                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

 OCEANA, INC.,

                        Plaintiff,

                        v.                          Case No. 17-cv-829 (CRC)

 WILBUR L. ROSS in his official capacity as
 Secretary of Commerce, et al.,

                        Defendants.

                                     MEMORANDUM OPINION

       The National Marine Fisheries Service designs management plans to promote the

sustainability of particular species of ocean fish. Plaintiff Oceana, Inc. brought suit under the

Administrative Procedure Act challenging the Service’s management plan for one such species:

the dusky shark. But before reaching the merits of that challenge, the Court must first resolve

Oceana’s motion to compel the Service to complete or supplement the administrative record with

four categories of documents: (1) studies and other documents cited in the final Environmental

Impact Statement supporting the Service’s dusky shark management plan, (2) catch-related data

from fishing vessel logbooks and third-party observer reports, (3) documents withheld by the

Service under the deliberative process privilege, and (4) certain other extra-record studies and

data. Having considered the parties’ arguments and supporting evidence, the Court will order

that the record be supplemented with a subset of the materials in the first category of Oceana’s

request as detailed further below. The Court will deny Oceana’s motion in all other respects.

 I.    Background

       The National Marine Fisheries Service (“Service”) is a federal agency within the

Department of Commerce’s National Oceanic and Atmospheric Administration (“NOAA”).
Under the Magnuson-Stevens Act, the Service is responsible for preparing management plans for

all “highly migratory” fisheries under its jurisdiction in the Atlantic. See 16 U.S.C.

§ 1854(g)(1).1 These plans contain measures which are “necessary and appropriate for the

conservation and management of the fishery, to prevent overfishing and rebuild overfished

stocks, and to protect, restore, and promote the long-term health and stability of the fishery.” Id.

§ 1853(a)(1)(A). In order to protect against overfishing, in its management plans the Service sets

an optimum annual yield for each fishery and species of fish. See 50 C.F.R. § 600.310.

       In July 2016, the Service released a draft amendment—Amendment 5b—to its Highly

Migratory Species Fishery Management Plan. A.R. 7080. Amendment 5b specifically addresses

the overfishing and management of dusky sharks in the Atlantic. Id. Following a public

comment period, the Service released a final version of Amendment 5b in February 2017. A.R.

7050. Oceana, Inc., an environmental and conservation organization, thereafter filed suit against

Secretary of Commerce Wilbur Ross, NOAA, and the Service itself.

       After receiving the Service’s answer, the Court set a summary judgment briefing

schedule. Oceana then filed a motion to compel the Service to complete and supplement the

administrative record. In light of Oceana’s motion, the Court stayed summary judgment briefing

and held a hearing on February 2, 2018. It will now grant Oceana’s motion in part and deny it in

part, as detailed below.




       1
         The Act defines a “fishery” as “one or more stocks of fish which can be treated as a unit
for purposes of conservation and management and which are identified on the basis of
geographical, scientific, technical, recreational, and economic characteristics” and “any fishing
for such stocks.” 16 U.S.C. § 1802(13).

                                                 2
 II.   Legal Framework

       Under the Administrative Procedure Act (“APA”), the Court is directed to “review the

whole record or those parts of it cited by a party.” 5 U.S.C. § 706. Thus, review of an agency’s

action under the APA “is to be based on the full administrative record that was before [the

agency] at the time [it] made [its] decision.” Citizens to Preserve Overton Park, Inc. v. Volpe,

401 U.S. 402, 420 (1971). The administrative record consists of “all documents and materials

that the agency ‘directly or indirectly considered,’” no more and no less. Maritel, Inc. v. Collins,

422 F. Supp. 2d 188, 196 (D.D.C. 2006) (quoting Bar MK Ranches v. Yuetter, 994 F.2d 735,

739 (10th Cir. 1993)). An agency is “entitled to a strong presumption of regularity that it

properly designated the administrative record.” Pac. Shores Subdivision, Cal. Water Dist. v.

U.S. Army Corps of Eng’rs, 448 F. Supp. 2d 1, 5 (D.D.C. 2006).

       There are two situations in which a plaintiff may seek to add evidence or documents to

the administrative record. First, a plaintiff may seek to include “extra-judicial evidence that was

not initially before the agency” but that the plaintiff “believes should nonetheless be included in

the administrative record.” Univ. of Colo. Health at Memorial Hosp. v. Burwell, 151 F. Supp. 3d

1, 13 (D.D.C. 2015) (citation omitted); see also The Cape Hatteras Access Pres. Alliance v. U.S.

Dep’t of Interior, 667 F. Supp. 2d 111, 113–14 (D.D.C. 2009). Second, a plaintiff may seek to

“include ‘evidence that should have been properly a part of the administrative record but was

excluded by the agency.’” Univ. of Colo., 151 F. Supp. at 13 (citation omitted); see also Cape

Hatteras, 667 F. Supp. 2d at 114.

       With respect to the first situation, a party may supplement the administrative record if she

can “demonstrate unusual circumstances justifying a departure from th[e] general rule” against

considering extra-record evidence. City of Dania Beach v. FAA, 628 F.3d 581, 590 (D.C. Cir.


                                                 3
2010) (quoting Texas Rural Legal Aid v. Legal Servs. Corp., 940 F.2d 685, 698 (D.C. Cir.

1991)); see also American Wildlands v. Kempthorne, 530 F.3d 991, 1002 (D.C. Cir. 2008)). The

D.C. Circuit has identified three such unusual circumstances: “(1) if the agency ‘deliberately or

negligently excluded documents that may have been adverse to its decision, (2) if background

information [is] needed ‘to determine whether the agency considered all the relevant factors,’ or

(3) if the ‘agency failed to explain administrative review so as to frustrate judicial review.’” City

of Dania Beach, 628 F.3d at 590 (quoting American Wildlands, 530 F.3d at 1002).

       The appropriate standard to apply in the second situation—where a party seeks to include

evidence that was allegedly before the agency but nevertheless excluded from the administrative

record—has been the subject of some confusion. See Oceana, Inc. v. Pritzker, 217 F. Supp. 3d

310, 317 n.7 (D.D.C. 2016); Univ. of Colo., 151 F. Supp. at 13; Cape Hatteras, 667 F. Supp. 2d

at 113. This confusion has arisen because the term “supplement” “has been used synonymously

to refer to both a circumstance in which a party argues that the administrative record does not

actually reflect the materials that the agency had before it when it made its decision, and a

circumstance in which a party seeks to add extra-record or extra-judicial information to the

record that was concededly not before the agency.” Univ. of Colo., 151 F. Supp. at 13 (emphasis

in original); see also Oceana, 217 F. Supp. 3d at 317 n.7. The upshot is that it is unclear whether

a plaintiff seeking to add evidence it has demonstrated was before the agency (and thus is

properly part of the administrative record) must also show one of the three “unusual

circumstances” from cases such as City of Dania Beach in order to prevail.2



       2
         The D.C. Circuit has not clearly resolved this question because the key circuit cases—
City of Dania Beach and American Wildlands—involved extra-record material, not material that
was before the agency. See City of Dania Beach, 628 F.3d at 590 (seeking to add documents
from prior rulemakings); American Wildlands, 530 F.3d at 1002 (seeking to add two letters from

                                                 4
       The Court agrees with its colleagues who have not required that an “unusual

circumstance” be demonstrated in such cases. After all, the administrative record properly

consists of the materials before the agency and no more nor less. See Walter O. Boswell

Memorial Hosp. v. Heckler, 749 F.2d 788, 792 (D.C. Cir. 1989) (“The Supreme Court’s

formulation in Overton Park cautions against both under- and over-inclusiveness in the

administrative record before a reviewing court.”). If a plaintiff can show that a piece of evidence

was before the agency at the time the decision was made—and thus that that evidence is part of

the administrative record—it makes little sense to require that the plaintiff also show one of the

three unusual circumstances before requiring the agency to add the properly-part-of-the-record

evidence to the record. See, e.g., Univ. of Colo., 151 F. Supp. at 14. To hold otherwise would

result in the Court reviewing agency action without the entire administrative record before it,

contrary to what the APA directs, unless the plaintiff can make the heightened showing of an

unusual circumstance.

       Consequently, for a plaintiff to prevail on a motion to complete the record—that is, to

add evidence that is properly part of the record but was excluded—she must only “‘put forth

concrete evidence’ and ‘identity reasonable, non-speculative grounds for [her] belief that the

documents were considered by the agency and not included in the record.’” Charleston Area




scientists whose work the Service considered); see also Univ. of Colo., 151 F. Supp. 3d at 14
(discussing D.C. Circuit case law). Similarly, the case that the Service cites for the proposition
that Oceana must prove the agency record is so inadequate as to frustrate judicial review in order
to prevail on a motion to complete the record, Defs.’ Opp’n Pl.’s Mot. Compel (“Defs.’ Opp’n”)
at 9, involved extra-record documents. See Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275, 285
(D.C. Cir. 1981) (discussing the need to look to extra-record documents if there is “such a failure
to explain administrative action as to frustrate effective judicial review” (citation omitted)).

                                                 5
Med. Ctr. v. Burwell, 216 F. Supp. 3d 18, 23 (D.D.C. 2016) (citation omitted); see also, e.g.,

Univ. of Colo., 151 F. Supp. at 15; Cape Hatteras, 667 F. Supp. at 114.

 III. Analysis

       Oceana seeks to add four categories of documents to the record: (1) studies and reports

cited in the final agency Environmental Impact Statement for Amendment 5b (the “EIS”); (2)

documents withheld from the record as privileged; (3) catch-related data from fishing vessel

logbooks and third-party observer reports; and (4) extra-record data. The Court will grant

Oceana’s motion as to part of the first category of documents and deny it as to the rest.

       A. Studies and reports cited in the EIS

       The first set of documents that Oceana seeks to add to the record, listed in Exhibit A of

its motion, consists of studies, memoranda, and assessments that the Service cited in the EIS.

See Mem. Supp. Pl.’s Mot. Compel Completion & Supplementation (“Pl.’s Mot.”) Ex. A. These

documents received one of three treatments in the EIS: (1) some were cited in the body of the

EIS for a substantive proposition; (2) some were cited in the body of the EIS but only as a source

of additional information that readers might wish to consult; and (3) some were cited solely in a

list of references and not in the body of the EIS. Oceana argues that because all of these studies

were cited somewhere in the EIS, they were clearly before the Service at the time it made its

decision and therefore belong in the administrative record. Pl.’s Mot. at 10–11. The Court

agrees in part.

       First, there is a subset of documents listed in Oceana’s Exhibit A that were cited

substantively, i.e., to justify a factual statement or assertion made in the EIS.3 If a document was



       3
      See, e.g., A.R. 7155 (“For example, from 1992-2000, dusky sharks were 8.5 times more
common than a target species, the shortfin mako shark (Isurus oxyrinchus), in the pelagic

                                                 6
substantively cited, the Service clearly considered that document. After all, to know what the

document said the Service had to at least read it, and by citing the document to justify a

substantive factual proposition, the Service is purporting to have relied on the document and its

contents. As such, these documents were before the Service and belong in the administrative

record.

          The Service’s arguments to the contrary are unpersuasive. It contends, mainly, that the

administrative record “need not include all references cited in an administrative record

document, as a citation alone does not show that the source document was ‘before’ the agency

decisonmaker.” Defs.’ Opp’n at 9. True enough. As the cases that the Service cites recognize,

the mere mention of a document in the agency’s decision or the record does not always mean,

ipso facto, that the agency considered the document. See Franks v. Salazar, 751 F. Supp. 2d 62,

69 (D.D.C. 2010) (“[N]either the materials’ purported relevance nor plaintiffs’ references to

Safari Club during the permitting process constitute concrete evidence that the Service

considered the materials, either directly or indirectly.”); WildEarth Guardians v. Salazar, 670 F.

Supp. 2d 1, 6 (D.D.C. 2009) (“[T]he Court is not persuaded that a singular reference to the 1979

Petition in the background section of the 90-day finding is, by itself, sufficient to support

supplementation of the record. Rather, as set forth above, Plaintiff must provide reasonable,

non-speculative grounds demonstrating that the 1979 Petition itself was considered, either

directly or indirectly, by the Secretary.”).




longline fishery (Beerkircher et al. 2002).”); A.R. 7184 (“The most commonly used hook was the
18.0 circle hook used on 42.4 percent of the hauls (Enzenauer et al., 2016).”); A.R. 7255 (“There
is no evidence that artificial lures or flies frequently cause gut-hooking and associated post-
release mortality (Muoneke and Childress 1994; Brownscombe et al. 2017).”).

                                                  7
          But not all citations or references to a document in an agency decision are the same. An

agency’s decision to rely on a document to support a factual assertion is different from its mere

mention of a document’s existence. The use of a document to justify an assertion or proposition

indicates that the Service consulted and thought about—and therefore considered—that

document directly when issuing Amendment 5b. Indeed, one of the cases that Oceana relies on

explicitly distinguishes a situation where an agency merely mentions a document from one

where the agency cites a document for a substantive proposition. See WildEarth Guardians, 670

F. Supp. 2d at 7 (denying supplementation of the record with “a document that was mentioned—

but not substantively cited to—on one occasion” in the agency decision (emphasis added)); id. at

6 (“Although citation to a document may . . . indicate consideration of the contents of the

document, the fact that a document is merely mentioned does not lead to the same conclusion.”

(emphasis added)). The former may be insufficient, on its own, to show consideration, but the

latter is not.

          The Service next argues that “duplicative documents and references used for background

information need not be included.” Defs.’ Opp’n at 10. But if the Service considered such

documents, then they do need to be included: the administrative record consists of all such

documents and no less. The key question is whether the Service considered the duplicative

documents or background references. With respect to those documents cited substantively, the

Service appears clearly to have consider them and they therefore belong in the administrative

record.




                                                  8
       Second, there is a subset of documents that are cited in the body of the EIS, but solely as

a source of further information for the reader rather than to justify a factual proposition.4 In

contrast to the first category of documents, the Court concludes that Oceana has not met its

burden to show these belong in the administrative record. The use of a document as a source for

further reference is more akin to the sort of mere mention that is typically insufficient to prove

the document belongs in the administrative record. There is nothing to indicate that the relevant

decisionmakers actually thought about or even had these documents before them in the process

of making a decision—it may well be that a staffer included a citation on her own initiative. In

other words, the decision to cite a document as a further reference does not indicate that the

contents of that document were ever used, discussed, or consulted by decsionmakers when

determining the substance of the agency’s decision. Thus, the Court has not been presented with

concrete evidence that these documents were considered by the agency and will not require their

addition to the record.

       Third, there is a subset of documents that are never cited in the body of the EIS, but are

included in the list of references appended to the end of each EIS chapter.5 While this is a closer

call than either of the previous two sets of materials, the Court ultimately concludes that these

documents, too, belong in the administrative record. 6 While these documents are not expressly




       4
        See, e.g., A.R. 7209 (“For detailed information about HMS tournaments, please see . . .
the 2011 SAFE Report (NMFS 2011a) . . .”); A.R. 7211 (“Community profile information along
with demographic information from the 1990, 2000, and 2010 U.S. Census can be found in the
2011 and 2012 SAFE Reports (NMFS 2011a; NMFS 2012).”).
       5
         See, e.g., A.R. 7237 (including Cortés & Neer 2002 and Babcock et al. 2003 in the
references list for EIS chapter 3, though neither are cited in the body of chapter 3).
       6
         Every document that is cited in the body of the EIS also appears in a list of references.
As to those documents that appear in a reference list and are also cited substantively in the text to

                                                  9
relied on for a substantive factual proposition, their inclusion in the list of suggests that the

Service consulted their contents in the process of making the EIS. Or, at a minimum, nothing

about their inclusion in a reference list suggests otherwise. And in the absence of any indication

or explanation to the contrary—for instance, the fact that the documents were only cited as a

source of extra information—the Court concludes that the inclusion of the documents in a

reference list is a concrete, non-speculative basis upon which to conclude that the Service

considered them, directly or indirectly, in developing the EIS. These documents, therefore,

belong in the administrative record as well.

        B. Fishery observer and logbook data and reports

        Oceana next seeks to add data regarding dusky shark mortality and bycatch.7 Pl.’s Mot.

at 11. Its request touches upon two sets of data that the Service maintains: observer reports and

logbook reports. Observer reports are filed by impartial observers aboard fishing vessels who

document the conditions and events during their time there. See Defs.’ Opp’n at 15. In turn,

logbook reports are maintained by the captain of a vessel and include information about the




justify a proposition (thereby falling within the first category), the Court has already held they
need to be added to the record. As to those documents that appear in a reference list and were
cited in the text solely for additional information (thereby falling within the second category), the
Court has already held they were not considered and need not be added to the record. This third
category of documents solely addresses those that appear in a reference list and were not cited in
the text at all.
        7
          “Under the Magnuson-Stevens Act, ‘bycatch’ has a very specific meaning: ‘fish which
are harvested in a fishery but which are not sold or kept for personal use, and includes economic
discards and regulatory discards. Such term does not include fish released alive under a
recreational catch and release fishery management program.’” A.R. 7214 (quoting 16 U.S.C. §
1802(2)). The Service’s fishery conservation and management measures “shall, to the extent
practicable, minimize bycatch and minimize the mortality of bycatch that cannot be avoided.”
Id. (citing 16 U.S.C. § 1851(a)(9)).

                                                  10
vessel and its route, the number and type of fish caught, the type of tackle and gear used, and the

ultimate disposition of the fish caught. Schulze-Haugen Decl. ¶ 18.

        In the process of formulating Amendment 5b, the Service consulted databases that

compile the data from these logbook and observer reports. Id. ¶¶ 15, 18. The Service queried

the underlying databases for specific information, such as how many dusky sharks were observed

caught. Id. It then aggregated this data, considered it in developing Amendment 5b, and

reported the aggregate data in the final EIS. Id.; see also, e.g., A.R. 7090, 7091 (data tables).

Counsel for the Service stated at the hearing that the agency put the data it considered into the

tables in the final EIS.

        Oceana seeks to add the disaggregated version of the data reflected in the tables in

Amendment 5b to the record.8 In order to prevail, Oceana must provide concrete evidence and a

non-speculative basis for concluding that the requisite decisionmakers considered the

disaggregated data as opposed to the aggregated data. After all, an agency staffer could have

queried the databases, compiled the relevant data, aggregated it, and then presented the

aggregated figures to higher-up agency personnel and decisionmakers to consult or use when

formulating Amendment 5b. Put another way, the fact that the data was at one point

disaggregated does not necessarily mean that that disaggregated data was consulted, thought

about, or even seen by the agency decisionmakers. Thus, the mere fact that the Service used the

raw databases to generate aggregated data to use in the final EIS does not alone provide a




        8
         To the extent that Oceana seeks access to other data in the databases that was not pulled
from the database and analyzed—for instance, data regarding fish species other than the dusky
shark—it presents no evidence to indicate the Service considered any of this data and thus
supplementation of the record with the entire database would be inappropriate.

                                                 11
concrete, non-speculative basis upon which to conclude that it considered the disaggregated

figures or the entire raw dataset.

       Oceana further contends that more data needs to be added to the record because the tables

in the EIS do not contain the full spectrum of data available to the Service. For instance, it notes

that some of the tables only reflect observer data and not logbook data. Pl.’s Reply at 8. Other

tables, it says, reflect data from only some fisheries and not others. Id. at 9. But the mere fact

that other data was available to the Service does not mean the Service considered the underlying

data.9 Nor does the fact that the Service considered using the data mean that it considered the

underlying data. Cf. A.R. 7260 (Service explaining why it did not look at data on landings of

designated target species reported in Coastal Fisheries Logbook). The Service can determine

which datasets to consult and utilize in its analysis without consulting or utilizing the underlying

data in that set. And if the Service decisionmakers did not even look at, let alone consult or

utilize the underlying data, then they have not considered it.

       In sum, the mere fact that the Service had data available to it does not provide a concrete,

non-speculative basis upon which to conclude that it considered that available data. Nor does the

fact that the Service considered and used the aggregated data that already appears in the EIS

provide a concrete, non-speculative basis upon which to conclude that it considered the




       9
          The Court will note that in one section of the final EIS, the Service explained that it
used both logbook and observer data in the Predraft to Amendment 5b but used only logbook
data in the final EIS. See A.R. 7259. But since the Predraft is in the record already, any data
that appears there but not in the final EIS is also already in the record.


                                                 12
underlying raw or disaggregated data. Oceana has therefore failed to meet its burden to prove

these datasets belong in the record.10

       C. Reviews, comments, emails, and drafts

       Next, Oceana challenges the Service’s withholding of certain documents from the

administrative record pursuant to the deliberative process privilege. See Pl.’s Mot. at 19–23, id.

Ex. C. Courts in this District have long held that materials that fall within the scope of the

deliberative process privilege are not part of the administrative record. See, e.g., Am. Petroleum

Tankers Parent, LLC v. United States, 952 F. Supp. 2d 252, 265 (D.D.C. 2013).

       The justification for such a limitation is two-fold. First, “[d]eliberative documents are

excluded from the record because, when a party challenges agency action as arbitrary and

capricious, the reasonableness of the agency’s action ‘is judged in accordance with its stated

reasons.’ ‘[T]he actual subjective motivation of agency decisionmakers is immaterial as a matter

of law—unless there is a showing of bad faith or improper behavior.’” Nat’l Ass’n of Chain

Drug Stores v. U.S. Dep’t of Health & Human Services, 631 F. Supp. 2d 23, 27 (D.D.C. 2009)

(second alteration in original) (quoting In re Subpoena Duces Tecum Served on the Office of

Comptroller of Currency, 156 F.3d 1279, 1279 (D.C. Cir. 1998)). Second, protecting internal,

deliberative materials helps “enhanc[e] the quality of agency decisions by protecting open and

frank discussion among those who make them within the Government.” Oceana, 217 F. Supp.

3d at 319 (quoting Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8–9




       10
          Oceana contends that even if this data is not record evidence, it should be added to the
record as extra-record evidence. For the reasons discussed more below in the section dealing
with Oceana’s other extra-record evidence, the Court finds that Oceana fails to show any unusual
circumstance requiring supplementation of the record with this data.

                                                 13
(2001)). After all, “officials will not communicate candidly among themselves if each remark is

a potential item of discovery and front page news.” Id. (quoting Klamath Water, 532 U.S. at 9).

       In determining whether a document falls within the scope of the deliberative process

privilege, courts in this District apply the same test used in Freedom of Information Act

(“FOIA”) or common law privilege cases. See, e.g. Am. Petroleum, 952 F. Supp. 3d at 265. To

fall within the scope of the privilege a document must meet two requirements: (1) “the material

must be predecisional” and (2) “it must be deliberative.” In re Sealed Case, 121 F.3d 729, 737

(D.C. Cir. 1997). A document is predecisional “if it was generated before the adoption of an

agency policy” and it is deliberative “if it reflects the give-and-take of the consultative process.”

Am. Petroleum, 952 F. Supp. 2d at 265 (quoting Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151

(D.C. Cir. 2006)).

               1. Documents PR25 and PR26 from the Service’s privilege log

       The Service prepared a log listing the documents it withheld from the administrative

record on the basis of privilege. It included documents withheld under the deliberative process

privilege on the ground that they “help form an understanding in the agency’s decisionmaking

process and . . . the thought process the agency undertook in developing Amendment 5b.”

Schulze-Haugen Decl. ¶ 24. Oceana first contends that the Service improperly withheld two

documents on the log pursuant to the deliberative process privilege. The first, PR25, is described

in the privilege log as “Southeast Fisheries Science Center review of Amendment 5b Final

Environmental Impact Statement (FEIS), for internal agency discussion.” Pl.’s Mot. Ex. L, at

19. The second document, PR26, is described as “Southeast Fisheries Science Center review of

comments and responses of Amendment 5b . . . for internal agency discussion.” Id.




                                                 14
       At first blush, both of these documents seem to meet the requirements of the deliberative

process privilege. Both are clearly predecisional: they are dated January 2017 and thus precede

the final EIS issued in February 2017. They also appear to be deliberative. The Southeast

Fisheries Science Center is a “‘scientific agency’ within” the Service, and its comments thereby

contain suggestions and feedback from agency staff on a preliminary draft of an agency decision.

Schulze-Haugen Decl. ¶ 21. Such “recommendations, draft documents, proposals, suggestions,

and other subjective documents which reflect the personal opinions of the writer rather than the

policy of the agency” are widely recognized as falling within the scope of the privilege. Coastal

States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980).

       Oceana nonetheless contends that these documents are not protected because they contain

factual material. Pl.’s Mot. at 18. But the so-called “fact/opinion” dichotomy is not as clearly

delineated as Oceana contends. As the D.C. Circuit has explained in the FOIA context, “the

legitimacy of withholding [under the deliberative process privilege] does not turn on whether the

material is purely factual in nature or whether it is already in the public domain, but rather on

whether the selection or organization of facts is part of an agency’s deliberative process.”

Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504, 513 (D.C. Cir. 2011).

Margo Schulze-Haugen, a Service employee, has attested that the two comment documents at

issue “are not limited to purely factual or scientific information, as policy issues are often deeply

intertwined with the scientific issues, particularly given the uncertainty surrounding data and the

various options presented to and available to the agency for consideration.” Schulze-Haugen

Decl. ¶ 21. In determining how to frame and interpret the data available to it, the Service

exercises discretion in the selection and organization of facts. Comments on a draft concerning

these issues—such as those here, according to Schulze-Haugen—fall within the scope of the


                                                 15
deliberative process privilege. The Service therefore properly asserted the privilege over these

two documents.

               2. Other unspecified documents

       Oceana also argues that the agency withheld “an unspecified amount of material,

including drafts, emails, and other internal documents, that it characterizes as ‘deliberative’

which the agency believes are therefore not part of the record in the first instance.” Pl.’s Mot. at

23–24. The Service contends that these documents would be protected under the deliberative

process privilege. Defs.’ Opp’n at 25–26. However, when addressing this category of

documents, Oceana does not contest that some record materials are properly withheld under the

deliberative process privilege. See, e.g., Pl.’s Mot. at 24. Nor does Oceana contest the

applicability of the two-part test from FOIA and common law privilege cases to administrative

record ones. See id. at 17 n.5. Instead, Oceana appears to take issue solely with the wholesale

nature of the Service’s withholding here.

       While Oceana may be correct that the Service cannot wholesale withhold a category of

documents based only on their form—e.g., all memos from junior agency personnel to senior

agency personnel—it may do so if the category of documents withheld by definition meets the

requirements of the deliberative process privilege—e.g., all predecisional and deliberative

memos from junior agency personnel to senior agency personnel. And to justify this

withholding, the Service must simply represent that those documents meet the requirements of

the deliberative process privilege. After all, if a document meets the test for the deliberative

process privilege, then the agency has necessarily shown that its release would undermine the

interests the privilege is designed to protect.




                                                  16
       The Court will thus deny Oceana’s motion with respect to this set of documents for two

reasons. First, Oceana fails to identify any specific documents or provide concrete evidence and

non-speculative grounds for the conclusion that these specific documents were considered by the

agency. In light of the presumption of regularity that is afforded an agency’s certification that it

compiled the complete record, it is not enough for Oceana to simply contend, as it does here, that

the agency must add all the documents it considered. By failing to point to specific documents

and specific grounds on which to conclude those documents were considered, Oceana fails to

meet its burden.

       Second, to the extent there are other internal, deliberative (and predecisional) documents

that the agency did consider, those documents would be protected by the deliberative process

privilege and thereby should not be added to the record. As noted earlier, internal and

deliberative emails and drafts of agency decisions are the sort of materials often protected by the

deliberative process privilege. For this reason as well, the Court will deny this aspect of

Oceana’s motion.11

       D. Extra-record documents

       Finally, Oceana seeks to add a set of data on dusky shark bycatch and mortality from

various fisheries other than the highly migratory fishery (where dusky sharks are presumably

most found). Oceana concedes that this is extra-record data. See Pl.’s Mot. at 27–28 (“Despite

this evidence, the Fisheries Service did not consider mortality data from non-HMS fisheries . . . .

The observer and logbook data that Oceana seeks to add to the administrative record as extra-



       11
          Nor will the Court require the Service to provide a privilege log specifically listing this
alleged category of records, for the reasons articulated by other judges in this District. See, e.g.,
Stand up for California! v. U.S. Dep’t of Interior, 71 F. Supp. 2d 109, 123–24 (D.D.C. 2014);
Blue Ocean Institute v. Gutierrez, 503 F. Supp. 2d 366, 372 (D.D.C. 2007).

                                                 17
record evidence are listed in Exhibit D to the Hardy Declaration.” (emphases added)).

Therefore, Oceana must show that one of the three unusual circumstances applies. It argues that

two are present: (1) the agency deliberately or negligently ignored possibly adverse documents

and (2) the reports are background information needed to determine if the agency has considered

all the relevant factors. However, Oceana has not demonstrated that either circumstance is

present here.

       With respect to the first alleged unusual circumstance—the agency deliberately or

negligently ignored potentially adverse evidence—the D.C. Circuit has recently explained that a

party must show evidence of bad faith on the part of the agency to carry its burden. See Dist.

Hosp. Partners, L.P. v. Burwell, 786 F.3d 46, 54 (D.C. Cir. 2015) (“Meeting this exception

requires a ‘strong showing of [agency] bad faith’. . .” (citation omitted)).12 But Oceana provides

no indication or evidence of bad faith. Nor does it explain how these reports are potentially

adverse. Thus, Oceana does not carry its burden of showing this first unusual circumstance is

present.

       This leaves the second circumstance—that the reports are background information the

Court will need in order to determine if the agency considered all the relevant factors. But it is

not at all clear that the Court needs to have this data in front of it to determine whether the




       12
           Oceana contends that it need not show bad faith to meet this first unusual circumstance,
arguing that the D.C. Circuit “has been inconsistent as to whether bad faith is part of this element
or is a separate circumstance” and that the case on which District Hospital itself relies treated bad
faith as a separate unusual circumstance. See Pl.’s Mot. at 24 n.14. But as Oceana concedes,
District Hospital “described bad faith as a necessary component of the adverse documents
exception.” Id. To the extent that District Hospital is inconsistent with prior D.C. Circuit
decisions, that is a problem to be resolved by the Court of Appeals, not by this Court. In the
meantime, this Court is bound to follow District Hospital, which clearly states that bad faith is a
required element of the first unusual circumstance Oceana asserts.

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Service should have consulted it. After all, the parties can adequately argue about whether the

Service should have considered this data without the Court having the precise figures in the

administrative record. See Midcoast Fishermen’s Ass’n v. Gutierrez, 592 F. Supp. 2d 40, 46

(D.D.C. 2008) (“Supplementing the record with the bycatch data from an earlier period will not

provide any ‘background’ useful to resolving the case. No matter what ‘background’ is

provided, the issue remains the same: did the agency err by only considering the data that it

did?”). Consequently, this data is not necessary for the Court to be able to address Oceana’s

argument on the merits and the second unusual circumstance is not present. Because Oceana has

not demonstrated the presence of an unusual circumstance, the Court will deny its request to

supplement the record with this extra-record information.

 IV. Conclusion

       For the foregoing reason, the Court will grant in part and deny in part Oceana’s motion.

The Service must complete the record with the documents listed in Oceana’s Exhibit A

excluding the first three documents listed (the 2008, 2011, and 2012 SAFE reports). However,

the Court will not require the Service to add any of the other documents to the record. A

separate Order will accompany this Memorandum Opinion.




                                                             CHRISTOPHER R. COOPER
                                                             United States District Judge

Date: February 21, 2018




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