                        UNITED STATES DISTRICT COURT
                            DISTRICT OF COLUMBIA
______________________________
OCEANA, INC.,                  )
            Plaintiff,         )
      v.                       )    Civil Action No. 08-1881 (PLF/AK)
GARY F. LOCKE, et al.,         )
            Defendants.        )
______________________________)

                                  MEMORANDUM OPINION

       Pending before the Court is Plaintiff’s Motion to Compel Completion of the Record

(“Motion”) [16]; Federal Defendants’ opposition to the Motion (“Opposition”) [17] and the

Plaintiff’s reply to the Opposition (“Reply”) [21]. In the instant case, Plaintiff Oceana, Inc.

(“Plaintiff” or “Oceana”) moves to compel the inclusion into the Administrative Record of

seventeen documents that have been withheld by Federal Defendants National Marine Fisheries

Service; Gary Locke, Secretary of the United States Department of Commerce; and the National

Oceanic and Atmospheric Administration (hereinafter, collectively “NMFS” or the “Agency”).

Nine documents are withheld by NMFS pursuant to the confidentiality provisions of the

Magnuson-Stevens Fishery and Conservation Act (“MSA”). Eight documents are withheld based

on NMFS’s assertion of deliberative process privilege and of those eight, NMFS has also

asserted attorney-client privilege and work-product protection regarding four documents.

       On August 7, 2009, this Court issued a Minute Order directing the Defendants to provide

a copy of the documents that are being withheld on grounds of privilege or protection, so that this

Court could conduct an in camera review of those documents. On August 12, 2009, Defendants

provided the contested documents for an in camera review and the Court has now completed its

review, applying the legal principles set forth herein. This Court’s privilege rulings are explained

herein and are also noted in the accompanying Order.
                                          I. Background1

                        A. Requirements of the Endangered Species Act

           The underlying civil case involves NMFS’s authorization of a sea scallop fishery under

the Atlantic Sea Scallop Fishery Management Plan, developed pursuant to the Magnuson Act by

the New England Fishery Management Council. (Opposition at 6-7; see 50 C.F.R. §§648.50-

648.63.)2 Under Section 7(a)(2) of the Endangered Species Act (“ESA”), 16 U.S.C. §1536(a)(2),

a federal agency must, in consultation with either the NMFS or the United States Fish and

Wildlife Service (“FWS”), insure that “any action authorized, funded, or carried out by such

agency” is unlikely to jeopardize the continued existence of an endangered or threatened species

or result in the “destruction or adverse modification” of the designated “critical habitat” of the

species. See 16 U.S.C.§§ 1536(a)(2). ESA Section 7 and the implementing regulations thereto

set out a “detailed consultation process for determining the biological impacts of a proposed

activity.” (Opposition at 2-3, referencing 16 U.S.C. §1536; 50 C.F.R. Part 402.)

       An agency proposing an action must first determine whether the action “may affect”

listed species or critical habitat. 50 C.F.R. §402.14. If an affirmative determination is made, the

action agency [herein NMFS] must pursue consultation (informal or formal, as defined by the

ESA’s implementing regluations) with FWS or NMFS, depending on the species. (Opposition at

3.) As part of the formal consultation, NMFS issues a “Biological Opinion” (“BiOp”) detailing

its biological conclusions as to how the proposed action will affect the species at issue, including


       1
       Much of the information contained in this Section I is borrowed from the “Facts and
Proceedings” section of Defendants’ Opposition.
       2
      The Magnuson -Stevens Act establishes a comprehensive system for the “conservation and
management” of domestic marine fisheries. 16 U.S.C. §1801(b)(1).

                                                 -2-
a conclusion as to whether the proposed action is likely to jeopardize the continued existence of a

listed species or result in destruction or adverse modification of critical habitat. (Opposition at

3, referencing 16 U.S.C. §1536(b)(3)(A).) The jeopardy analysis synthesizes the effect of the

action, in the action area, upon the status of the species as a whole. (Opposition at 3-4,

referencing 50 C.F.R. §402.02.) If the action results in the incidental “taking” of members of the

species, NMFS provides an “incidental take statement” (“ITS”) along with the BiOp. (Oppostion

at 4, see 16 U.S.C. §§1536(b)(4)(c)(i)-(iii).) The ITS discusses the impact of the incidental

taking on the species and sets forth reasonable and prudent measures (“RPMs”) that NMFS

considers “necessary or appropriate to minimize such impact.” (Opposition at 4, citing 6 U.S.C.

§1536(b)(4)(C)(ii).) ESA regulations provide that RPMs in an incidental take statement, and the

terms and conditions implementing them, “cannot alter the basic design, location, scope,

duration, or timing of the action and may involve only minor changes.” (Opposition at 4, citing

50 C.F.R. §402.14(i)(2).)


                                      B. Biological Opinion

       NMFS engaged in intra-agency consultations concerning the effects of its fishery

authorization upon four Endangered Species Act (“ESA”)-listed species of sea turtles, and on

March 14, 2008, NMFS issued its BiOp regarding such effects. (Opposition at 6.)3 In its BiOp,

NMFS concluded that continued authorization of the scallop fishery “would not appreciably

reduce the likelihood of survival or recovery of Atlantic loggerheads” (Opposition at 8; see BiOp


       3
         In its BiOp, NMFS addressed four species of sea turtles - loggerhead, leatherback, Kemp’s
ridley, and green sea turtles - and “concluded that authorization of the Atlantic sea scallop fishery
would not jeopardize the continued existence” of any of these species. (Opposition at 7; see BiOp
at 100.) Plaintiff’s Motion focuses on loggerhead turtles.

                                                 -3-
at 89) nor would it “jeopardize the continued existence of the species.” (Id.) NMFS did however

determine that “take” would result and accordingly, it issued an incidental take statement in the

BiOp. (Opposition at 8, see BiOp at 100-104.) To minimize the amount of take, NMFS “put in

place five [reasonable and prudent measures (“RPMs”)] and five terms and conditions to

implement the RPMs, to guide continued management of the Atlantic scallop fishery.”

(Opposition at 8; see BiOp at 101-03.)

                                         II. Legal Standard

       The appropriate standard for review of final agency decisions under the Magnuson-

Stevens Act is contained in the Administrative Procedures Act, 5 U.S.C. §706. NMFS’s BiOp

must be upheld unless it is found to be “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.” 5 U.S.C.§706(2)(A). This standard of review is “narrow”

and requires only that the agency “examine the relevant data and articulate a satisfactory

explanation for its action.” FCC v. Fox Television Stations, Inc., 129 S. Ct.1800, 1804 (2009)

(quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).

       Section 706 directs a court reviewing an agency decision to “review ‘the whole record or

those parts of it cited by a party.’” American Wildlands v. Kempthorne, 530 F.3d 991, 1002 (D.C.

Cir. 2008) (quoting 5 U.S.C. §706); Pacific Shores Subdivision, California Water District v.

United States Army Corps of Engineers, 448 F.Supp.2d 1, 4 (D.D.C. 2006). Review of the

“whole record” under this Section “is to be based on the full administrative record that was




                                                 -4-
before the [agency decisionmakers] at the time [they] made [their] decision.” Citizens to

Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971). The “whole record” has been

interpreted to include documents and materials directly and indirectly considered by the agency.

Pacific Shores, 448 F.Supp.2d at 4.

       The “focal point for judicial review [of agency action] should be the administrative record

already in existence, not some new record made initially in the reviewing court.” Camp v. Pitts,

411 U.S. 138, 142 (1973). “The reviewing court is not generally empowered to conduct a de

novo inquiry into the matter being reviewed and to reach its own conclusions based on such an

inquiry.” Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985). Rather, the court is

charged with “apply[ing] the appropriate APA standard of review to the agency decision based

on the record the agency presents to the reviewing court.” Safe Extensions, Inc. v. FAA, 509 F.3d

593, 599 (D.C. Cir. 2007).

       An agency’s administrative record is presumed to be properly designated. See Sara Lee

Corp. v. American Bakers Ass’n, 252 F.R.D. 31, 34 (D.D.C. 2008) (citing San Luis Obispo

Mothers for Peace v. Nuclear Regulatory Comm’n, 751 F.2d 1287, 1329 (D.C. Cir. 1984)).

Plaintiff bears the burden of “identify[ing] reasonable, non-speculative grounds for its belief that

the documents were considered by the agency and not included in the [administrative] record.”

Pacific Shores, 448 F. Supp.2d at 6.

       Motions to supplement administrative records are only granted in exceptional cases.4



       4
        Plaintiff captions this Motion as a motion to “compel completion” of the record but it is in
fact a motion to supplement the record because it seeks disclosure of documents withheld from the
record. Colorado Wild Horse & Burro Coal. v. Kempthorne, 571 F. Supp.2d 71, 74 (D.D.C. 2008).


                                                 -5-
Fund for Animals v. Williams, 391 F.Supp.2d 191, 197 (D.D.C. 2005). Supplementation of the

administrative record is not allowed unless the moving party demonstrates “unusual

circumstances” justifying a departure from the rule that judicial review is based on a review of

the agency’s record. Am. Wildlands, 530 F.3d at 1002 (quoting Tex. Rural Legal Aid, Inc. v.

Legal Services Corp., 940 F.2d 685, 698 (D.C. Cir. 1991)). This Circuit has recognized such

“unusual circumstances” in three instances: 1) where the agency “deliberately or negligently

excluded documents” that may have been adverse to its decision; 2) where the district court

“needed to supplement the record with background information” to determine whether the

agency considered all relevant factors; or 3) where the agency has “frustrate[d] judicial review”

by failing to explain its decision. Am. Wildlands, id. (citations and internal quotation marks

omitted.)

                                           III. Analysis

       Plaintiff Oceana challenges the Agency’s withholding of three groups of documents:

1) nine observer logs [Privilege Log Documents Nos. 1-9] that are being withheld pursuant to the

confidentiality provision of the Magnuson-Stevens Fishery Conservation and Management Act;

2) eight documents being withheld under a claim of deliberative process privilege [Privilege Log

Documents Nos. 10-17]; and 3) documents and redacted portions thereof that are being withheld

under a claim of attorney-client and attorney work product privileges [Privilege Log Document

12 and the redacted portion of Privilege Log Documents Nos. 15-17.]

               A. Documents withheld pursuant to the Magnuson-Stevens Act

       NMFS deploys fishery observers to collect catch and bycatch data from United States

commercial fishing and processing vessels. “Bycatch” are the living species caught


                                                -6-
unintentionally by fishing gear, including loggerhead turtles, which can be swept into a scallop

dredge bag, where they may be injured or killed by rocks and other debris. Turtles may also be

caught within the superstructure of the gear or pinned between the gear and the fishing vessel.

See BiOp at 65-68. Privilege Log Documents Nos. 1-9 consist of one page “observer logs”

completed by observers on assigned scallop vessels, recorded between 1997 and 1999. NMFS

claims that these logs are not subject to disclosure based upon the language in the Magnuson-

Stevens Act.5

           Section 402(b)(2) of the Magnuson-Stevens Conservation and Management Act

provides that, subject to certain exceptions, “any observer information shall be confidential and

shall not be disclosed.” 16 U.S.C. §1881a(b)(2). See Kurkul Decl. ¶6 (“To release the entire

observer form, or any portion of it, would release information collected by an observer aboard a

fishing vessel and thereby threaten to dissuade observers from recording their observations of

protected species interactions during fishing operations.”) NMFS indicates that it has not

“identif[ied] any applicable exemption” applicable to the observer logs and thus is “required by

law” to withhold such logs. (Motion at 11.) Oceana argues that one of two exceptions applies

in this case to allow the agency to disclose such information; i.e., either disclosure may be

accomplished by means of a “court order,” 16 U.S.C. §1881a(b)(1)(D), or such information may

be disclosed “in any aggregate or summary form which does not directly disclose the identity or

business of any person who submits such information.” 16 U.S.C. §1881a(b)(3).



       5
         In her Declaration, Patricia A. Kurkul, Northeast Regional Administrator of NMFS,
indicates that “[o]bservers play a critical role in gathering objective information on protected species
interactions with scallop operations and have been an important means of reliable and effective data
gathering.” (Kurkul Decl. ¶6.)

                                                  -7-
       NMFS asserts that it has already “released the relevant information from the observer

logs in aggregate or summary form” with the effect that Oceana’s request for information in

aggregate form is redundant.6 (Opposition at 16); see Kurkul Declaration, ¶7 (“Portions of the

released record containing relevant information from these forms include the 2008 Scallop BiOp

(AR Doc 318 at 16819, 16821, 16823, 16829, 16831) and the Murray bycatch reports (AR Docs

205-209)”). Oceana fails to rebut NMFS’s statement that a summary of the observer data is

already in the Administrative Record, instead insisting that “[s]ince the observer logs are not

privileged, are part of the record, and . . . their release in redacted form would cause no harm, the

Opposition Brief’s claim, even if it were true, would not be relevant.” (Reply at 11.)

       Oceana’s assertion ignores the language of the Magnuson-Peters Act, which mandates the

confidentiality and non-disclosure of observer data, subject to limited exceptions, as well as the

purpose of the Act. See Kurkul Decl. ¶6 (“Releasing observer information, . . ., would threaten

to undermine the quality of information available for use in the Opinion’s analysis of effects of

scallop fishing operations on protected species. Release of the entire observer form, or any

portion of it, would also release observer information on vessel operations, which includes their

interactions with protected species. Releasing information on vessel operations . . . , which

Congress intended to be confidential, threatens to undermine the agency’s ability to have

observers on fishing vessels as they conduct normal fishing operations and to perform data-



       6
        In the instant case, the Agency has indicated that relevant information from these observer
logs was considered in aggregate form. The Agency should not be obligated to produce information
other than that which was directly or indirectly considered, which it has done by including in the
record a summary of observer data collected.



                                                 -8-
gathering functions in that context that are critical to the conservation of protected species and to

fishery management.”)

       Plaintiff alternatively argues that information on the observer logs may be disclosed when

“required by court order,” relying on Laxalt v. McClatchey, 809 F. 2d 885, 888 (D.C. Cir. 1987),

where the Circuit Court vacated the District Court’s refusal to issue an order permitting

discovery of Federal Bureau of Investigation files that were subject to the Privacy Act. That case

was remanded for the district court to apply the discovery standards and procedures set forth in

the Federal Rules of Civil Procedure. The Court of Appeals noted that “[i]t is well-settled in this

circuit that general statutory bans on publication do not bar limited disclosure in judicial

proceedings, including court-supervised discovery.” 809 F.2d at 889 (citing Friedman v. Bache

Halsey Stuart Shields, Inc., 738 F.2d 1336, 1343-44 (D.C. Cir. 1984); Freeman v. Seligson, 405

F.2d 1326, 1348-52 (D.C. Cir. 1968.)

       Laxalt is however factually inapposite to the instant case because that case involved

discovery requests made during the course of a civil proceeding, applying the Federal Rules of

Civil Procedure (Rules 26 & 45). In contrast, this case involves an action for review of an

administrative record, applying the standard of review set forth in the A.P.A., and discovery is

not typically permitted in A.P.A. cases because a court’s review of an agency’s decision is

confined to the administrative record. See, e.g., Community for Creative Non-Violence v. Lujan,

908 F. 2d 992, 997 (D.C. Cir. 1990); Edison Elec. Inst. v. OSHA, 849 F.2d 611, 617-18 (D.C.

Cir. 1988). “The administrative record includes all materials compiled by the agency . . . that

were before the agency at the time the decision was made.” James Madison Ltd. v. Ludwig, 82 F.

3d 1085, 1095 (D.C. Cir. 1996) (internal quotation marks and citations omitted); see Citizens to


                                                 -9-
Preserve Overton Park v. Volpe, 401 U.S. 402 , 419-20 (1971). While taking discovery outside

the administrative record is permitted in some limited circumstances, including where there is a

“strong showing of bad faith or improper behavior” or where discovery provides “the only

possibility for effective judicial review and when there have been no contemporaneous

administrative findings[,]” those circumstances have not been alleged to exist in this case.

Community for Creative Non-Violence, 908 F.2d at 997 (citation omitted.)

       This Court has reviewed Privilege Log Documents Nos. 1-9, consisting of observer logs,

which are confidential and should not be disclosed consistent with the clear language of the

Magnuson-Stevens Act. Despite the fact that the Agency has indicated [by citing to the Record]

that a summary of the relevant information from these logs has already been included in the

Administrative Record, Plaintiff contends that this Court should issue an order requiring

disclosure of the observer logs. Plaintiff fails however to proffer any justification for the

issuance of such court order [e.g., a strong showing of bad faith], which would persuade this

Court to bypass the confidentiality and non-disclosure provisions of the Magnuson-Stevens Act.

Accordingly, Privilege Log Documents Nos.1-9 are properly withheld by the Agency.

           B. Documents Withheld pursuant to the Deliberative Process Privilege

       A document must satisfy two criteria to be exempt from disclosure as a deliberative

documents: it must be both “pre-decisional” and “deliberative,”Judicial Watch, Inc. v.

Department of Energy, 412 F.3d 125, 129 (D.C. Cir. 2005). See also In re Sealed Case, 121 F.

3d 729, 737 (D. C. Cir. 1997).7 Documents are deliberative and predecisional if they “make


       7
        Predecisional means “prepared in order to assist an agency decisionmaker in arriving at his
decision.” Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26, 39 (D.C. Cir. 2002) (citations
omitted.) Deliberative means that the document “reflects the give-and-take of the consultative

                                                -10-
recommendations for policy change” or “reflect internal deliberations on the advisability of any

particular course of action.” Public Citizen, Inc. v. Office of Mgmt. & Budget, 569 F.3d 434, 444

(D.C. Cir. 2009.) The privilege is “centrally concerned with protecting the process by which

policy is formulated.” Petroleum Information Corp. v. United States Department of the Interior,

976 F.2d 1429, 1435 (D.C. Cir. 1992) (emphasis in original). “[T]he kind and scope of

discretion involved must be of such significance that disclosure genuinely could be thought likely

to diminish the candor of agency deliberations in the future.” Id. at 1436, n.8.

       Predecisional and deliberative documents “are not part of the administrative record to

begin with,” so they “do not need to be logged as withheld from the administrative record.”

Nat’l Ass’n of Chain Drug Stores v. U.S. Dep’t of Health & Human Servs., 631 F.Supp.2d 23, 27

(D.D.C. June 23, 2009). See also Blue Ocean Inst. v. Gutierrez, 503 F. Supp.2d 366, 372

(D.D.C. 2007) (denying motion to compel completion of administrative record, finding that

deliberative documents “are not a part of the administrative record when an agency decision is

challenged as arbitrary and capricious,” nor must the agency assert deliberative process

privilege.) In the instant case, however, while the Agency asserts that it had “no obligation to

identify deliberative documents or to submit a privilege log” NMFS did “identif[y] some

deliberative documents in its privilege log [Items Nos. 10-17] because the documents were




process.” Id. A deliberative document is one that is: “(1) antecedent to the adoption of an agency
policy and (2) a direct part of the deliberative process in that it makes recommendations or expresses
opinions on legal or policy matters.” Trans Union LLC v. Federal Trade Comm’n, 141 F.Supp.2d
62, 69 (D.D.C. 2001) (internal quotation marks and citation omitted.) See also Department of the
Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001) (finding that the
“deliberative process covers documents reflecting advisory opinions, recommendations and
deliberations comprising part of a process by which governmental decisions and policies are
formulated”) (internal quotation marks and citation omitted).

                                                -11-
 considered by the decisionmaker.” (Opposition at 18.)

       The documents withheld by NMFS under the deliberative process privilege consist of

“three documents that reflect internal discussion regarding the biological opinion, three

documents regarding development of a population viability analysis, and one document that is a

draft biological opinion.” (Id.)

       Plaintiff insists that these documents are not deliberative process privileged because they

may be classified as factual rather than opinion. (Motion at 9.)8 In support of its distinction

between factual and opinion documents, Oceana relies upon Petroleum Information Corp. v.

United States Dept. of Interior, 976 F.2d 1429, 1435 (D.C. Cir. 1992) (contrasting documents that

are “technical” and “objective” in nature with documents that contain “subjective, personal

thought.”) See also Wolfe v. Department of Health and Human Services, 839 F.2d 768, 774 (D.C.

Cir. 1988) (en banc) (“[t]he fact/opinion distinction ‘offers a quick, clear and predictable rule of

decision’ for most cases.”) The Wolfe court, 839 F.2d at 774, cautioned however that “courts must

be careful not to become victims of their own semantics” (quoting Mead Data Center, 566 F.2d at

256) because “[i]n some circumstances, even material that could be characterized as ‘factual’

would so expose the deliberate process that it must be covered by the privilege.” (citing Mead,

id.)

       The Agency disputes that the alleged deliberative process privileged documents are purely

factual, arguing instead that “[e]ach document reflects a give-and-take among NMFS officials and

staff, and thus reflect[s] internal deliberations on the course of action to take regarding (1) the


        8
          Because Oceana has not seen the documents that are being withheld, Oceana’s
 characterization of the documents as “factual” rests on the description of such documents and their
 relationship with documents that are part of the Administrative Record.

                                                 -12-
analysis of effects of the scallop fishery on sea turtles, (2) the development of the PVA model, and

(3) the conclusions in the biological opinion.” (Opposition at 19.) The Agency further notes that

these documents were all created prior to the issuance of a final Biological Opinion.

       This Court has reviewed Privilege Log Documents Nos. 10-17 and finds that Documents

Nos. 10, 11, 13 and 14 are deliberative process privileged and need not be produced by the

Agency.9 These documents were all created prior to the adoption of the March 2008 BiOp; they

are working drafts subject to comments and revisions on policy matters [Documents Nos. 13 and

part of 14] and/or they express advisory opinions and make recommendations regarding Agency

policy matters [Documents Nos. 10, 11, and part of 14]. These documents were prepared to

assist the Agency decisionmaker and they reflect Agency internal deliberations.

                    C. Attorney-Client Privilege and Work Product Protection

       The purpose of the attorney-client privilege is to promote “full and frank communication

between attorneys and their clients and thereby promote broader public interests in the observance

of law and administration of justice.” Upjohn Com. v. United States, 449 U.S. 383, 389 (1981).

See also Coastal States Gas v. Dept. Of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980) (noting that

the purpose of the privilege is to “assure that a client’s confidences to his or her attorney will be

protected, and therefore encourage clients to be as open and honest as possible with attorneys.”)

The privilege extends to an attorney’s written communications to the client to ensure against

inadvertent disclosure of such confidential information. Id. The privilege protects “confidential

communications from clients to their attorneys made for the purpose of securing legal advice or

services” as well as “communications from attorneys to their clients if the communications rest on


        9
            Documents 12 and 15-17 are better addressed in Section C. herein.

                                                 -13-
confidential information obtained from the client.” Electronic Privacy Info. Ctr. v. Department of

Justice, 584 F. Supp. 2d 65, 79 (D.D.C. 2008) (quotations and citations omitted.) The party

asserting the privilege bears the burden of demonstrating with sufficient certainty that existence of

the requisite elements supporting such privilege. Attorney General v. Covington & Burling, 430

F. Supp. 1117, 1122 (D.D.C. 1977).

       The work-product doctrine “provides a working attorney with a ‘zone of privacy’ with

which to think, plan, weigh facts and evidence, candidly evaluate a client’s base, and prepare legal

theories.” Coastal States Gas, 617 F.2d at 864. This doctrine provides immunity from discovery

for written materials that are prepared by a lawyer in anticipation of litigation. Jordan v. U.S.

Dep’t of Justice, 591 F.2d 753, 775 (D.C. Cir. 1978) (en banc), disapproved on other grounds,

Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051 (D.C. Cir. 1981). Protection

under the work-product doctrine extends to “documents prepared in anticipation of foreseeable

litigation, even if no specific claim is contemplated.” Schiller v. NLRB, 964 F.2d 1205, 1208

(D.C. Cir. 1992). The lawyer need only have a reasonable subjective and objective belief that

litigation is a real possibility. Nesse v. Pittman, 202 F.R.D. 344, 349 (D.D.C. 2001) (citing EEOC

v. Lutheran Social Servs., 186 F.3d 959, 967 (D.C. Cir. 1999)). If the party seeking work product

protection establishes that the doctrine applies, the burden shifts to the moving party to make a

showing of extraordinary justification. Fed. R. Civ. P. 26(b)(3); In re Sealed Case, 676 F.2d 793

(D.C. Cir. 1982).

       This Court has reviewed Privilege Log Documents Nos. 12 and 15-17 and confirmed that

these documents involve an exchange of confidential communications between an attorney and

client [the Agency]. These documents reflect the Agency’s confidential communications from the


                                                -14-
Agency to its attorney, to secure legal advice, and the attorney’s responses to the Agency,

providing legal opinions and analyses relating to confidential information conveyed by the

Agency. Privilege Log Documents Nos. 12, and 15-17 may thus be withheld pursuant to the

attorney-client privilege.10




DATED: October 8, 2009                       _______________/s/____________________
                                             ALAN KAY
                                             UNITED STATES MAGISTRATE JUDGE




         10
          Because the documents are attorney-client privileged, the Court need not determine
 applicability of work product protection.

                                                -15-
