Back 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 provides protection against 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 bureaus’ last views about a proposition. Justice Amy Coney Barrett wrote the majority opinion, her first since joining the courtroom. .
Facts of the Case
Even the Environmental Protection Agency (EPA) proposed a rule in 2011 regarding”cooling water intake structures” utilized to cool industrial gear.
Adhering to this required consultation, the Services prepare an official”biological opinion” (known as a”hazard” or”no jeopardy” biological opinion) Changing whether the agency’s proposal will jeopardize the occurrence of endangered or endangered species.” After consulting with the Services, the EPA made changes to its proposed rule, and the Services received the revised version in November 2013. Staff members at NMFS and FWS shortly completed draft biological opinions concluding the November 2013 planned rule was likely to sabotage particular species. Staff members delivered those drafts to the relevant decisionmakers within each service, but decisionmakers at the Services publicly approved the drafts nor shipped them into the EPA. The Services instead shelved the draft opinions and agreed with the EPA to expand the period of consultation. Following these continued discussions, the EPA delivered the Services a revised proposed rule in March 2014 that differed considerably in the 2013 version. Satisfied the revised guideline was not able to harm any protected species, the Services issued a combined final”no jeopardy” biological opinion. The EPA issued its final rule the exact same day.
Sierra Club, an environmental organization, submitted FOIA requests for records related to the Services’ consultations with the EPA. FOIA requires that federal agencies make records available to the public on request, unless those records fall in one of nine exemptions. Exemption 5 incorporates the privileges offered to Government agencies in civil litigation, such as the deliberative process privilege, attorney-client liberty, and attorney work-product privilege. The Services invoked the deliberative process privilege, which protects against disclosure documents created through an agency’s deliberations about a policy, rather than files that embody or explain a policy which the agency adopts. Even the Sierra Club sued to acquire those withheld documents. Even the Ninth Circuit Court of Appeals held the draft biological opinions weren’t privileged because although branded as loopholes, the draft opinions represented the Services’ final opinion concerning the EPA’s 2013 proposed rule.
Supreme Court’s Decision
With a vote of 7-2, the Supreme Court reversed. “The deliberative process privilege protects the draft biological feedback from disclosure because they are both predecisional and deliberative,” Justice Amy Coney Barrett wrote on behalf of the Court. “We reverse the contrary judgment of the Court of Appeals and remand the case for further proceedings consistent with this ruling.”
In her opinion, Justice Barrett clarified the deliberative process privilege intends to improve agency decisionmaking by”encouraging candor and blunting the chilling effect which accompanies the prospect of disclosure.” Citing Renegotiation Bd. V. Grumman Aircraft Engineering Corp., 421 U. S. 168 (1975), she noted that the privilege distinguishes between predecisional, deliberative files, which are exempt from disclosure, and documents reflecting a final agency decision and the reasons supporting it, which are not.
“It isn’t always self-evident if it’s the document signifies an agency’s final choice, but one thing is apparent: A document isn’t final only because nothing else follows . Sometimes a proposal dies on the vine,” Justice Barrett wrote. “That happens in deliberations–some ideas are lost or simply languish. Yet documents speaking such dead-end notions can hardly be described as reflecting the agency’s preferred course. What matters, then, isn’t whether a document is in line, however whether it communicates a policy where the agency has settled”
Relying on this framework, the Court proceeded to conclude that the deliberative process privilege protects the draft biological feedback from disclosure because they signify a preliminary perspective –not a final conclusion –concerning the EPA’s proposed 2013 rule. In service, Justice Barrett highlighted the Services identified the records as”drafts.” While Justice Barrett confessed that the tag isn’t determinative, the Court found it was accurate in this situation given that the opinions were subject to both change and had no direct legal implications.
The Court further found that because the decision makers neither approved the drafts nor sent them to the EPA, they are better described as draft biological opinions however as”loopholes of draft biological opinions” In rejecting the arguments raised by the Sierra Club, the Court further concluded that while the loopholes could have had the practical effect of sparking EPA to revise its principle, the deliberative privilege still applies because the Services failed to treat the loopholes as closing but rather upon to further discussion.
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