OPINION ANALYSIS

Court favors deliberative-process privilege protections over FOIA transparency goals

Notwithstanding the Freedom of Information Act’s primary goal of promoting transparency in government decision-making, the Supreme Court on Thursday ruled by a 7-to-2 vote that the public policy of facilitating agency candor in exercising its expertise in preliminary agency deliberations can outweigh such transparency and accountability concerns. Justice Amy Coney Barrett delivered the 11-page opinion, her first majority opinion since joining the court in October. It was a natural debut given that the case, U.S. Fish and Wildlife Service v. Sierra Club, was the first oral argument that Barrett heard after joining the bench.

The case presented the question of whether FOIA’s deliberative-process privilege exempts from disclosure certain documents prepared during a statutorily required interagency consultation process between the U.S. Fish and Wildlife Service and National Marine Fisheries Service (collectively, “the services”) and the Environmental Protection Agency.

In the interest of transparency, FOIA provides the public with a right to access federal records, but exempts certain records from disclosure, including those that would be privileged against discovery in civil litigation. These include records that fall under the deliberative-process privilege, which promotes candor in agency decision-making by protecting from disclosure documents that are “predecisional” and “deliberative.”

At issue in this case were records prepared by the services during the interagency consultation process required under Section 7 of the Endangered Species Act, which prohibits federal agency actions that jeopardize the continued existence of listed species or their habitats. In 2011, EPA proposed regulations for structures known as cooling water intakes, which draw large volumes of water from the ocean or other water bodies in order to cool down industrial equipment. The agency consulted with the services regarding the regulations’ potential to cause “jeopardy” due to the harm such intake structures can cause to aquatic life. Services staff completed draft biological opinions in December 2013, finding that EPA’s proposed regulations would jeopardize listed species and identifying “reasonable and prudent alternatives.” Consultation continued, and in 2014, EPA sent the services a revised rule. The services issued a final biological opinion finding “no jeopardy,” and EPA issued its final rule in that same year.

Sierra Club then submitted a FOIA request for the December 2013 biological opinions, among other documents. A federal district court ruled that the documents were not protected, and the U.S. Court of Appeals for the 9th Circuit agreed in part, determining that some of the documents, including the December 2013 biological opinions, were not privileged.

Joining Barrett in the majority to overturn the 9th Circuit were Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Elena Kagan, Neil Gorsuch and Brett Kavanaugh. Unsurprisingly, the court adopted the argument that a proposal that “dies on the vine” remains predecisional and deliberative because “[w]hat matters … is not whether a document is last in line, but whether it communicates a policy on which the agency has settled.” Barrett wrote that courts should look to whether “the agency treats the document as its final view on the matter,” and further specified that the document will have a “real operative effect” and will not leave agency decision-makers “free to change their minds.”  

The majority rejected Sierra Club’s argument that the 2013 biological opinions had a real operative effect on EPA. Barrett emphasized that, for documents to fall outside the deliberative-process privilege, they must have legal consequences, not merely practical consequences — a distinction she had raised during oral argument. Barrett described a final biological opinion as having legal consequences if it “alters ‘the legal regime to which the action agency is subject, authorizing it’ to take action affecting an endangered species ‘if (but only if) it complies with the prescribed conditions.’” A draft biological opinion, on the other hand, she described as having only practical consequences if the agency “adopt[s] an alternative approach that avoids jeopardizing an endangered species.” She reasoned that “many documents short of a draft biological opinion could prompt an agency to alter its rule,” such as emails or memoranda, which clearly would not be considered an agency’s final decision.

Barrett went on to explain that the services did not treat the 2013 biological opinions as final, and contended the documents were in fact drafts of drafts — “a far cry from an ‘agency decision already made.’” She ran through the series of arguments the services provided. The decision-makers did not approve the documents, did not send them to EPA, and determined that “more work needed to be done.” Satisfied by these factors, Barrett concluded that the “deliberative process worked as it should have: The Services and the EPA consulted about how the rule would affect aquatic wildlife until the EPA settled on an approach that would not jeopardize any protected species.”

Barrett seemed to indicate during oral argument that she favored a bright-line standard over a fact-intensive inquiry. However, to address concerns that agency officials may label a document as “draft” to avoid disclosure, she wrote that “if the evidence establishes that an agency has hidden a functionally final decision in draft form, the deliberative process privilege will not apply.” In the present case, however, she wrote that the services “did not engage in such a charade.”

Interestingly, Barrett did not go into any detail to explain how, if at all, disclosure of the draft biological opinions in contexts such as this case might discourage agency candor. In light of its paramount concern for guarding agency space to deliberate, the court seems to dismiss any need for an explicit showing of a potential chilling effect on such deliberations.

The court reversed the 9th Circuit and remanded to the district court to determine whether any portions of the documents can be separated out from the privileged portions.

Justice Stephen Breyer, joined by Justice Sonia Sotomayor, dissented, providing five reasons the 2013 biological opinions reflect a final agency decision. First, Breyer reasoned that “[t]he mere possibility of a future change does not alter the finality, or the final effect, of the original document.” He pointed to cases in which the services have issued a final biological opinion, but then have withdrawn it and issued a new biological opinion.

Second, Breyer emphasized that a final biological opinion and draft opinion “serve the same functions within the administrative process.” The only difference, he noted, is that the services must make the draft biological opinion available to EPA before the final biological opinion is issued. Breyer then pointed out a distinction the majority glossed over — consultation over the transmitted draft biological opinion was to determine reasonable alternatives to EPA’s original proposed action, not to change the services’ environmental analysis. The purpose of providing EPA with a draft biological opinion is “simply [to] allow[] the EPA to make its choice before a Final Biological Opinion issues.”

Third, Breyer pointed out that it is the draft biological opinion, not the final opinion, that “triggers within EPA the process of deciding what to do about [the services’] conclusions.” Breyer referenced how uncommon it is for the services to issue a final biological opinion finding jeopardy — only twice over about a seven-year period in which over 6,800 formal consultations occurred.

Fourth, Breyer argued the public policy of encouraging agency candor in deliberations is not undermined by allowing disclosure. The services and even EPA commonly disclosed draft biological opinions to the public and are required to do so if requested by a private applicant. Thus, services staff understand draft biological opinions may be disclosed. Breyer further suggested that this discrepancy between disclosure requirements for private and agency applicants creates a needless anomaly.

Finally, Breyer contended that the regulatory requirement not to issue a final biological opinion once a draft opinion is under review and the limits the draft biological opinion placed on EPA’s available alternatives constitute legal consequences, not merely practical ones.

Breyer concluded the fact-intensive question as to whether some of the documents at issue are draft biological opinions or drafts of draft biological opinions remains, given that some of the documents contain “highlighting and editing marks.” He would remand to the 9th Circuit to make this determination and conduct a segregability analysis if the court determines certain documents to be drafts of drafts. 

For open government advocates, the majority’s characterization of the services’ consultation and biological opinion issuance process may be cause for concern. The majority seems to suggest that the only time a biological opinion that finds jeopardy can be disclosed is if an agency decides to risk moving forward without any changes to its proposed action, or seeks a rarely granted exemption from a cabinet-level committee. As such, the decision may serve to further obscure government decision-making from public scrutiny and limit public involvement. On the other hand, the court undoubtedly left the door open for fact-specific inquiry in future cases regarding whether draft documents are “functionally final.” And in remanding the case, it affirmed that even when documents are privileged, federal agencies nonetheless must release any factual, non-deliberative information within any protected documents.