court."5

The contents of the administrative record are important because the validity of the agency's action must stand or fall on the propriety of the agency's stated reasons at the time it made its


decision.6 Because of the impact the administrative record can have on the outcome of an APA case, it is frequently contested ahead of or at the summary judgment stage of litigation.

The compilation and designation of the administrative record, like any agency action, is entitled to a presumption of regularity.7 Meaning that courts assume the agency properly designated the administrative record absent clear evidence to the contrary. The party challenging the administrative record has the burden to rebut that presumption with clear evidence.8

Challenges to the agency's administrative record often seek to include documents that the party alleges the agency did consider and failed to include in the administrative record. These are termed "Motions to Complete" the administrative record and must overcome the presumption of regularity. Alternatively, a party may seek to include documents not considered by the agency that it believes are relevant or necessary for the court's review. These are termed "Motions to Supplement" the administrative record and are subject to the narrow exceptions that allow a court to consider extra record evidence in reviewing an agency action.9

B. "Deliberative" Materials

In a 2017 Memorandum addressing the Price decision, the U.S. Department of Justice affirmed its position that deliberative materials and ancillary internal agency documents and communications are not part of the administrative record.10 The Price Memo describes deliberative materials as any materials reflecting the agency's predecisional deliberative process. This category is broader than and distinct from those documents that would be protected by the deliberative process privilege under the Freedom of Information Act or in the course of discovery pursuant to the Federal Rules of Civil Procedure.11 The decision making agency compiles and maintains the administrative record for each decision making process.

For example, in a typical National Environmental Policy Act (NEPA) decision approving a mining plan of operations, the record for the decision might include, at a bare minimum: (1) the project proponents proposed mining plan of operations, accompanied by dozens of exhibits providing extensive data and expert reports; (2) the Environmental Impact Statement produced


by agency program staff analyzing the plan accompanied by detailed background documents and appendices; (3) correspondence, and supporting information, by interested parties regarding the proposed plan; (4) background studies and reports directly relevant to the agency decision; (5) GIS shapefiles, maps, and images, (6) public notices, comments, and responses to the public comments; and (7) the agency's decision record. Beyond those obviously relevant documents the agency may include work papers, e-mails, and documents generated in prior, similar agency actions, that were considered by the agency. But the administrative record would not contain all the ancillary internal materials such as emails between agency staff that do not contain factual or substantive information the agency considered in making the decision. Consequently, the administrative record may total tens of thousands of pages even without deliberative materials.

Deliberative materials may be included in the administrative record in narrow circumstances. First, when there has been a strong showing of agency bad faith.12 Second, when deliberative documents contain "factual information not otherwise in the record."13 Third, when the deliberative document "memorializes or evidences the policy the agency ultimately adopts on an issue or because the agency used the document in its dealings with the public.'"14

III. Discussion

In determining the sufficiency of the administrative record, a court must first apply the correct standard for the scope of the administrative record. While most courts recognize that the administrative record is "the record that was before [the agency] at the time [it] made [its] decision,"15 whether deliberative materials are within the scope of the administrative record remains an open question. Thus far, only the D.C. Circuit has issued direct binding precedent on the deliberative materials question. Absent other binding case law, courts across the country have developed several different approaches to the administrative record. Those different approaches are surveyed and summarized here.

A. The D.C. Circuit is the only circuit with binding precedent on the scope of the administrative record.

The D.C. Circuit has held that deliberative materials generally should not be included in the administrative record.16 The D.C. Circuit provides two reasons for excluding deliberative


materials from the administrative record. First, it encourages uninhibited and frank discussion of legal and policy matters.17 Because "requiring the inclusion of deliberative materials in the administrative record would pressure agencies to conduct internal discussions with judicial review in mind, rendering 'agency proceedings . . . useless both to the agency and to the courts."18 The D.C. Circuit analogizes that excluding deliberative materials from the administrative record shields agency deliberations in the same way that judicial deliberations are protected from disclosure.19 The Sixth Circuit has adopted this approach acknowledging that, "deliberative process materials are generally exempted from inclusion in the record in order to protect the quality of agency decisions by ensuring open and candid communications."20

Second, the D.C. Circuit reasons that an agency's internal deliberations are irrelevant because the reviewing court's task under the APA is to assess the agency's stated reasons against the evidence the agency decision-maker considered in the course of the decision process.21 Documents reflecting internal deliberations, however, merely reflect consideration of the evidence in the record, are not themselves evidence or the stated reasons for the agency decision.22 Because those internal deliberations are not relevant to the Court's review, the materials do not belong in the administrative record.

The D.C. Circuit has also held that because these materials fall outside the scope of the record, they are not being withheld from the record and therefore do not need to be placed into a log.23 Because the agency is not invoking a privilege, a privilege log is improper.24 This holding applies regardless of whether the materials could be in fact privileged but, if the agency does invoke privileges, a privilege log is required.25


B. The Ninth and Tenth Circuit's standard allows for a broader construction of what materials belong in the administrative record.

Outside of the D.C. Circuit, courts have applied an alternative construction of the standard for the scope of the record. Most prominently, the 9th and 10th Circuit have held that the administrative record "consists of all...

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