Ninth Circuit Resolves Intra-Circuit Split on "Whole Record" Doctrine

The Administrative Procedure Act requires courts to “review the whole record,” 5 U.S.C. § 706, which includes “all documents and materials directly or indirectly considered by agency decision-makers,” Thompson v. U.S. Dep’t of Lab., 885 F.2d 551, 555 (9th Cir. 1989) (cleaned up). But are an agency’s deliberative materials part of the “whole record,” such that the agency must include a log of privileged deliberative material in the administrative record?

District courts in the Ninth Circuit had been split on the issue. See Save the Colorado v. U.S. Dep’t of the Interior, 517 F. Supp. 3d 890, 896–97 (D. Ariz. 2021) (collecting cases). In Blue Mountains Biodiversity Project v. Jeffries, No. 22-35857 (Jul. 3, 2023), a Ninth Circuit panel resolved this intra-circuit split by holding that only in narrow circumstances are deliberative materials required to be part of the administrative record.

The controversy centered on the Forest Service’s Walton Lake Restoration Project in the Ochoco National Forest in Oregon. The Project’s purpose is to replace infested trees with disease-resistant trees. In 2020, the Forest Service performed an assessment under the National Environmental Policy Act and then issued a decision approving restorative logging. The Blue Mountains Biodiversity Project (BMBP) challenged these actions in federal court, arguing inter alia that the Administrative Procedure Act required the Forest Service to complete the administrative record by providing a privilege log identifying deliberative documents.

The district court denied BMBP’s motion to complete the record and, ultimately, granted summary judgment in favor of the Forest Service on the lawfulness of its decision (excepting on one count, which is immaterial to this post). Blue Mountains Biodiversity Project v. Jeffries, No. 2:20-cv-02158-SU, U.S. Dist. LEXIS 156882 (D. Or. Aug. 19, 2021). BMBP appealed to the Ninth Circuit. In affirming the court below, the Ninth Circuit panel held that deliberative materials are generally not part of the administrative record absent impropriety or bad faith by the agency.

In so holding, the unanimous panel drew its reasoning from two principles of administrative law. First, the court accorded the Forest Service a presumption of regularity that the record the agency presents to the court is, in fact, the whole record. Second, the court noted that administrative law generally disapproves of probes into the decisionmaker’s mindset.

Notably, the Ninth Circuit carved out an exception to its new general rule. An agency’s “bad faith or improper behavior” may “justify production of a privilege log to allow the district to determine whether excluded documents are actually deliberative.” Blue Mountains, No. 22-35857, at *9.

The Ninth Circuit thus aligned itself with the only other circuit court to reach this matter. In Oceana, Inc. v. Ross, 920 F.3d 855, 865 (D.C. Cir.), the D.C. Circuit adopted the same general rule against requiring deliberative materials in the “whole record,” and the D.C. Circuit also maintained an exception to this general rule for improper behavior by the agency.