The US Supreme Court ruled 7-2 Thursday to limit the scope of the Freedom of Information Act (FOIA) by expanding the deliberative process privilege exception to the Act’s disclosure requirement to include “in-house drafts of biological opinions that are both predecisional and deliberative, even if the drafts reflect the agencies’ last views about a proposal.”
The case, US Fish and Wildlife Service v. Sierra Club, concerns the process leading to a 2014 Environmental Protection Agency (EPA) rule about the design of “cooling water intake structures.” The structures draw water in from nearby sources to cool industrial equipment. Because the structures commonly intake aquatic life with the water, the EPA was required to consult with the US Fish and Wildlife Service and the Marine Fisheries Service on the environmental impact the structures would have on species protected by the Endangered Species Act. The Services sent “draft biological opinions” in response to the EPA’s first proposed rule that concluded that the proposed rule would likely harm the protected species. A year later, the EPA proposed a new rule. After the Services issued a “joint final” biological opinion, the rule went into effect.
Sierra Club later requested records of the Services’ consultations with the EPA under the FOIA, which generally allows the public to request the disclosure of certain government agency documents. However, the law has several exceptions. The Services invoked the “deliberate process privilege” exception, which applies to documents “that reflect an agency’s preliminary thinking about a problem, as opposed to its final decision.” The exception is meant to “improve candor” in negotiations between agency officials who might not do so otherwise, in fear that anything they say might become “a potential item of discovery and front page news.” Sierra Club sued the Services, arguing that the exception did not apply to the draft biological opinions. The US Court of Appeals for the Ninth Circuit agreed, holding that the draft biological opinions must be disclosed because they represented the Services’ “final opinion” concerning the EPA’s initially proposed rule.
In her first majority opinion for the Supreme Court, Justice Amy Barrett explained that while the exception applies to “predecisional, deliberative documents” and not “documents reflecting a final agency decision and the reasons supporting it,” she argued that a “document is not final solely because nothing else follows it.” Instead, the crucial inquiry is “whether the agency treats the document as its final view on the matter,” which depends on whether the document has “operative effect.” Despite Sierra Club’s contentions that the draft biological opinions had an operative effect by prompting the EPA to revise its proposed rule, and that they were the Services’ “final view” on the initial proposal, Barrett reasoned that an “effects-based test” is not “the right one” because many actions might prompt an agency to amend a proposed rule. The draft biological opinions were not the Services’ final view because “decision makers at the Services neither approved the drafts nor sent them to the EPA.” Therefore, the opinions only “reflect[ed] a preliminary view—not a final decision” and were “both predecisional and deliberative.”
The two dissenting justices, Justices Stephen Breyer and Sonia Sotomayor, argue that since agencies can revoke, amend, or otherwise change their rules at will, the “mere possibility of a future change does not alter the finality, or the final effect, of the original document.” In addition, draft biological opinions serve the same administrative functions as final biological opinions, and both “have substantially the same effect” on the relevant agency.
