In U.S. Fish and Wildlife Service v. Sierra Club, 592 U. S. ____ (2021), the U.S. Supreme Court maintained that the deliberative process privilege offers protection from disclosure under the Freedom of Information Act (FOIA) to in-house draft biological opinions which are both predecisional and deliberative, even if the drafts reflect the agencies’ last views regarding a proposal. Justice Amy Coney Barrett authored the majority view, her first since joining the courtroom. .
Facts of this Case
The Environmental Protection Agency (EPA) proposed a rule in 2011 regarding”cooling water intake structures” used to cool industrial gear. Because aquatic wildlife can become trapped in such intake structures and perish, the Endangered Species Act of 1973 required the EPA to consult the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) (together, the”Services”) prior to proceeding.
Adhering to this essential inspection, the Services prepare an official”biological opinion” (known as a”hazard” or”no jeopardy” biological opinion) Changing if the agency’s proposal will jeopardize the existence of threatened or endangered species. After consulting with the Services, the EPA made adjustments to its proposed rule, along with the Services received the revised version in November 2013. Staff members at NMFS and FWS shortly completed draft biological opinions concluding that the November 2013 planned rule was going to jeopardize particular species. Staff members sent those drafts to the relevant decisionmakers within every agency, but decisionmakers at the Services neither accepted the loopholes nor sent them to the EPA. The Services instead shelved the draft opinions and agreed with the EPA to expand the length of consultation. Following these continued talks, the EPA sent the Services a revised proposed rule in March 2014 that differed significantly from the 2013 variant. Satisfied that the revised rule was not likely to harm any protected species, the Services issued a joint closing”no jeopardy” biological opinion.
Sierra Club, an environmental company, submitted FOIA requests for records associated with the Services’ consultations with the EPA. FOIA requires that federal agencies make records accessible to the public upon request, unless these records fall within one of nine exemptions. Exemption 5 incorporates the privileges offered to Government agencies in civil litigation, such as the deliberative process privilege, attorney-client privilege, and lawyer work-product privilege. The Services invoked the deliberative process privilege, which protects from disclosure documents generated through an agency’s deliberations about a policy, rather than files that embody or explain a policy which the bureau adopts. The Sierra Club sued to obtain those withheld documents. The Ninth Circuit Court of Appeals held that the draft biological opinions were not privileged because although tagged as drafts, the draft opinions represented the Services’ final opinion regarding the EPA’s 2013 proposed rule.
Supreme Court’s Decision
By a vote of 7-2, the Supreme Court reversed. “The deliberative process privilege protects the draft biological feedback from disclosure since they are both predecisional and deliberative,” Justice Amy Coney Barrett composed on behalf of this Court.
In her view, Justice Barrett explained that the deliberative process privilege intends to boost agency decisionmaking by”encouraging candor and blunting the frightening impact which accompanies the prospect of disclosure.” V. Grumman Aircraft Engineering Corp., 421 U. S. 168 (1975), she further noted that the freedom distinguishes between predecisional, deliberative files, which are exempt from disclosure, and files reflecting a final agency decision and the reasons behind it, which aren’t.
“It is not always self-evident whether a document signifies an agency’s final decision, but one thing is apparent: A document is not final only because nothing else follows . Sometimes a proposal dies on the vine,” Justice Barrett composed. “That occurs in deliberations–a few thoughts are discarded or just languish. Yet documents speaking such dead-end thoughts can barely be described as reflecting the agency’s chosen course. What things, then, is not whether a document is last in line, but if it conveys a coverage on which the bureau has settled”
Relying on this frame, the Court went on to conclude that the deliberative process privilege protects the draft biological feedback from disclosure since they reflect a preliminary view–not a final conclusion –concerning the EPA’s proposed 2013 rule. In support, Justice Barrett emphasized that the Services identified all these records as”drafts.” Even though Justice Barrett acknowledged that the tag is not determinative, the Court found that it was accurate in this case since the opinions were subject to both change and had no direct legal implications.
The Court further found that since the decision makers neither accepted the loopholes nor sent them to the EPA, they are best described not as draft biological opinions but as”drafts of draft biological opinions” In rejecting the arguments raised by the Sierra Club, the Court further concluded that although the drafts could have had the practical effect of provoking EPA to revise its rule, the deliberative privilege still applies since the Services did not treat the loopholes as closing but rather upon to further discussion.
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