Exemption 5 from the Freedom of Information Act (FOIA, 5 U.S.C. § 552 et seq.)—also known as the “deliberative process privilege”— shields from disclosure inter- and intra-agency memoranda and letters documenting “open and frank discussion among” public officials who make agency decisions, where such documents “would not be available by law to a party other than an agency in litigation with another agency.” 5 U.S.C. § 552(b)(5); Dept. of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8-9 (2001).
The U.S. District Court for the Southern District of New York has held that Exemption 5 supports the U.S. Environmental Protection Agency’s (EPA) decision to withhold an algorithm developed to assist the agency in developing automobile emissions standards. [Natural Resources Defense Council v. U.S. Environmental Protection Agency, ___F.Supp.3d___, Case No. 18-cv-11227 (S.D. N.Y. Aug. 22, 2019).]
Background
The federal Clean Air Act (CAA, 42 U.S.C. § 7401 et seq.) requires that EPA establish nationwide standards for greenhouse gas emissions from new automobiles. 42 U.S.C. § 7521(a)(1). Auto manufacturers can choose from among “an almost infinite number of technology combinations” to ensure their products comply with the standards. Emissions standards:
. . .shall take effect after such period as … necessary to permit the development and application of the requisite technology, giving appropriate consideration to the cost of compliance within such period. 5 U.S.C. 7521(a)(2).
EPA developed a computer program, the “Optimization Model for Reducing Emissions of Greenhouse Gasses from Automobiles” or “OMEGA”:
. . .to assist itself in evaluating the cost and effectiveness of certain technologies, predicting the various ways that manufacturers could combine technologies to achieve compliance, and estimating the cost of complying with various emissions standards.
Quantitative data, “such as the specific vehicle models on the market, available emission-reduction technologies and corresponding costs, hypothetical emission targets, and fuel costs,” is fed into OMEGA, and the algorithms in the “core model” yield the output data:
. . .including which combinations of technologies a manufacturer could use to meet a given emissions target and the cost to each manufacturer, per vehicle, of implementing those technologies.
EPA has used OMEGA in creating emission standards for greenhouse gas emissions from automobiles in the past, but in 2018 EPA relied instead on the Department of Transportation’s Corporate Average Fuel Economy (CAFE) and tailpipe carbon dioxide emissions standards for passenger cars and light trucks to establish new standards for model years 2021-2026. However, EPA stated it could use OMEGA to formulate emissions standards in future rulemaking.
Plaintiff environmental group sought disclosure of OMEGA, including its core model, via FOIA; EPA withheld the core model pursuant to FOIA Exemption 5, the deliberative process privilege. The environmental group sought review of that decision.
The U.S. District Court’s Decision
FOIA Exemption 5:
. . . has two requirements. First, ‘the communication must be “inter-agency or intra-agency.’” … Second, ‘the document must be (i) “predecisional, i.e., prepared in order to assist an agency decision-maker in arriving at his decision,” and (ii) “deliberative, i.e., actually related to the process by which policies are formulated.” Brennan Ctr. For Justice at New York Univ. Sch. of Law v. Dep’t of Homeland Sec., 331 F.Supp.3d 74, 93 (S.D. N.Y. 2018).
Further, withholding:
. . .is permissible only if an ‘agency reasonably foresees that disclosure would harm an interest protected by [the] exemption.’” New York Times Co. v. United State Dep’t of State, No. 19-cv-645, 2019 WL 2994288 at *3 (S.D. N.Y. July 9, 2019).
Computer Core Model May Be a Communication and May Be Withheld
The District Court rejected plaintiff’s argument that the core model falls outside Exemption 5 “because it is not a ‘letter’ or ‘memorandum,’ … define[d] as ‘prose documents used for interpersonal communication.’” The court cited Circuit Court of Appeals authority holding “computer printout[s]” (Chilivis v. S.E.C., 673 F.2d 1205, 1212 n.15 (11th Cir. 1982)) and “data on government computers” (Hunton Y Williams v. U.S. Dep’t of Justice, 590 F.3d 272, 280-281 (4th Cir. 2010)) may be “communications” within Exemption 5’s scope. See also, Lead Indus. Ass’n, Inc. v. Occupational Safety & Health Admin., 610 F.2d 70, 84–85 (2d Cir. 1979) (“tabular or graphic summaries” of data may be withheld); Goodrich Corp. v. U.S. E.P.A., 593 F. Supp. 2d 184, 189–90 (D.D.C. 2009) (a “groundwater flow model and a draft of the model itself properly withheld); Cleary, Gottlieb, Steen & Hamilton v. Dep’t of Health & Human Servs., 844 F. Supp. 770, 782–83 (D. D.C. 1993) (computer software program shielded from disclosure).
OMEGA Constitutes a ‘Predecisional’ Documentation
Although EPA did not rely on OMEGA in the most recent round of decision-making regarding greenhouse gas emission standards, the District Court nonetheless found that OMEGA constitutes “predecisional” documentation of agency decision-making “A document is predecisional when it is ‘prepared in order to assist an agency decisionmaker in arriving at [a] decision.’” Grand Cent. P’ship, Inc. v. Cuomo, 166 F.3d 473, 482 (2d Cir. 1999).
“To find that a document is predecisional, [a] court must be able ‘to pinpoint an agency decision or policy to which the document contributed,’ or was intended to contribute.” Brennan Ctr. for Justice, 331 F.Supp.3d at 93.
And, the agency:
. . .need not ‘point to a specific decision made by [the agency] in reliance on [the document] … [as long as the document] was prepared to assist … decisionmaking on a specific issue. Amnesty Int’l USA v. C.I.A., 728 F.Supp.2d 479, 516, 518 (S.D.N.Y. 2010).
The court rejected plaintiff’s argument that OMEGA was not predecisional because EPA instead relied on the Department of Transportation’s CAFE standards.
The parties did not dispute that the EPA developed OMEGA to assist EPA decisionmakers in establishing standards for GHG emissions from new automobiles pursuant to the EPA’s duty under the federal Clean Air Act. Though the EPA ultimately relied on the Department of Transportation’s CAFE model instead of OMEGA in developing the proposed Safe Vehicles Rule, OMEGA:
. . .nonetheless qualifies as “predecisional” because it was “intended to contribute” to EPA policy decisions regarding GHG emissions standards for new vehicles. (Internal citations omitted.)
OMEGA was ‘Deliberative’ Rather than Merely a Compilation of Data
Lastly, the District Court found that EPA’s evidence “adequately explain[ed] how OMEGA … ‘bears on the formulation or exercise of agency policy-oriented judgment’” so as to qualify as “deliberative,” rather than merely being a compilation of numerical data. Quoting Cuomo, 166 F.3d at 482, emphasis original. Specifically, a declaration from the Assistant Administrator for the EPA Office of Air and Radiation stated that:
. . .[t]he inclusion or exclusion of analytical tools, including changes to the algorithms themselves, track the analytical and policy framework of draft versions of or discussions about potential accompanying regulations.
The court analogized this to the withholding, as deliberative, of “cost estimates prepared by [the Navy] in the course of … selecting homeports for ships”…, though they could plausibly be labeled “factual material.” Quarles v. Dep’t of Navy, 893 F.2d 390, 391–393 (D.C. Cir. 1990). The Quarles court explained that:
. . .‘[n]umbers have a surface precision that may lead the unsophisticated to think of them as fixed,’ but sometimes they can ‘derive from a complex set of judgments—projecting needs, studying prior endeavors and assessing possible suppliers, [and thus] partake of just that elasticity that has persuaded courts to provide shelter for opinions generally.’ Ibid.
But while the Navy’s cost estimates “derive from a complex set of judgments,” OMEGA’s core model “is a manifestation of that ‘complex set of judgments’ itself” and thus shielded from disclosure by Exemption 5.
Conclusion and Implications
The District Court’s analysis recognizes the extent to which complex, iterative policy analysis is increasingly embodied in algorithms. While raw data inputs and post-analytical outputs may still be subject to disclosure, internal agency policy debates and considerations reflected in evolving computer analytical tools meet the definition of “deliberative” agency communications shielded from disclosure under FOIA.
(Deborah Quick)
