Lead Industries Association, Inc. v. Occupational Safety and Health Administration (1979)

See, e. g., Hoover, supra, at 1138 (“In determining value, the government may deem it necessary to seek the objective opinion of outside experts rather than rely solely on the opinions of government appraisers”); Lead Industries Assn., supra, at 83 (applying Exemption 5 to , cover draft reports “prepared by outside consultants who had testified on behalf of the agency rather than agency staff”); see also Government Land Bank v. GSA, 671 P. 2d 663 , 665 (CA5 1982) (“Both part…

If the segment did not appear in the final version, its omission reveals an agency deliberative process: for some reason, the agency decided not to rely on that fact or argument after having been invited to do so.”). 3 Just as predecisional documents prepared by the Webster Commission for the IRS would be deemed mfra-agency communications, see id. at 83, otherwise privileged communications by another agency intended to assist the Commission with its ultimate responsibilities…

Ass’n, Inc. v. Occupational Safety and Health Admin., 610 F.2d 70, 80 (2d Cir. 1979).

Cir. 1988) (en banc); Lead Industries Association, Inc. v. OSHA, 610 F.2d 70, 85 (2d Cir. 1979).

Ass’n, Inc. v. OSHA, 610 F.2d 70 , 83 (2d Cir. 1979) (“[W]e have nothing that can usefully be added to Chief 7 Judge Bazelon’s statement in Soucie . . . .”); Hoover v. Dep’t of the Interior, 611 F.2d 1132, 1138 (5th Cir. 1980).

Ass’n v. Occupational Safety & Health Admin., 610 F.2d 70, 88 (2d Cir. 1979).

Cir. 1971); Government Land Bank v. General Services Administration, 671 F.2d 663, 665 (1st Cir. 1982); Lead Industries Association, Inc. v. OSHA, 610 F.2d 70, 83 (2d Cir. 1979); Hanson v. U.S. Agency for International Development, 372 F.3d 286 , 292–93 (4th Cir. 2004); Wu v. National Endowment for Humanities, 460 F.2d 1030, 1032 (5th Cir. 1972); Stewart v. Department of Interior, 554 F.3d 1236, 1245 (10th Cir. 2009); cf. Brockway v. Department of Air Force, 518 F.2d 1184, 1…

Ass’n v. OSHA, 610 F.2d 70, 88 (2d Cir.1979).

Ass’n v. OSHA, 610 F.2d 70, 86 (2d Cir.1979) (“[I]f the proportion of nonexempt factual material is relatively small and is so interspersed with exempt material that separation by the agency and policing of this by the courts would impose an inordinate burden, the material is still protected because, although not exempt, it is not ‘reasonably segregable.’”).

Most of the cases cited by the City do not arise under any possible common law deliberative process privilege but instead *1327 arise under Exemption 5 of the Freedom of Information Act, 5 U.S.C. § 552 (b)(5), which has a specific exemption for “intra-agency memorandums.” See, e.g., NLRB v. Sears, Roebuck & Co., 421 U.S. 132 , 95 S.Ct. 1504 , 44 L.Ed.2d 29 (1975); State of Texas v. Interstate Commerce Comm’n, 889 F.2d 59, 60 (5th Cir.1989); Lead Industries Ass’n v. OSHA, 610…

Lead Industries Ass’n, Inc., 610 F.2d at 83.

Courts have found the inclusion of particular facts to “demonstrate [an agency’s] deliberative process” where “[t]hey show the authors’ judgment in cull[ing] the relevant documents, extract[ing] pertinent facts, [and] organiz[ing] them to suit a specific purpose.” Color of Change, 325 F. Supp. 3d at 455 (internal quotation marks and citation omitted, latter alterations in original); Lead Indus., 610 F.2d at 85 (“Disclosing factual segments from the . . . summaries would reve…

In the context of factual information, the Court is tasked 20 with determining whether the proportion of nonexempt material is “relatively small” and 21 “so interspersed with exempt material that separation by the agency and policing” by the 22 Court would “impose an inordinate burden.” See Lead Indus., 610 F.2d at 86.

Cf Lead Indus., 610 F.2d at 86 (“if the proportion of nonexempt factual material is relatively small and is so interspersed with exempt material that separation by the agency and policing of this by the courts would impose an inordinate burden, the material is still protected”).

Instead, he argues that before relying on exemption 5, the IRS must demonstrate by exhaustive recitation of all subsequent agency uses of the documents in question that these records have not somehow become part of the agency’s internal working law, and that the IRS’s failure to meet this burden entitles him to summary judgment as to these documents, or, at the very least, to discovery on the question of their subsequent use by the IRS. 22 He relies for this argument on brie…

In contrast, although the Second Circuit accepted the Soucie “consultant corollary” to Exemption 5 in Lead Industries Association, Inc. v. Occupational Safety and Health Administration, 610 F.2d 70, 83 (1979) (citing Soucie, 448 F.2d at 1078 n. 44), it has never endorsed the broader Ryan fine of cases, which would exempt the NYFRB records from disclosure even though NYFRB was not a disinterested consultant to Treasury.

Ass’n v. Occupational Safety & Health Admin., 610 F.2d 70, 82 (2d Cir. 1979)); see also id. (“It follows that each assertion of the privilege must be checked against the details of the deliberative process and the role of the documents to that process.”).

Ass’n, Inc., 610 F.2d at 86; see also Cox v. Dep’t of Just., 504 F. Supp. 3d 119 , 129 (E.D.N.Y. 2020) (“Although it is the agencies’ burden to establish that they properly segregated information, ‘[a]gencies are entitled to a presumption that they complied with the obligation to disclose reasonably segregable material.’” (internal citations omitted)).

Ass’n, 610 F.2d at 80.

Ass’n, 610 F.2d at 86 (affirming the agency’s withholding of “drafts of the preamble to . . . standards that appeared in the Federal Register”); NRDC v. Fox, No. 94-CV-8424 (PKL) (HBP), 1998 WL 158671 , at *4 (S.D.N.Y.

Ass’n v. OSHA, 610 F.2d 70 , 79-80 n.17 (2d Cir. 1979) (“The broad language of 28 U.S.C. § 1404 (a) would seem to permit a court to order transfer sua sponte.”); see also RBG Mgmt.

Assoc., Inc. v. OSHA, 610 F.2d 70 , 79-80 n.17 (2d Cir. 1979) (“The broad language of 28 U.S.C. § 1404 (a) would seem to permit a court to order transfer sua sponte.”).

Assoc., Inc. v. OSHA, 610 F.2d 70 , 79-80 n.17 (2d Cir. 1979) (“The broad language of 28 U.S.C. § 1404 (a) would seem to permit a court to order transfer sua sponte.”).

Assoc., Inc. v. OSHA, 610 F.2d 70 , 79-80 n. 17 (2d Cir. 1979) (“The broad language of 28 U.S.C. § 1404 (a) would seem to permit a court to order transfer sua sponte.”).

Ass’n, Inc., 610 F.2d at 85).

Assoc., Inc. v. OSHA, 610 F.2d 70 , 79-80 n. 17 (2d Cir. 1979) (“The broad language of 28 U.S.C. § 1404 (a) would seem to permit a court to order transfer sua sponte.”).

Ass’n, Inc. v. Occupational Safety & Health Admin., 610 F.2d 70 , 85 (2d Cir. 1979) (“Disclosing factual segments from the . . . summaries would reveal the deliberative process of summarization itself by demonstrating which facts in the massive rule- making record were considered significant by the decisionmaker.”).

Ass’n, Inc. v. OSHA, 610 F.2d 70 , 79 n.17 (2d Cir. 1979) (“The broad language of 28 U.S.C. § 1404 (a) would seem to permit a court to order transfer [s]ua sponte.”); Tillman v. Vargas, No. 21-CV-7029, 2021 WL 4777974 , at *1 (S.D.N.Y.

Ass’n, Inc. v. OSHA, 610 F.2d 70 , 79 n.17 (2d Cir. 1979) (“The broad language of 28 U.S.C. § 1404 (a) would seem to permit a court to order transfer [s]ua sponte.”); Tillman v. Vargas, No. 21-CV-7029, 2021 WL 4777974 , at *1 (S.D.N.Y.

Ass’n v. OSHA, 610 F.2d 70 , 79 n.17 (2d Cir. 1979) (“The broad language of 28 U.S.C. § 1404 (a) would seem to permit a court to order transfer sua sponte.”); accord Armstrong v. Costco Wholesale Corp., 234 F. Supp. 3d 367, 369 (E.D.N.Y. 2017) (“A court may transfer a case sua sponte.”); see also 5B Charles A. Wright & Arthur R.

Lead Industries Ass’n, Inc. v. Occupational Safety and Health Administration, 610 F.2d 70, 87-88 (2d Cir. 1979).

Lead Industries Ass’n, Inc. v. Occupational Safety and Health Administration, 610 F.2d 70, 87-88 (2d Cir. 1979).

Ass’n v. Occupational Safety & Health Admin., 610 F.2d 70, 85 (2d Cir. 1979) (citation and internal quotation marks omitted).

Inc. v. Occupational Safety & Health Admin., 610 F.2d 70, 79 (2d Cir. 1979) (noting that “broad language of 28 U.S.C. § 1404 (a) would seem to permit a court to order transfer sua sponte”).

Assoc. v. Occupational Safety & Health Admin., 610 F.2d 70 , 79 n.17 (2d Cir. 1979) (“The broad language of 28 U.S.C. § 1404 (a) would seem to permit a court to order transfer [s]ua sponte . . . .”); Flaherty v. All Hampton Limousine.

Ass’n v. Occupational Safety & Health Admin., 610 F.2d 70, 86 (2d Cir. 1979)).

Ass’n, Inc. v. Occupational Safety & Health Admin., 610 F.2d 70 , 79 n.17 (2d Cir. 1979) (“The broad language of 28 U.S.C. [§ ] 1404(a) would seem to permit a court to order transfer Sua sponte”); cf. Order, 15-CV-2909, Feb. 17, 2017, ECF No. 106 (transferring case sua sponte to the District of Oregon); Order, 15-CV-2928, Feb. 17, 2017, ECF No. 113 (transferring case sua sponte to the District of Maryland).

Ass’n, Inc. v. Occupational Safety & Health Admin., 610 F.2d 70 , 79 n.17 (2d Cir. 1979) (“The broad language of 28 U.S.C. [§ ] 1404(a) would seem to permit a court to order transfer Sua sponte”).

Ass’n v. Occupational Safety & Health Admin., 610 F.2d 70, 85 (2d Cir.1979) (“If the factual materials are ‘inextricably intertwined’ with policy making recommendations so that their disclosure would ‘compromise the confidentiality of deliberative information that is entitled to protection under [Freedom of Information Act (“FOIA”) ] Exemption 5[, which protects from disclosure inter or intra-agency memo-randa or letters that would not be available by law to a party other th…

Ass’n v. Occupational Safety & Health Admin., 610 F.2d 70, 86 (2d Cir.1979) (“If the segment appeared in the final version, it is already on the public record and need not be disclosed.

Further, the Second Circuit has instructed that “[a] determination of which if any portions of an otherwise exempt document are nonexempt must begin with a consideration of the nature of the document as a whole.” Lead Indus., 610 F.2d at 85.

Ass’n, Inc., 610 F.2d at 86 (observing that the production of factual material in draft documents would allow insight into an agency’s internal workings, which “is exactly what the law forbids”)).

Assoc, Inc., v. O.S.H.A., 610 F.2d 70, 88 (2d Cir.1979) (“It is only where the record is vague or the agency claims too sweeping or suggestive of bad faith that a District Court should conduct an in camera examination to look for segregable non-exempt matter.”); Garcia, 181 F.Supp.2d at 370 (“In camera review of documents that have been withheld or redacted is disfavored....

Ass’n v. OSHA 610 F.2d 70, 85 (2d Cir.1979) (Withholding of factual material is proper where disclosure would reveal the deliberative process by demonstrating which facts were considered significant by the decisionmakers); Wash. Research Project, Inc. v. Dep’t of Health, Educ. & Welfare, 504 F.2d 238, 250-51 (D.C.Cir.1974) (“[T]he judgmental element arises through the necessity to select and emphasize certain facts at the expense of others.”).

Ass’n v. Occupational Safety & Health Admin., 610 F.2d 70, 85-86 (2d Cir.1979) (holding that disclosure of draft information not appearing in final version of document was improper because “omission reveals an agency deliberative process: for some reason, the agency decided not to rely on that fact or argument after having been invited to do so”).

Ass’n, Inc. v. Occupational Health & Safety Admin., 610 F.2d 70, 83 (2d Cir.1979); Soucie v. David, 448 F.2d 1067 , 1078 n. 44 (D.C.Cir.1971).

Ass'n, Inc. v. OSHA, 610 F.2d 70, 86 (2d Cir.1979): [I]f the proportion of nonexempt factual material is relatively small and is so interspersed with exempt material that separation by the agency and policing of this by the courts would impose an inordinate burden, the material is still protected because, although not exempt, it is not "reasonably segregable[.]" (citation omitted). [16] We recognize that there may be times when a FOIA request asks for material that might rea…

Ass’n v. OSHA, 610 F.2d 70, 86 (2d Cir.1979).

Ass’n v. Occupational Safety & Health Admin., 610 F.2d 70, 86 (2d Cir.1979) (“[I]f the proportion of nonexempt factual material is relatively small and is so interspersed with exempt material that separation by the agency and policing of this by the courts would impose an inordinate burden, the material is still protected because, although not exempt, it is not ‘reasonably segregable,’ under the final clause of § 552(b).” (citing Mead Data Cent., Inc. v. United States Dep’t …

“But such disclosures of the internal workings of the agency is exactly what the law forbids.” Id. (quoting Lead Indus., Ass’n v. OSHA, 610 F.2d 70, 86 (2d Cir. 1979)).