ELR Citation: 51 ELR 20201
No(s). 20-422 (2d Cir. Nov 29, 2021)

The Second Circuit reversed in part and vacated in part a district court ruling that ordered EPA to disclose records pursuant to a FOIA request related to a former Agency official's role in pesticide policymaking. An environmental group submitted FOIA requests for the records, and EPA invoked the deliberative process privilege to prevent disclosure of most of them. The group filed suit, and the district court ordered the Agency to produce 28 of the records it withheld. The appellate court found that 11 of the records were protected by the deliberative process privilege because they reflected deliberations over how to communicate with people outside the Agency about existing policies and thus involved "the formulation or exercise of policy-oriented judgment"; but that it could not ascertain the remaining records' deliberative character from the record. It reversed the district court's decision denying EPA summary judgment with respect to the 11 records, vacated its order requiring the Agency to disclose the other records, and remanded to the Agency for further proceedings.