Whether the Administrative Procedure Act permits an agency to categorically and unilaterally exclude deliberative materials from the administrative record

QUESTION PRESENTED The Administrative Procedure Act provides that courts “shall review the whole record” in adjudicating agency action. 5 U.S.C. § 706. Lower courts are divided over whether an agency’s allegedly deliberative materials—memoranda and other iterative documents that an agency creates and considers in undertaking agency action—are a part of the “whole record” on judicial review. Most courts have concluded that the “whole record” means what it says: deliberative materials are a part of the administrative record, and the agency must produce a privilege log if it seeks to withhold deliberative documents. In the decision below, the Ninth Circuit joined the D.C. Circuit in holding that materials an agency deems “deliberative” are categorically excluded from the administrative record. The Court of Appeals further held that because, in its view, deliberative materials are not part of the administrative record, the agency need not produce a privilege log identifying the withheld materials absent a showing the agency acted in bad faith or engaged in other misconduct in classifying the documents as deliberative. The question presented is: Whether the Administrative Procedure Act, which requires an agency to produce its “whole record” for judicial review, permits an agency to categorically and unilaterally exclude from the administrative record materials that the agency deems deliberative.