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On March 4, 2021, the U.S. Supreme Court decided, in a 7-2 opinion written by Justice Amy Coney Barrett (her first majority opinion on the court), that the deliberative process privilege protects from disclosure under the Freedom of Information Act (FOIA) in-house draft biological opinions that are both pre-decisional and deliberative, even if the drafts do reflect an agency’s final position. United States v. Sierra Club, Inc., 592 U. S. ____ (2021).

This decision makes it clear that federal government agencies are not obligated to turn over draft documents, in this case associated with the impact on endangered species that an Environmental Protection Agency (EPA) proposed rule could have, when such documents are requested under FOIA. The decision rejects the argument that exempting draft documents from the disclosure requirements will result in federal agencies being able to conceal documents and records the public has a right to see, simply by marking these documents as drafts. Additionally, the opinion resolves confusion that may have arisen following the Ninth Circuit’s decision requiring the disclosure of such draft opinions.

Authors: Liza V. Craig Lawrence P. Block Elizabeth Leavy William T. Kirkwood

Background

The EPA proposed a rule in 2011 on “cooling water intake structures” used to cool industrial equipment, and because aquatic wildlife potentially could become trapped and even die in the intake structures, the EPA was required by the Endangered Species Act of 1973 to consult with the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) before finalizing its rule. The purpose of this consultation was to inform the FWS and NMFS so that both agencies could prepare official “biological opinions” on whether the EPA’s proposed rule would potentially put any endangered species in jeopardy. In the event that either FWS or NMFS opined that the proposed rule would jeopardize endangered animals, the EPA would be required to: 1) implement certain alternatives proposed by FWS and NMFS; 2) terminate the action altogether; or 3) seek an exemption.

In 2013, after consulting with the EPA (which had revised its proposed rule at least once based on feedback it received from FWS and NMFS), staff members at FWS and NMFS concluded and documented in draft opinions that the proposed rule was likely to jeopardize certain endangered species; however, these draft opinions were never finalized by FWS and NMFS staff. Ultimately, the EPA again revised its proposed rule, which it provided to FWS and NMFS in 2014. This version differed significantly from the prior versions, and both FWS and NMFS ultimately finalized opinions that concluded that the revised rule was unlikely to harm any protected species. The EPA then finalized its rule.

The Sierra Club submitted a FOIA request for agency records from that decision-making process. The government withheld the draft opinions under FOIA Exemption 51, which incorporates the deliberative process privilege, and the Sierra Club sued to obtain the draft opinions. The district court agreed with Sierra Club, and the Ninth Circuit affirmed in part. See Sierra Club, Inc. v. United States Fish & Wildlife Serv., 925 F. 3d 1000 (9th Cir., 2019). The appeals court held that FOIA Exemption 5 was to be construed narrowly, and therefore the draft opinions were not entitled to be withheld under Exemption 5 because even though they were labeled as drafts, they represented the agencies’ final opinion that the EPA’s 2013 proposed rule was likely to have an adverse effect on certain endangered species. Id. at 1014. The appeals court ordered the government to turn over the records, and the Supreme Court agreed to review the case this year.