nor less information than did the agency when it made its decision." IMS, P.C. v. Alvarez, 129 F.3d 618, 623 (D.C. Cir. 1997) (citing Walter O. Boswell Mem'l Hosp. v. Heckler, 749 F.2d 788, 792 (D.C. Cir. 1984)). As our court of appeals put it, for a court "to review less than the full administrative record might allow a party to withhold evidence unfavorable to its case," while "to review more than the information before the [agency] at the time [of its] decision risks our requiring administrators to be prescient or allowing them to take advantage of post hoc rationalizations." Boswell, 749 F.2d at 792 (emphasis added).
To ensure that the administrative record contains "neither more nor less" information than was before the agency, courts in this circuit have directed agencies to collect those materials "that were 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); Common Sense Salmon Recovery v. Evans, 217 F. Supp.2d 17, 20 (D.D.C. 2002). More specifically, the record must include all documents and materials that the agency "directly or indirectly considered." Bar MK Ranches v. Yuetter, 994 F.2d 735, 739 (10th Cir. 1993); Amfac Resorts, L.L.C. v. Dep't of Interior, 143 F. Supp.2d 7, 12 (D.D.C. 2001); Novartis Pharms. v. Shalala, 2000 WL 1769589, at *2 (D.D.C. Nov. 27, 2000); Alaska Excursion Cruises v. United States, 603 F. Supp. 541, 550 (D.D.C. 1984); see also Pers. Watercraft Indus. Ass'n v. Dep't of Commerce, 48 F.3d 540, 546 n. 4 (D.C. Cir. 1995) (noting with approval that the "whole record" contained all materials "pertaining to the [challenged] regulation").
The agency may not skew the record in its favor by excluding pertinent but unfavorable information. Envtl. Def. Fund v. Blum, 458 F. Supp. 650, 661 (D.D.C. 1978). Nor may the agency exclude information on the grounds that it did not "rely" on the excluded information in its final decision. Ad Hoc Metals Coalition v. Whitman, 227 F. Supp.2d 134, 139 (D.D.C. 2002); Amfac Resorts, 143 F. Supp.2d at 12. On the other hand, an agency may exclude arguably relevant information that is not contained in the agency's files but that may be available from third parties. Blum, 458 F. Supp. at 661 n. 4. In addition, an agency generally may exclude material that reflects internal deliberations. Amfac Resorts, 143 F. Supp.2d at 13 (noting that deliberative intra-agency records ordinarily are privileged); Seabulk Transmarine I, Inc. v. Dole, 645 F. Supp. 96, 201 (D.D.C. 1986) (same).
Although an agency may not unilaterally determine what constitutes the administrative record, the agency enjoys a presumption that it properly designated the administrative record absent clear evidence to the contrary. Bar MK Ranches, 994 F.2d at 739-40 (stating that the administrative record enjoys the same presumption of regularity afforded to other established administrative procedures); Amfac Resorts, 143 F. Supp.2d at 12 (noting the "standard presumption" that the agency designated the administrative record properly); Zeneca Inc. v. Shalala, 1999 WL 728104, at *3 (D.Md. Aug. 11, 1999) (observing that the administrative record enjoys a presumption of regularity); see also Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44 (stating that "[t]he task of the reviewing court is to apply the appropriate APA standard of review . . . based on the record the agency presents to the reviewing court") (emphasis added); San Luis Obispo Mothers for Peace v. Nuclear Regulatory Comm'n, 751 F.2d 1287, 1324 (D.C. Cir. 1986) (noting that "[i]n discharging their obligation to monitor agency action, courts review a record compiled by the agency").
2. The Court Presumes That the Agency Has Properly Designated
the Administrative Record
Each party vigorously argues its case. The plaintiffs argue that the Service refused to include in the record "over 300 agency documents"*fn6 based on what the plaintiffs believe are "self-serving" and "blanket" assertions that the materials either were not considered by the decision-maker or are not substantively relevant to the decision. Mot. to Compel at 3-4; Reply at 7. Citing several of this circuit's decisions, the plaintiffs stress repeatedly that the court must review the challenged agency action based on the "full administrative record before an agency at the time of its decision." Id. at 6. In their view, accepting the administrative record submitted by the defendants would be tantamount to eliminating meaningful judicial review and authorizing agencies to "manipulate and subvert the entire judicial process by picking and choosing which materials support their positions, and concealing those materials — although indisputably `before' the agency at the time of decision — that may cast doubt on their actions." Id. at 6-7. Accordingly, the plaintiffs ask the court to direct the defendants to file a "complete" administrative record. Id. at 1.
In response, the defendants charge the plaintiffs with attempting to "defin[e] for the agency what the plaintiffs believe constitutes the record." Opp'n at 1. Citing many of the same cases to which the plaintiffs refer, the defendants agree that the court must review the "whole record," defined as "neither more nor less information" than was "before" the agency. Id. at 3-4. They state that the administrative record as submitted consists of the documents that were before the decision-maker in making the decision. Id. at 6. Rejecting the plaintiffs' contention that they are attempting to conceal unfavorable documents, the defendants assert that they declined to supplement the record with the additional documents identified by the plaintiffs because those documents were not considered by the decision-maker. Id. at 2, 6. Finally, the defendants note that while narrow exceptions to the rule against extra-record review do exist, those exceptions do not apply here because the plaintiffs have not demonstrated that the agency acted in bad faith or that the record is so bare as to prevent effective judicial review. Id. at 4-6. On these grounds, the defendants urge the court to deny the plaintiffs' motion to compel. Id. at 1-2, 7.
Both parties agree that the court's review must "be based on the full administrative record that was before the [agency] at the time [it] made [its] decision," and that the court "should have before it neither more nor less information than did the agency when it made its decision." Overton Park, 401 U.S. at 420; Am. Bioscience, 243 F.3d at 582; IMS, 129 F.3d at 623 (citing Boswell, 749 F.2d at 792). The question left for the court is straightforward: who determines what constitutes the "full" administrative record that was "before" the agency?
Common sense and precedent dictate that at the outset, the answer must be the agency. Bar MK Ranches, 994 F.2d at 740; Amfac Resorts, 143 F. Supp.2d at 12; Zeneca, 1999 WL 728104, at *3. It is the agency that did the "considering," and that therefore is in a position to indicate initially which of the materials were "before" it — namely, were "directly or indirectly considered." Id. If it were otherwise, non-agency parties would be free to define the administrative record based on the materials they believe the agency must (or should) have considered, leaving to the court the unenviable task of sorting through a tangle of competing "records" in an attempt to divine which materials were considered. "Judges are not historians charged with isolating the `true' basis for an agency's decision when its ostensible justification proves unconvincing." San Luis, 751 F.2d at 1325-26. Hence the presumption that the agency properly designated the administrative record. Bar MK Ranches, 994 F.2d at 740; Amfac Resorts, 143 F. Supp.2d at 12; Zeneca, 1999 WL 728104, at *3.
In this case, the defendants have submitted an administrative record consisting of 14 volumes containing more than 6,000 pages. Notice of Filing A.R. Accompanying this record is a sworn declaration from the chief of the Service's Division of Migratory Bird Management certifying that the documents constitute the administrative record pertaining to the agency's decision. Id. at 3. In response to the plaintiffs' motion, the defendants state flatly that the record "consists of the documents `before' the decision maker in making the decision; that is, all the documents that the decision maker considered in making the decision, directly and indirectly, both for and against the decision." Opp'n at 6. Their statement is clear and unequivocal. Id. The court therefore presumes that the administrative record was properly designated.*fn7 Bar MK Ranches, 994 F.2d at 740; Amfac Resorts, 143 F. Supp.2d at 12; Zeneca, 1999 WL 728104, at *3.
Of course the agency does not always have the last word. The "presumption of administrative regularity" is just that — a presumption — and may be overcome. Bar MK Ranches, 994 F.2d at 740. For example, "when there has been a strong showing of bad faith or improper behavior or when the record is so bare that it prevents effective judicial review," the court may consider requests to supplement the record with extra-record materials.*fn8 Commercial Drapery Contractors v. United States, 133 F.3d 1, 7 (D.C. Cir. 1998) (citing Overton Park, 401 U.S. at 420) (internal quotations omitted); see also Beach Communications v. Fed. Communications Comm'n, 959 F.2d 975, 987 (D.C. Cir. 1992) (same); Cmty. for Creative Non-Violence v. Lujan, 908 F.2d 992, 997 (D.C. Cir. 1990) (same). Such exceptions to the general prohibition against extra-record review are narrowly defined, however. Commercial Drapery, 133 F.3d at 7; Amfac Resorts, 143 F. Supp.2d at 11; Sociedad Anonima Viña Santa Rita v. Dep't of Treasury, 193 F. Supp.2d 6, 18 n. 11 (D.D.C. 2001). Moreover, those challenging the record must make a "strong showing" that the exception applies. Overton Park, 401 U.S. at 420; Commercial Drapery, 133 F.3d at 7; Cmty. for Creative Non-Violence, 908 F.2d at 997.
Yet the plaintiffs here expressly disavow any intent to supplement the record, saying instead that they "seek only to ensure that all of the `evidence' that was before the agency, and therefore [is] part of the record, is actually disclosed to the Court." Reply at 7 (emphasis in original). But that statement ignores the fact that the record is presumed properly designated. Bar MK Ranches, 994 F.2d at 740; Amfac Resorts, 143 F. Supp.2d at 12; Zeneca, 1999 WL 728104, at *3. If, once the agency has designated the record, the plaintiffs believe that the defendants have excluded documents in bad faith, they should petition the court to supplement the record, identifying the applicable exception.*fn9 E.g., Sociedad Anonima, 193 F. Supp.2d at 18 n. 11 (refusing to supplement the record when plaintiff "only informed the Court that exceptions to the general rule of limitation exist" and did not "indicate which exception might apply"). Accordingly, the court will abide by the general prohibition against extra-record review.
For the foregoing reasons, the court denies the plaintiffs' motion to compel the defendants to file a complete administrative record. An order consistent with this Memorandum Opinion is separately and contemporaneously issued this 10th day of February, 2003.