Does the deliberative process privilege exemption under the Freedom of Information Act protect a federal agency’s draft documents from disclosure when those documents were created for an interagency consultation and ultimately altered an agency’s decision-making process and subsequent agency action?
This case asks the Supreme Court to determine whether the deliberative process privilege under Exemption 5 of the Freedom of Information Act protects interagency draft documents. The documents in question are draft biological jeopardy opinions produced by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service pursuant to Section 7 of the Endangered Species Act during an environmental consultation with the Environmental Protection Agency regarding a proposed agency regulation. The Sierra Club contends that the requested documents do not fall within the scope of the deliberative process privilege exemption because the jeopardy decision within the draft opinion was final, not tentative, and the documents shaped later agency decisions by requiring the Environmental Protection Agency to discontinue, modify, or seek an exemption for its proposed action. The U.S. Fish and Wildlife Service and the National Marine Fisheries Service argue that the requested documents fall within the scope of the deliberative process privilege exemption because the exemption aims to encourage effective governmental decision-making and must protect inter-agency documents and memoranda that have not been adopted as final to further this goal. By granting certiorari in this case, the Supreme Court will determine the extent to which government agencies can invoke the deliberative process privilege and the correlative scope of the public’s right of access to information under the Freedom of Information Act.
Questions as Framed for the Court by the Parties
Whether Exemption 5 of the Freedom of Information Act, by incorporating the deliberative process privilege, protects against compelled disclosure of a federal agency’s draft documents that were prepared as part of a formal interagency consultation process under Section 7 of the Endangered Species Act of 1973 and that concerned a proposed agency action that was later modified in the consultation process.
In 2012 and 2013, the Environmental Protection Agency (EPA) consulted with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (collectively, the “Services”) to determine whether proposed regulations for cooling water intake structures would negatively affect any species listed under the Endangered Species Act (ESA). Sierra Club, Inc. v. U.S. Fish & Wildlife Serv. at 1007. Section 7 of the ESA requires this consultation and calls for the Services to issue a “written biological opinion” detailing whether a proposed action would jeopardize a listed species. Id.
After reviewing the EPA’s proposed action, the Services composed draft opinions stating that the action was likely to jeopardize a listed species and suggesting “reasonable and prudent alternatives” to the proposed action. Id. As required by the ESA, these draft opinions were available to the EPA as the agency requesting the consultation. Id. at 1008. The EPA did not receive the draft opinions in their entirety; rather, the EPA received parts of the draft opinions and thereafter issued a modified version of the proposed rule. Id. The Services issued a final biological opinion finding that the modified rule did not jeopardize a listed species. Id.
In 2014, the Sierra Club submitted a Freedom of Information Act (FOIA) request for documentation of the EPA’s consultation with the Services. Id. The Services invoked Exemption 5 of FOIA to preclude disclosure of some consultation documents. Id. Exemption 5, which incorporates the deliberative process privilege, protects against disclosure of “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.” Id.; 5 U.S.C. § 552(b)(5).
Believing the Services had wrongfully invoked the deliberative process privilege and withheld documentation, the Sierra Club filed suit against the Services in December 2015. The District Court for the Northern District of California held that four of the documents in question were fully protected by the exemption, one document was partially protected, and eleven documents were not protected. Sierra Club at 1009. The Services appealed. Id.
On appeal, the Court of Appeals for the Ninth Circuit considered whether the records in question were “pre-decisional and deliberative,” as required for proper invocation of FOIA Exemption 5. Id. at 1018. The Court of Appeals found that some of the records met this requirement while others, including the draft biological jeopardy opinions, fell short, affirming in part and reversing in part the district court’s holding. Id.
PURPOSE OF FREEDOM OF INFORMATION ACT AND EXEMPTION 5
Petitioner Services contend that allowing the disclosure of the draft opinions, which were not final, would defeat the purpose of the deliberative process privilege enshrined in Exemption 5 of FOIA. Brief for Petitioners, United States Fish and Wildlife Services et al. at 33–34, 38–44. The Services state that the purpose of the Exemption is to promote frank and open discussion during the decision-making process, without worry about the risk of litigation. Id. at 25, 34, 44. The Services further assert that the Exemption does not contradict FOIA's transparency goal because Congress only intended for governmental agencies to defend and be judged on the final decisions, which were "actually" adopted. Id. at 24–25, 28. The Services maintain that there is no risk of creating secret agency procedures that are hidden from public view because draft opinions are merely preliminary analyses. Reply Brief for Petitioners at 7.
On the other hand, Sierra Club argues that disclosing the draft opinions does not defeat the purpose of Exemption 5 as the Exemption is intended to shield only the decision-making process, not the actual decision of jeopardy conveyed by the draft opinions. Brief for Respondent, Sierra Club Inc. at 47. Sierra Club further counters that disallowing disclosure of the draft opinions would be antithetical to FOIA's accountability purpose. Id. at 29. Sierra Club asserts that the "core function" of FOIA is to force disclosure to allow an "informed citizenry" to hold governmental agencies accountable for their decisions. Id. at 45, 29. Sierra Club maintains that preventing disclosure would foster "secret agency law" prohibited by FOIA, where agencies hide guiding rules and policies from the public view. Id. at 48. Consequently, Sierra Club argues that the Court must construe Exemption 5 narrowly so that government agencies cannot use it as a "back-up provision" to withhold information and defeat FOIA's purpose. Id. at 43–44.
THE DELIBERATIVE PROCESS AND FINALITY
The Services contend that the draft opinions need not be disclosed because they represent pre-decisional documents used in the deliberative process, which is protected by privilege, rather than post-decisional documents. Brief for Petitioners at 37–39. The Services assert that they are only required to disclose post-decisional documents that explain a "final" decision that has been adopted by the agency. Id. at 28–30. According to the Services, the draft constituted a part of deliberations and was not a final decision because the Services did not share the entirety of the opinion with the EPA, the parties continued to deliberate after the Services shared portions of the draft, and the opinion had not been approved for circulation. Id. at 30–32. The Services further argue that the draft could not be a final draft because the Services could still change their mind after the opinion and the draft was not signed, approved, or subject to judicial review. Id. at 28–30. The Services argue that formalities of signing and approving a document for issuance are more than empty formalities and are the very acts that separate a final document from a draft. Reply Brief for Petitioners at 6. The Services maintain that the consultation process was related to both the jeopardy opinion and alternatives to ensure accuracy of the final written biological opinion. Id. at 12. The Services further maintain that senior officials treated the draft as a preliminary analysis that was not finalized because it "needed more work," and the opinion of these officials should be the metric to decide if the decision was final. Id. at 4; Brief for Petitioners at 30, 40–41. The Services also contend that the Ninth Circuit was incorrect in finding that polishing activities, such as removing edits and marginal comments, drafting a cover letter on the agency letterhead, and preparing talking points, were evidence of finality, because agency officials could still change their mind until a final written statement is produced. Brief for Petitioners at 43.
Sierra Club counters that the draft documents need to be disclosed as they are not pre-decisional documents, but rather intermediate decisions that guide further decision-making. Brief for Respondent at 40. Sierra Club argues that the Court has not followed a formal approach to finality and does not rely on signatures or official issuances but rather relies on a fact-specific approach. Id. at 48, 56. Sierra Club contends that the Services “conflate” two separate decisions—the decision on whether EPA's proposed regulation jeopardizes endangered species and the decision on reasonable and prudent alternatives. Id. at 24. Sierra Club contends that the Services would only consult with the EPA regarding reasonable and prudent alternatives if they had already decided that the EPA's proposed regulation jeopardized endangered species. Id. at 22–27. Consequently, Sierra Club argues that the parts of the draft opinions shared to the EPA conveyed the Services’ "final" interim decision of a jeopardy opinion. Id. at 37. Sierra Club maintains that the following deliberative process was a separate process to discuss the reasonable and prudent alternatives. Id. at 23. Thus, Sierra Club asserts that the draft opinions were not part of a deliberative process, but rather a final jeopardy opinion that guided further decision-making. Id. at 40–44. Sierra Club does not directly address the polishing activities relied on by the Ninth Circuit but asserts that the courts have never applied a formalistic approach to decide whether a decision was final or whether parties could still change their mind. Id. at 48–50.
FORCE OF LAW AND DETERMINATIVE EFFECT
The Services argue that the draft opinions are exempt from disclosure because, per Section 7 of the ESA, the opinions would not impose any binding legal obligations on the EPA. Brief for Petitioners at 33–34. The Services argue that the documents do not have the force of law as no party would be able to bring a suit on the basis of the draft opinions. Id. at 32, 35. The Services maintain that the EPA's action to modify the regulation was wholly voluntary because of inter-governmental discussion regarding the effects of the regulation, rather than a belief that the draft opinions had operative effect. Reply Brief for Petitioners at 17. The Services reject any contention that the disclosure of previous draft opinions should serve as precedent because such a decision would discourage voluntary disclosure by governmental agencies. Brief for Petitioners at 47. The Services also assert that the Ninth Circuit's decision was incorrect because deciding whether a document is privileged based on when the proposal is abandoned would cause too much uncertainty for officials in governmental agencies. Id. at 37–38. The Services contended that a document cannot lose its "draft status" merely because the proposal "died on the vine." Id. at 39.
Conversely, Sierra Club argues that the draft opinions had a determinative effect on the EPA's decision to revise the regulation. Brief for Respondent at 34–36. Sierra Club argues that a draft can have the force of law despite not imposing formal legal obligations because the EPA is also “technically free to disregard” the final biological opinion. Id. at 32. Sierra Club maintains that the draft opinions have appreciable legal consequences because, as a practical matter, the agency must adopt the suggested alternatives. Id. Sierra Club notes that governmental agencies will follow the Services' recommendation because of the "substantial risk" that a regulation would be deemed unlawful if the agency did not follow the recommendation. Id. at 34. Thus, Sierra Club maintains that the draft opinions should be disclosed as they had a real operative effect on the EPA's decision. Id. at 48, 56. Sierra Club also contends that the Court could not rely solely on the designation of "draft" or "final" made by the governmental agency as this provides the agencies too much discretion, allowing for the possibility of abuse. Id. at 51. Sierra Club advocates for a fact-specific approach rather than a formalistic approach, contending that the former is necessary to hold government agencies accountable. Id. at 56.
BALANCING ACCOUNTABILITY AND CONFIDENTIALITY
The Services assert that requiring disclosure of an agency’s draft documents would chip away at the deliberative process privilege and threaten the quality of agency decisions. Reply Brief of Petitioners, U.S. Fish and Wildlife Service et al. at 15. The Services warn against an “effects-based approach,” which would permit disclosure of documents that influenced an applicant’s decision to change a proposed agency action. Id. at 14–15. Such an approach, the Services contend, would leave agency officials unable to predict the ensuing effects of their recommendations. Id. at 19. The Services believe that this uncertainty regarding the scope of the deliberative process privilege would have a chilling effect by discouraging full and frank discussions among government officials. Brief of Petitioners, U.S. Fish and Wildlife Service et al. at 25.
On the other hand, Sierra Club contends that public access to documents containing an agency’s reasoned decision-making is necessary to hold agencies accountable. Brief of Respondent, Sierra Club, Inc. at 29–30. In agreement, the American Forest Resource Council, National Association of Homebuilders, NFIB Small Business Legal Center, and the American Farm Bureau Federation (collectively, “American Forest Resource Council”) emphasize that draft documents could show when agency action is tainted by outside influence, such as money or politics. Brief of Amici Curiae American Forest Resource Council et al., in Support of Respondent at 22. The Reporters Committee for Freedom of the Press and twenty-eight media organizations, also in support of the Sierra Club, worry about agency abuse of the deliberative process privilege, stating that agencies sought to withhold information by invoking the privilege in 44% of disclosure requests in 2019. Brief of Amici Curiae The Reporters Committee for Freedom of the Press and 28 Media Organizations, in Support of Respondent at 7. Regarding the Services’ assertion that disclosure would have a chilling effect, Andrew Rosenberg, Jacob Carter, and Joel Clement of the Union of Concerned Scientists argue that there is no data supporting that claim. Brief of Amici Curiae Andrew Rosenberg, Jacob Carter, and Joel Clement, in Support of Respondent at 16.
AVOIDING REGULATORY CONFUSION
The Services also argue that, in addition to promoting full and frank discussion, the deliberative process privilege protects against “premature disclosure of proposed policies.” Brief of Petitioners at 24. The Services contend that premature disclosures could lead to regulatory confusion by detailing agency considerations that, in the end, do not constitute the ultimate reasoning for an agency’s action. Id. Consequently, the Services believe that compelling disclosure of draft documents could “mislead the public,” as these documents are not intended to serve as regulatory guidelines. Id. at 24.
Sierra Club, however, argues that regulated entities have a right to know the reasons underlying a decision by their regulating agency. Brief of Respondent at 30. In agreement, the American Forest Resource Council argues that it is not right to withhold explanations when an agency’s intermediate decisions can nonetheless subject applicants to additional requirements. Brief of Amici Curiae American Forest Resource Council et al. at 24. The Center for Biological Diversity and the Defenders of Wildlife, also in support of Sierra Club, point out that only a small portion of the thousands of consultations sought each year pursuant to the ESA result in the issuance of a final opinion, making the need for transparency at the draft-document level all the more important. Brief of Amici Curiae Center for Biological Diversity and Defenders of Wildlife, in Support of Respondent at 20.
- Ellen M. Gilmer, Supreme Court Environmental Cases Could Stretch to Climate, Coal, Bloomberg Law (Sept. 29, 2020).
- Ellen M. Gilmer, Supreme Court to Review Endangered Species FOIA Case (1), Bloomberg Law (Mar. 2, 2020).