Forum Shopping for Agency Deliberative Documents? San Francisco is the Place to Be (For Now)

April 23, 2017By Jay W. Cormier & Anne K. Walsh

It has been 40 years since Steve Perry changed the lyrics to the iconic song Lights to refer to San Francisco rather than Los Angeles.  As it turns out, litigants looking to gain easy access to otherwise confidential agency documents may want to make the same choice.

As we have detailed before (here), in March of last year, several organizations sued FDA and the U.S. Fish and Wildlife Service to challenge FDA’s November 2015 approval of the genetically engineered AquAdvantage Salmon (a full description of the salmon can be found in our earlier post on that topic, here).  After 12 months of litigation, the case has not proceeded past discovery.  FDA has thus far produced over 38,000 pages of documents to the plaintiffs.

Much to the plaintiffs’ chagrin, those documents do not include internal deliberative documents that detail FDA’s thinking during the more than 20 years that FDA reviewed the salmon before approval. The plaintiffs demanded that FDA provide them these internal deliberative documents, and the U.S. District Court for the Northern District of California agreed, issuing an order requiring FDA to supplement the administrative record with hundreds of thousands of additional documents.

On April 19, 2017, FDA took the unusual step of filing a petition with the U.S. Court of Appeals for the 9th Circuit asking that the court issue a writ of mandamus (a fancy phrase for an order to a lower court when the lower court has acted contrary to law) requiring the lower court to vacate its ruling.

As arcane as this case may initially sound, the breadth of its implications is difficult to understate.

Federal agencies, including FDA, make administrative decisions on a daily basis, whether that is issuing a permit, denying a petition, or granting approval for a product. Prior to making these decisions, these agencies gather data and information and may even seek public comment.  Importantly, agencies deliberate internally and (often) with other governmental agencies.  There is no doubt that the contents of public comments to an agency as well as the specific data used to support an agency decision are a part of the administrative record of the decision.  The question posed in the AquAdvantage Salmon litigation is whether the written documents that constitute the agency deliberative process are also a part of that administrative record.

This is a critical question because the public should be entitled to review the administrative documents that constitute the administrative record for a given agency decision. Congress, when passing the Administrative Procedure Act, stated that the “exclusive record for decision” consists of the “transcript of testimony and exhibits, together with all papers and requests filed in the proceeding.”  5 U.S.C. § 556(e).

In 1938, however, the U.S. Supreme Court stated that it is “not the function of the court to probe the mental processes” of a government agency. U.S. v. Morgan, 304 U.S. 1, 18 (1938) (here).  Many courts, including the U.S. Court of Appeals for the District of Columbia Circuit and the U.S. District Courts for the Eastern and Central Districts of California, have determined that, following U.S. Supreme Court precedent, the internal deliberations of federal agencies are not subject to review.  This is not to say that such internal deliberations are free from public scrutiny, but rather it reflects the policy choice that, absent a strong showing that the government acted in bad faith, the public is best served by allowing agencies to freely debate administrative decisions without the chilling effect of having all deliberative documents subject to public disclosure and review.

Interestingly, however, the Northern District of California has a history of granting plaintiffs access to agency deliberative documents. Over the last 15 years, this district court has allowed access to deliberative documents from the Department of Justice, the Environmental Protection Agency, and the U.S. Department of Agriculture, to name a few.  FDA’s position in its filing is that the court erred when it required  FDA to provide plaintiffs documents that detail FDA’s deliberative process, and that the district court’s decision is at odds with the precedent established by the Supreme Court, other circuit courts, and  the Administrative Procedure Act.

FDA goes further to note that compliance with the lower court’s order to produce the deliberative documents would be overly burdensome. After a negotiated narrow search of just three document custodians, FDA identified approximately 400,000 pages of responsive material.  If the FDA staff dedicated to reviewing those documents prior to production were to work on the ordered production only, FDA asserts that it would take the agency over three years to review just those documents.  Of note, the plaintiffs are currently seeking documents from 17 custodians and have reserved the right to seek additional documents in the future.  At that rate it will take over a decade for FDA to fully respond to the document request from the plaintiffs.  Unlike private party defendants, who the Department of Justice expects to review similarly large productions in a matter of months, FDA asserts it has no available resources to hire additional staff to speed the document review process.  After years of sequester and budget cuts, it is difficult to imagine Congress or the President providing additional appropriations to facilitate document production in this case.

According to FDA, if the court denies FDA’s petition, the entire government will be exposed to innumerable lawsuits seeking production of deliberative documents. Further, subsequent internal deliberations may be stymied given they will be conducted with knowledge that expressed opinions and open debate will potentially be subject to public scrutiny, even if the ultimate agency decision is substantially different from those opinions and debate.

At bottom, because the 9th Circuit has not ruled previously on this specific question of law, it will be interesting to see whether the court is ready to open its circuit to all comers dreaming of pulling back the curtain of the government’s deliberative process or whether the court will follow the rulings of other courts.  We will continue to monitor this case and this important petition.

The court may deny the petition without an answer from the respondent or may order the respondent to file an answer within a fixed period of time.