Case preview: Court will consider the scope of transparency under the Freedom of Information Act’s key “deliberative process” privilege

On Monday, Nov. 2, the Supreme Court will hear oral argument in U.S. Fish and Wildlife Service v. Sierra Club — a case that will define the bounds of the deliberative process privilege under the Freedom of Information Act. More broadly, the case implicates how to balance the public interest in transparency and accountability in government decision-making with the public policy of facilitating federal agencies’ ability to deliberate candidly. It will be the first case argued with Justice Amy Coney Barrett on the court.

FOIA provides the public with a statutory right to access federal government records. Its purpose is to promote an informed citizenry and government accountability, both vital to the functioning of a democratic society. However, FOIA exempts from disclosure certain records, including those that are “inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency.” The Supreme Court has interpreted that exemption – known as exemption 5 – as allowing the government to withhold records that would be privileged against discovery in civil litigation, including those that fall under the deliberative process privilege. This privilege protects “documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” That is, for the privilege to apply, a document must be “predecisional” and “deliberative.”

In this case, the Supreme Court will address whether exemption 5, through incorporation of the deliberative process privilege, protects the U.S. Fish and Wildlife Service and National Marine Fisheries Service (collectively, “the services”) from disclosing certain documents prepared as part of a statutorily required interagency consultation process with the Environmental Protection Agency.

Section 7 of the Endangered Species Act prohibits federal agency actions that jeopardize the continued existence of listed species or result in adverse modification of critical habitat. This section also requires federal agencies to consult with the services to determine whether an agency action may cause “jeopardy” – a legal term referring to the potential harm to any of the covered species or their habitat. In some circumstances, the services prepare this determination in the form of a biological opinion assessing whether the proposed action poses jeopardy to listed species and their habitat. If the services determine jeopardy may occur, they are required to propose “reasonable and prudent alternatives.” An agency must then adopt one of these RPAs or run the substantial risk of violating the ESA, unless it obtains a rarely granted exemption from a Cabinet-level committee.

In 2011, EPA proposed new regulations for cooling water intake structures, as required by the Clean Water Act. The structures are used by industrial facilities such as power plants to draw large volumes of water from the ocean or other bodies of water into their cooling systems. These intakes can harm aquatic life, by trapping fish and other large organisms against the intake screens and sucking in smaller fish, larvae, eggs and other organisms into the intake. Pursuant to Section 7 of the ESA, EPA consulted with the services about potential jeopardy to listed species.

The services initially found that EPA’s proposed rule would jeopardize species protected under the ESA and prepared biological opinions that reflected this in December 2013, along with draft RPAs to the proposed rule. The services sent EPA the draft RPAs and portions of the December 2013 biological opinions, but did not formally send EPA the opinions in full.

After receiving the portions of the opinions and the RPAs, EPA revised the proposed rule and sent it back to the services in March 2014. The services issued a joint, final biological opinion concluding the new rule was not likely to jeopardize listed species or critical habitat. EPA issued its final rule on May 19, 2014.

In August 2014, Sierra Club filed a FOIA request for documents generated during the Section 7 interagency consultation process. In response, the services released many, but not all, of the records, invoking the deliberative process privilege. Sierra Club filed suit for the release of the withheld documents, including the December 2013 biological opinions and various related documents. A federal district court held that the documents were not protected under exemption 5. On appeal, the U.S. Court of Appeals for the 9th Circuit affirmed in part and reversed in part, holding that the December 2013 biological opinions and several other draft documents were not exempt from disclosure. The services sought review by the Supreme Court, which agreed to take up the case in March.

In their brief on the merits, the services emphasize that the deliberative process privilege was incorporated into exemption 5 because “effective governmental decisionmaking depends on agencies’ ability to have ‘frank discussion of legal or policy matters’ in writing.” The services argue that a document is predecisional if it was “prepared ‘before any final agency decision on the relevant matter’” and deliberative if it was “intended to facilitate or assist development of the agency’s final position on the relevant issue.” The services look to the Supreme Court’s decision in Renegotiation Board v. Grumman Aircraft Engineering Corp. to support their claim that a document falls outside the scope of the privilege when it “‘carries legal weight’ akin to the decision of a federal district court; not merely because it prompts another party to voluntarily take some action.” They contend the “final agency decision on the relevant matter” in this case is the final May 2014 biological opinion containing their “no jeopardy” determination. Thus, they argue the draft documents are predecisional and deliberative because the decisionmakers “were free to ‘change their minds’” until the services issued the final May 2014 biological opinion. Because the draft documents were not finalized or signed by decisionmakers, were not circulated in full to EPA, and were not disseminated to the public, the services argue that they did not “carry the force of law.”

The services also rely on the U.S. Court of Appeals for the District of Columbia Circuit’s 2014 opinion in National Security Archive v. Central Intelligence Agency, authored by then-Judge Brett Kavanaugh, which held that a draft volume of the CIA’s book on the history of the Bay of Pigs was exempt from FOIA under the deliberative process privilege. Even though the draft volume at issue was never finalized and released to the public and thus had “died on the vine,” Kavanaugh concluded that “the draft is still a draft and thus still pre-decisional and deliberative.” In their brief, the services specifically invoke this language in arguing that although, like the CIA’s draft volume, the December 2013 biological opinions “died on the vine” when EPA revised its rule in March 2014 and “did not ripen into final agency documents,” this does not change their status as predecisional and deliberative drafts.

In response, Sierra Club emphasizes that FOIA “mandates disclosure of ‘the reasons’ that ‘supply the basis for an agency policy actually adopted’” to “safeguard ‘citizens’ rights to be informed about ‘what their government is up to’” and avoid “allowing ‘Government officials [to] wield power without owning up to the consequences.’” They highlight that FOIA’s mandate includes disclosure of the “reasoning for intermediate decisions that shape later outcomes.” The deliberative process privilege, they argue, protects against disclosure that “would be ‘injurious to the consultative functions of government,’” but does not allow withholding of documents that “embody the agency’s effective law and policy” or “describe ‘the reasons’ that ‘supply the basis for an agency policy actually adopted.’” Sierra Club proposes that a document is predecisional if it is “‘produced in the process of formulating policy,’ rather than a ‘statement[] of an agency’s legal position.’” And the group argues that deliberative should refer to a document that contains “material ‘reflect[ing] an agency’s preliminary positions or ruminations’ about a particular policy judgment.”

Sierra Club provides three arguments as to why the services did not meet their burden of showing that the deliberative privilege process applies.

First, the services’ jeopardy determination has “direct and appreciable legal consequences,” as indicated by the fact that when the services conveyed their initial jeopardy determination to EPA, the agency did not finalize its proposed rule. Instead, it consulted with the services over the suggested RPAs, which needed to be developed only if a jeopardy finding was made. Sierra Club also argues that the December 2013 biological opinions did not “die on the vine” when EPA revised its rule. Rather, the biological opinions had a “determinative force and effect” that resulted in the revision.

Second, Sierra Club stresses that FOIA exemptions are to be narrowly construed, and as such, cannot be interpreted to categorically exempt interim decisions and limit disclosure “to only the very last of a sequence of decisions.” Withholding the December 2013 biological opinions would “conceal not only the basis for a jeopardy decision, but that they ever made a jeopardy decision,” the group argues. Further, EPA’s final May 2014 rule allows the services to review subsequent Clean Water Act permits to protect listed species. Sierra Club argues that, without disclosure of the December 2013 biological opinions, the public would not have a basis for determining whether those permit reviews align with the impacts to species the services identified that resulted in EPA providing them a role in the permitting process in the first place.

Third, Sierra Club argues that disclosure is not contingent on whether the agency labels the document as “draft” or “final.” Contrary to the services’ interpretation of Grumman Aircraft, Sierra Club maintains that the Supreme Court has never imposed this kind of formality, and instead has looked to the “operative ‘force and effect’” of decisions.

All six amicus briefs filed in this case support Sierra Club. One filed by scientists who are former officials at the National Marine Fisheries Service, Department of the Interior and EPA emphasizes that public disclosure of the biological opinions is unlikely to have a chilling effect on candid discussions in a “science-driven process[] like ESA consultation.” Another filed by conservation groups points out that because only around 8% of ESA interagency consultations result in final biological opinions, allowing the deliberative process privilege to apply in this case could deprive the public of an immense amount of information. The conservation groups argue that the services frequently release the types of documents at issue in this case in recognition of the important public interest, for both the regulated industry and conservation advocates, in understanding the Section 7 consultation process.

At oral argument next week, we will have a clearer picture of how far the justices see the reach of the deliberative process privilege extending and their take on the D.C. Circuit opinion written by Kavanaugh – who is no longer the newest member of the court.