Freedom of Information: How Transparent is Government Decision Making?

The federal Freedom of Information Act (5 USC 553 et. seq.) and New York’s Freedom of Information Law (Public Officers Law section 87) require government agencies to provide records to the public upon request. There are exemptions, but the basic policy is that government records should be open to the public. A recent decision by the federal district court for the District of Columbia addresses the scope of the Environmental Protection Agency’s ability to prevent disclosure of documents related how it makes scientific decisions. Center for Biological Diversity v. Environmental Protection Agency, (D. DC March 27, 2019) 2019 WL 1382903.

The case arose out of a freedom of information request in which plaintiff requested “all documents and correspondence” related to assessing the risk of a pesticide named “Enlist Duo” that EPA had determined would have “no effect” on endangered species. EPA searched it records, provided some documents and indicated that some documents were being withheld. After some give and take, plaintiff sued claiming that EPA had violated the freedom of information act by failing to adequately disclose documents. Among the issues before the court was the applicability of the “deliberative process” exemption.

EPA withheld 80 documents based on the deliberative process privilege. This privilege protects inter- or intra-agency memoranda that would not be available to a party in litigation. It thus includes material that would be protected in litigation based on the attorney client privilege and the attorney work product doctrine. These privileges promote open discussion with attorneys and open discussion in the development of legal strategy, without fear that these discussions will be disclosed. EPA argued that the documents reflect policy-making judgements and documents reflecting such judgments are exempt from disclosure. Plaintiff argued that whether the pesticide will have an impact on endangered species is a scientific decision that does not require the application of policy-related judgments. The court agreed with EPA, reasoning that numerous policy-related decisions were necessary for the agency to properly assess the issue of impact. These included decisions regarding what information EPA would view as relevant to the decision, what conditions of use would be used to determine that this use has no effect, and what risk avoidance factors would be utilized. The plaintiff’s argument was that factual information has to be disclosed. There is nothing deliberative about it. The court’s conclusion, however, is that because the process of collecting and assessing facts can be deliberative, there are times when the facts will reveal enough of that deliberative process to be protected.

Freedom of information requests can be an important tool for the regulated community and formulating a request to obtain the most of what you want is an important skill. The deliberative process exemption, however, means that the regulated community is entitled to know the results of the agency’s decision making process, but not necessarily who said what to whom along the way.