National Council of Negro Women et al v. Buttigieg et al

Filing 58

ORDER granting Plaintiffs' Motion to Compel Privilege Log 15 . Defendants must produce a privilege log identifying deliberative materials withheld from the administrative record by no later than April 17, 2024. Signed by Magistrate Judge Bradley W. Rath on 3/26/2024 (rjc)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
NATIONAL COUNCIL OF NEGRO
WOMEN, EDUCATION,
ECONOMICS, ENVIRONMENTAL,
CLIMATE AND HEALTH
ORGANIZATION, HEALTHY GULF,
and SIERRA CLUB
v.

PLAINTIFFS

Case No. 1:22-cv-314-HSO-BWR

PETER BUTTIGIEG and U.S.
DEPARTMENT OF
TRANSPORTATION

DEFENDANTS

ORDER GRANTING PLAINTIFFS’
MOTION TO COMPEL PRIVILEGE LOG [15]
BEFORE THE COURT is a Motion to Compel Privilege Log [15] and
Memorandum [16], filed by Plaintiffs National Council of Negro Women; Education,
Economics, Environmental, Climate and Health Organization; Healthy Gulf; and
Sierra Club (collectively, Plaintiffs). Defendants Peter Buttigieg and U.S.
Department of Transportation (collectively, Defendants) filed a Response [55] and
Memorandum [56] and Plaintiffs a Reply [57]. Having considered the parties’
submissions, the record, and relevant law, Plaintiffs’ Motion to Compel Privilege Log
is granted. Defendants must produce a privilege log for materials withheld based on
the deliberative process privilege.
I. BACKGROUND
This litigation concerns the U.S. Department of Transportation’s decision to go
forward with an “Airport Road Extension” project in Gulfport, Mississippi. Compl. [1]

at 3. Plaintiffs challenge the U.S. Department of Transportation’s decision as
violating the Administrative Procedure Act (APA), 5 U.S.C. § 706, and the National
Environmental Policy Act, 42 U.S.C. § 4321-4370m. Id. at 13-22. Plaintiffs request
that the decision be vacated and set aside. Id. at 22.
Defendants designated and produced the administrative record and did “not
include[] documents subject to the deliberative process privilege” nor identify in a
privilege log or index the documents withheld as deliberative. Pls.’ Mem. [16] at 15.
To the administrative record, Defendants attached the Declaration of Donald E.
Davis (Davis), Division Administrator, Federal Highway Administration (FHWA),
Mississippi Division. Ex. [14-1] at 1-2. Davis avers that he “oversaw the coordination
and compilation of FHWA’s Administrative Record for the project. The record
includes approximately 702 documents comprising 18,428 pages.” Id. at 2. Davis’s
Declaration provides that “[t]o the best of my knowledge, and with the exception of
materials subject to the deliberative process privilege, the Administrative Record
contains the documents upon which I relied directly or indirectly in issuing the June
2022 Preliminary [Environmental Assessment (EA)] and the September 2022 Final
EA and [Finding of No Significant Impact (FONSI)].” Id.
Plaintiffs seek “an order requiring the Federal Defendants to prepare the
standard privilege log contemplated by the Case Management Order and to the
extent necessary submit any documents to the Court for in camera review.” Pls.’ Mem.
[16] at 6. Plaintiffs acknowledge that some documents Defendants withheld may be
protected by the deliberative process privilege but argue that Defendants “must

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establish the procedural and factual predicate for the privilege and give the opposing
party the opportunity to challenge the claim of privilege, show that factual
information is involved, or prove an exception.” Id. at 12 (quoting Desert Survivors v.
U.S. Dep’t of the Interior, 231 F. Supp. 3d 368, 382 (N.D. Cal. 2017)); see Pls.’ Reply
[57] at 15.
Defendants counterargue that the agency is responsible for designating the
contents of the administrative record, and “‘an agency’s designation of the
administrative record is [ ] entitled to the presumption of administrative regularity,’
meaning that – ‘absent clear evidence to the contrary – the court assumes the agency
properly designated the record.’” Defs.’ Mem. [56] at 9 (quoting Exxon Mobil Corp. v.
Mnuchin (Mnuchin I), No. 3:17-cv-1930-JJB, 2018 WL 10396585, *2 (N.D. Tex. June
26, 2018)). Defendants maintain that “because deliberative materials are outside the
scope of the administrative record in the first instance, Defendants did not exclude
such materials from the administrative record based on an invocation of privilege,
and therefore did not need to include such documents in a privilege log.” Id. at 10
(emphasis in original). Defendants urge that deliberative documents are irrelevant
to judicial review. Id. at 13-16.
II. DISCUSSION
Under the APA, a district court is empowered to “hold unlawful and set aside
agency action, findings, and conclusions found to be – (A) arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). In
making such a determination, “the court shall review the whole record or those parts

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of it cited by a party.” 5 U.S.C. § 706. “[A] presumption of regularity attaches to the
actions of Government agencies,” U.S. Postal Serv. v. Gregory, 534 U.S. 1, 10, (2001)
(citing United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926)), “[b]ut
that presumption is not to shield [the agency’s] action from a thorough, probing, indepth review.” Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971),
abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977).
[I]n reviewing agency action, a court is ordinarily limited to evaluating
the agency’s contemporaneous explanation in light of the existing
administrative record. That principle reflects the recognition that
further judicial inquiry into “executive motivation” represents “a
substantial intrusion” into the workings of another branch of
Government and should normally be avoided.
Dep’t of Com. v. New York, 139 S. Ct. 2551, 2573 (2019) (internal citations omitted)
(first citing Vermont Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435
U.S. 519, 549 (1978); then Camp v. Pitts, 411 U.S. 138, 142-143 (1973) (per curiam);
and then quoting Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 268 n.18
(1977); and then citing Overton Park, 401 U.S. at 420). “The grounds upon which an
administrative order must be judged are those upon which the record discloses that
its action was based.” Biden v. Texas, 597 U.S. 785, 812 (2022) (quoting SEC v.
Chenery Corp., 318 U.S. 80, 87 (1943)).
Agencies may withhold under the deliberative process privilege “documents
‘reflecting advisory opinions, recommendations and deliberations comprising part of
a process by which governmental decisions and policies are formulated.’” NLRB v.
Sears, Roebuck & Co., 421 U.S. 132, 150 (1975) (quoting Carl Zeiss Stiftung v. V. E.
B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C 1966)). The deliberative process
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privilege’s purpose “is to prevent injury to the quality of agency decisions.” Id. at 151.
In APA record review actions under 5 U.S.C. § 706, federal circuit and district courts
(some within the same circuit) are split on whether documents withheld by an agency
as deliberative must be accounted for in a privilege log. See infra at pp. 9-13. The
parties acknowledge that no precedent binding on this Court has addressed the issue.
See generally Pls.’ Mem. [16]; Defs.’ Mem. [56]; Pls.’ Reply [57]. Defendants press the
Court to adopt the view that deliberative documents are irrelevant, while Plaintiffs
argue that deliberative documents are relevant, albeit privileged where the privilege
is established. Defs.’ Mem. [56] at 13-16; Pls.’ Mem. [16] at 10-12, 14, 16-17. Plaintiffs
submit that because deliberative documents are relevant, Federal Rule of Procedure
26(b)(5)(A) applies, which permits a party to withhold information on grounds of
privilege if the withholding party expressly asserts the privilege in a log that
describes the documents without revealing privileged information. Pls.’ Mem. [16] at
12-14.
The deliberative process privilege has mostly been addressed within the
context of cases brought under the Freedom of Information Act (FOIA) because the
privilege was statutorily incorporated as Exemption 5, 5 U.S.C. § 552(b)(5).
Exemption 5 exempts from disclosure “inter-agency or intra-agency memorandums
or letters that would not be available by law to a party other than an agency in
litigation with the agency, provided that the deliberative process privilege shall not
apply to records created 25 years or more before the date on which the records were
requested.” 5 U.S.C. § 552(b)(5).

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Plaintiffs claim that the reasoning in two FOIA cases decided by the Fifth
Circuit should be followed. In both, the Fifth Circuit found that more than an agency’s
“say so” is required to sustain its deliberative process privilege claims. In Stephenson
v. IRS, the IRS withheld categories of documents it claimed were exempt under the
deliberative process privilege. 629 F.2d 1140 (5th Cir. 1980). The district court denied
the plaintiffs’ motion for a “Vaughn index” that listed the documents responsive to
the request and explained why portions had been withheld, a concept derived from a
line of opinions following Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). 629 F.2d at
1142-45. On appeal, the Fifth Circuit remanded, holding that “[r]esort to in camera
review is discretionary, as is resort to a Vaughn index. However, as this case clearly
demonstrates, in instances where it is determined that records do exist, the District
Court must do something more to assure itself of the factual basis and bona fides of
the agency’s claim of exemption than rely solely upon an affidavit.” Id. at 1145
(internal citation omitted) (citing N.L.R.B. v. Robbins Tire & Rubber Co., 437 U.S.
214, 224 (1978)).
In Batton v. Evers, the Fifth Circuit, relying on Stephenson, found that the
agency’s presumption of legitimacy “does not relieve the withholding agency of its
burden of proving that the factual information sought falls within the statutory
exemption asserted.” 598 F.3d 169, 175-76 (5th Cir. 2010). Batton held that:
a court abuses its discretion by refusing to order a Vaughn index or
similar procedure when it relies “upon agency affidavit in an
investigative context when alternative procedures such as sanitized
indexing, random or representative sampling in camera with the record
sealed for review, oral testimony or combination thereof would more
fully provide an accurate basis for decision.”
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Id. at 178 (quoting Stephenson, 629 F.2d at 1144). Batton provided that “the IRS may
not simply rely on a presumption of good faith to prove the applicability of an
exemption. In other words, while we assume that the IRS is telling the truth in its
affidavits, its conclusory ‘say so’ does not, alone, carry its burden of establishing an
exemption.” Id. at 179 (internal citation omitted) (citing Cooper Cameron Corp. v.
U.S. Dep’t of Labor, OSHA, 280 F.3d 539, 543 (5th Cir. 2002)).
Defendants counterargue that the Court should not rely on FOIA cases because
FOIA emphasizes “every scrap of paper that could or might have been created,” while
judicial review actions are confined to the administrative record. Defs.’ Mem. [56] at
14 (citing TOMAC v. Norton, 193 F. Supp. 2d 182, 195 (D.D.C. 2002)). By statute,
FOIA provides that the court “may examine the contents of such agency records in
camera to determine whether such records or any part thereof shall be withheld
under any of the exemptions set forth in subsection (b) of this section, and the burden
is on the agency to sustain its action.” 5 U.S.C. § 552(a)(4)(B). Comparable language
is not found in 5 U.S.C. § 706. Defendants argue that the presumption of regularity
afforded agency action extends to designation of the record, and the presumption can
be overcome only by Plaintiffs showing “that Defendants failed to include materials
they relied on.” Defs.’ Mem. [56] at 7-8. Defendants contend that Plaintiffs are
attempting to expand the administrative record. Id. at 8.
Defendants assert that the Court should follow the reasoning in nonbinding 5
U.S.C. § 706 cases, relying chiefly on Oceana v. Ross, where the District of Columbia
Circuit found “that the District Court did not abuse its discretion by declining to

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require that the Fisheries Service include on a privilege log those documents that the
agency excluded from the administrative record because they were deemed
predecisional and deliberative,” reasoning that
As we have held, on arbitrary and capricious review, absent a showing
of bad faith or improper behavior, “[a]gency deliberations not part of the
record are deemed immaterial.” In re Subpoena Duces Tecum, 156 F.3d
1279, 1279, 1280 (D.C. Cir. 1998). Because predecisional documents are
“immaterial,” they are not “discoverable.” Fed. R. Civ. P. 26(b)(1)
(“Parties may obtain discovery regarding any nonprivileged matter that
is relevant to any party’s claims or defense . . . .” (emphasis added)). A
privilege log is required only when “a party withholds information
otherwise discoverable by claiming that the information is privileged,”
Fed. R. Civ. P. 26(b)(5), and since predecisional documents are
irrelevant and therefore not “otherwise discoverable,” they are not
required to be placed on a privilege log.
920 F.3d 855, 865 (D.C. Cir. 2019).
The Ninth Circuit agreed with the District of Columbia Circuit that “[b]ecause
deliberative materials are ‘not part of the administrative record to begin with,’ they
are ‘not required to be placed on a privilege log.’” Blue Mountains Biodiversity Project
v. Jeffries, 72 F.4th 991, 997 (9th Cir. 2023) (citing Oceana, 920 F.3d at 865).
Defendants cite an unpublished decision from the Sixth Circuit in a § 706 record
review action where the Sixth Circuit agreed that “[d]eliberative 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.” In re EPA & Dep’t
of Def. Final Rule, No. 15-3751, 2016 WL 5845712, at *2 (6th Cir. Oct. 4, 2016). But
in the Sixth Circuit case, the agency provided an index that permitted the plaintiffs
to challenge the privilege. Id. at 1.

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No party cites them, but there are decisions from the Fourth and Second
Circuits on point. The Fourth Circuit in a 5 U.S.C. § 706 action ordered a federal
agency to file an administrative record and “submit a privilege log in the event the
Government withholds any documents under the guise of the deliberative process
privilege (or any other privilege).” Defs. of Wildlife v. Dep’t of the Interior, No. 182090, slip op. at 2 (4th Cir. Feb. 5, 2019). The Second Circuit, when denying a writ of
mandamus to stay discovery orders by the district court in a 5 U.S.C. § 706 action,
found that “without a privilege log, the District Court would be unable to evaluate
the Government’s assertions of privilege.” In re Nielsen, No. 17-3345, slip op. at 3 (2d
Cir. Dec. 27, 2017).
As for district courts in 5 U.S.C. § 706 actions, some district courts have
required a privilege log for documents withheld as deliberative and some have not.
Cases in which a privilege log was required include: Save the Colorado v. Spellmon,
No. 1:18-cv-03258-CMA, 2023 WL 2402923, at *5 (D. Colo. Mar. 7, 2023) (declining to
follow the D.C. Circuit and district courts which hold that privileged documents need
not be logged); Clinch Coal. v. U.S. Forest Serv., 597 F. Supp. 3d 916, 922 (W.D. Va.
2022) (“Oceana is distinguishable because there, the agency did not expressly state
that it relied upon the [predecisional deliberative] documents to support its final
action.”); Sierra Club v. U.S. Army Corps of Eng’rs, No. 2:20-cv-00396-LEW-JCN,
2022 WL 2953075, at *3 (D. Me. July 26, 2022) (citing Friends of the Clearwater v.
Higgins, 523 F. Supp. 3d 1213, 1226-28 (D. Idaho 2021)) (“[A] growing consensus of
district courts ha[ve] required an agency to submit a log if it withholds from the

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administrative record any deliberative process information or documents.”); Higgins,
523 F. Supp. 3d at 1227 (first citing Washington v. U.S. Dep’t of State, 2:18-cv-1115RSL, 2019 WL 1254876, at *3 (W.D. Wash. Mar. 19, 2019); then Mickelsen Farms,
LLC v. Animal & Plant Health Inspection Serv., 1:15-cv-00143-EJL-CWD, 2017 WL
2172436, at *4 (D. Idaho May 17, 2017)) (“[T]he correct way to address the tension
between APA review and deliberative process privilege is for Defendants either to file
a privilege log or submit allegedly privileged documents for in camera review.”);
Bartell Ranch LLC v. McCullough, No. 3:21-cv-80-MMD-CLB, 2021 WL 6118738, at
*2-3 (D. Nev. Dec. 27, 2021) (requiring production of a privilege log where defendants
admitted deliberative materials were omitted from the record); In re Clean Water Act
Rulemaking, No. 3:20-cv-04636-WHA, 2020 WL 6686370, at *2-3 (N.D. Cal. Nov. 12,
2020) (ordering privilege log where agency conceded documents were excluded from
the administrative record as deliberative); State v. U.S. Immigr. & Customs Enf’t,
438 F. Supp. 3d 216, 219-20 (S.D.N.Y. 2020) (finding deliberative materials are not
part of the administrative record but requiring a privilege log substantiating claims
of deliberative process privilege where the number of documents in question were
sufficiently small not to unduly burden the agency); Ctr. for Biological Diversity v.
U.S. Fish & Wildlife Serv., No. 2:19-cv-14243-RLR-SMM, 2020 WL 2732340, at *8
(S.D. Fla. May 26, 2020) (“[D]eliberative documents may be withheld from the record
only upon invocation of the deliberative process privilege, as documented in a
privilege log.”); New York v. Wolf, Nos. 1:20-cv-1127-JMH, 1:20-cv-1142-JMF, 2020
WL 2049187, at *3 (S.D.N.Y. Apr. 29, 2020) (“[N]either logic nor the law of this Circuit

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suggests that defendants in APA cases should be immune from the standard
requirement in civil litigation to produce a privilege log listing documents withheld
on the basis of privilege.”); Ctr. for Biological Diversity v. Bernhardt, No. 9:19-cv-109
-DLC, 2020 WL 1130365, at *3 (D. Mont. Mar. 9, 2020) (“The agency may protect such
documents by asserting the qualified deliberative process privilege but must produce
a privilege log to do so.”); Mnuchin I, 2018 WL 10396585, at *4 (requiring privilege
log in APA record review case when the deliberative process privilege was invoked);
Inst. for Fisheries Res. v. Burwell, No. 3:16-cv-01574-VC-JSC, 2017 WL 89003, at *1
(N.D. Cal. Jan. 10, 2017) (first citing State ex rel. Lockyer v. U.S. Dep’t of Agric., No.
3:05-cv-03508-EDL, 2006 WL 708914, at *3 (N.D. Cal. Mar. 16, 2006); then Oceana,
Inc. v. Pritzker, No. 1:15-cv-1220-ESH, 2016 WL 6581169, at *5-7 (D.D.C. Nov. 4,
2016)) (“If a privilege applies, the proper strategy isn’t pretending the protected
material wasn’t considered, but withholding or redacting the protected material and
then logging the privilege.”); Desert Survivors, 231 F. Supp. 3d at 386 (ordering a
privilege log and in camera review to determine whether deliberative process
privilege applied in an APA record review case); Coastal Conservation Ass’n v.
Gutierrez, No. 4:05-cv-1214-MH, 2006 WL 8445127, at *2 (S.D. Tex. Feb. 17, 2006)
(ordering agency to provide a privilege log covering the documents withheld on
privilege grounds because the presumption of regularity can be rebutted).
Cases in which a privilege log was not required include: Texas Gen. Land Off.
v. Biden, No. 7:21-cv-00272-DBT, 2023 WL 2733388, at *5 & n.65 (S.D. Tex. Mar. 31,
2023) (“[P]rivileged materials are not proper for inclusion in the administrative

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record and thus Defendants are not required to produce a privilege log.”); Save the
Colorado v. U.S. Dep’t of the Interior, 517 F. Supp. 3d 890, 902 (D. Ariz. 2021)
(“Because this Court has held that deliberative documents are not part of the record
to begin with, . . . there is no reason for the Department to file a privilege log as to
these documents.”); Sierra Club v. U.S. Fish & Wildlife Serv., No. 2:20-cv-13-SPCNPM, 2021 WL 5634131, at *3 (M.D. Fla. Dec. 1, 2021) (first citing Moye, O’Brien,
O’Rourke, Hogan, & Prickert v. Nat’l R.R. Passenger Corp., 376 F.3d 1270, 1278 (11th
Cir. 2004); then Bar MK Ranches v. Yuetter, 994 F.2d 735, 740 (10th Cir. 1993); and
then Transp. Div. of the Int’l Ass’n of Sheet Metal, Air, Rail, and Transp. Workers v.
Fed. R.R. Admin., 10 F.4th 869, 878 (D.C. Cir. 2021)) (“Because there is an interest
in protecting that process from disclosure, the process need not be detailed in a
privilege log for outsiders to scrutinize as part of a fishing expedition” and finding
that requiring a log “would eviscerate the presumption of regularity”); S.C. Coastal
Conservation League v. U.S. Army Corps of Eng’rs, Charleston Dist., 611 F. Supp. 3d
136, 148 (D.S.C. 2020) (“[I]t would undermine the presumption of regularity accorded
to Federal Defendants’ designation of the record for the Court to require them to
produce a privilege log, which Plaintiff would undoubtedly mine for further materials
it believes were wrongly excluded.”); N.C. Wildlife Fed’n v. N.C. Dep’t of Transp., No.
2:19-cv-14-FL, 2020 WL 5044465, at *4 (E.D.N.C. Aug. 26, 2020) (finding that, absent
a strong showing of bad faith or improper behavior, predecisional, deliberative
documents are irrelevant and “need not be documented in a privilege log”); Friends
of Animals v. U.S. Fish & Wildlife Serv., No. 4:18-cv-00053-DN-PK, 2019 WL

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8137578, at *3 (D. Utah Dec. 27, 2019) (“An agency is not required to assert a privilege
or produce a privilege log in order to withhold pre-decisional, deliberative materials
from the record.”); Exxon Mobil Corp. v. Mnuchin (Mnuchin II), No. 3:17-cv-1930-JJB,
2018 WL 4103724, at *3 (N.D. Tex. Aug. 29, 2018) (“[B]ecause privileged materials
are not a part of the [administrative record], there is no need to account for them in
a privilege log.”); Outdoor Amusement Bus. Ass’n, Inc. v. Dep’t of Homeland Sec., No.
1:16-cv-1015-ELH, 2017 WL 3189446, at *22 (D. Md. July 27, 2017) (“[N]o privilege
log is required for deliberative materials that are not properly part of the
administrative record in the first instance.”); Great Am. Ins. Co. v. United States, No.
1:12-cv-9718-RMD, 2013 WL 4506929, at *9 (N.D. Ill. Aug. 23, 2013) (“[R]equiring
the United States to identify and describe on a privilege log all of the deliberative
documents would invite speculation into an agency’s predecisional process and
potentially undermine the limited nature of review available under the APA.”); Tafas
v. Dudas, 530 F. Supp. 2d 786, 802 (E.D. Va. 2008) (“Before [the plaintiff] can demand
that the USPTO produce a privilege log substantiating any claims of privilege, he
must first show that documents that belong in the administrative record are
missing.”).
No authority binds the Court to either order or decline to order a privilege log
in an APA record review case under 5 U.S.C. § 706, and there is no prevailing
consensus in the persuasive authority. In the undersigned’s view, requiring
Defendants to produce a privilege log does not undermine the limited nature of APA
record review because it does not expand the record but does allow oversight into

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whether the “whole record” is before the Court. See U.S. Immigr. & Customs Enf’t,
438 F. Supp. 3d at 218 (“[A] court that allowed an agency to withhold documents
wrongly marked as deliberative would not be performing judicial review in the
exacting manner prescribed by the Supreme Court in Overton Park.”). Documents
genuinely falling within the deliberative process privilege are excluded from the
version of the administrative record that the Court examines during judicial review,
but “[i]t does not follow from this premise . . . that courts should not have a role in
reviewing whether this privilege was properly invoked and applied to particular
documents so withheld.” Id.
“The reasoning supporting the use of a log is persuasive regardless of whether
the records are withheld because the documents are irrelevant or privileged.” Sierra
Club, 2022 WL 2953075, at *4. “A log is a practical and meaningful way to allow a
party and ultimately a court to assess whether an agency has properly characterized
a document as part of the deliberative process,” id, at least where the preparation of
the log would not be overly burdensome. See Sierra Club, 2023 WL 6260728, at *2.
“[I]f an agency wishes to withhold documents that would otherwise be included in an
[administrative record] on the basis of [the deliberative process] privilege, it ought to
be required to file a log of the withheld documents.” Spellmon, 2023 WL 2402923, at
*5 (citing FED. R. CIV. P. 26(b)(5)(A)).
To the extent that compiling the record is agency action entitled to a
presumption of regularity that requires a 5 U.S.C. § 706 plaintiff seeking a privilege
log to first provide clear evidence that withheld documents were considered by the

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agency, clear evidence exists here. Davis’s Declaration concedes that deliberative
documents were considered and withheld. See Ex. [14-1] at 2 (“[W]ith the exception
of materials subject to the deliberative process privilege, the Administrative Record
contains the documents upon which I relied directly or indirectly in issuing the June
2022 Preliminary EA and the September 2022 Final EA and FONSI.”); see In re Clean
Water Act Rulemaking, 2020 WL 6686370, at *2 (finding plaintiff’s burden met where
agency conceded deliberative documents had been withheld); Mnuchin II, 2018 WL
4103724, at *3 (quoting City of Dallas, Tex. v. Hall, No. 3:07-cv-0060-JAS, 2007 WL
3257188, at *4 (N.D. Tex. Oct. 29, 2007)) (“Department’s [administrative record]
certification qualifies as ‘reasonable, non-speculative grounds to believe that
materials considered in the decision-making process are not included in the record.’”).
Additionally, according to Plaintiffs, Defendants admit “that some of the documents
withheld may be duplicative of documents that were actually included in the record.”
Pls.’ Mem. [16] at 15, 20-21. More than conclusory assertions of deliberative process
privilege are required in FOIA cases without offending the agency’s presumption of
regularity. See Batton, 598 F.3d at 179 (“[W]hile we assume that the IRS is telling
the truth in its affidavits, its conclusory ‘say so’ does not, alone, carry its burden of
establishing an exemption.”). The undersigned is not convinced that less is required
of an agency in a 5 U.S.C. § 706 record review case.

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III. CONCLUSION
IT IS ORDERED that Plaintiffs’ Motion to Compel Privilege Log [15] is
GRANTED. Defendants must produce a privilege log identifying deliberative
materials withheld from the administrative record by no later than April 17, 2024.
SO ORDERED, this the 26th day of March, 2024.
s/

Bradley W. Rath

BRADLEY W. RATH
UNITED STATES MAGISTRATE JUDGE

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