U.S. Fish and Wildlife Service v. Sierra Club
Wikipedia · Justia (with opinion) · Docket · oyez.org
Argued on Nov 2, 2020.Decided on Mar 4, 2021.
Petitioner: United States Fish and Wildlife Service, et al..Respondent: Sierra Club, Inc..
Advocates: Matthew Guarnieri (for the petitioners)
Sanjay Narayan (for the respondent)
Facts of the case (from oyez.org)
Industrial facilities, power plants, and other manufacturing complexes use water from lakes, rivers, estuaries, and oceans to cool their facilities through cooling water intake structures. Because these structures potentially cause significant harm to aquatic life, Section 316(b) of the Clean Water Act directs the Environmental Protection Agency (EPA) to regulate their design and operation. In April 2011, the EPA proposed new regulations for cooling water intake structures. As part of the rule-making process and required by Section 7 of the Endangered Species Act, in 2012, the EPA consulted with the Fish and Wildlife Service and the National Marine Fisheries Service about the potential impacts of the regulations and produced a written biological opinion on the impacts of the proposed agency action.
The Sierra Club made a Freedom of Information Act (FOIA) request for records generated during the EPA’s rule-making process, including the documents generated as part of the consultation with the Services. The Services withheld some of the requested records, citing Exemption 5 of FOIA, which shields from disclosure documents subject to the “deliberative process privilege.” The district court determined that 12 of the 16 requested records were not protected to the privilege and ordered disclosure. The U.S. Court of Appeals for the Ninth Circuit affirmed the lower court’s order to disclose some of the records but reversed as to two of the records.

Question
Does Exemption 5 of the Freedom of Information Act, by incorporating the deliberative process privilege, protect 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?

Conclusion
The deliberative process privilege protects from disclosure under the Freedom of Information Act (FOIA) an agency’s in-house draft biological opinions that are both predecisional and deliberative, even if the drafts reflect the agencies’ last views about a proposal. Justice Amy Coney Barrett authored the 7-2 majority opinion.
The deliberative process privilege of Exemption 5 of FOIA protects from disclosure “documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” The rationale behind the exemption is to encourage officials to communicate candidly with each other during the deliberative process. However, it does not apply to documents reflecting the final agency decision. Documents are “predecisional” if they were generated before the agency’s final decision on the matter and “deliberative” if prepared to help the agency formulate its position.
The documents at issue in this case were drafts of biological opinions because “more work needed to be done.” As such, they could not have been generated before the agency’s final decision had been made. That the recommendations ultimately proved to be the last word does not affect their status as “predecisional.”
Justice Stephen Breyer authored a dissenting opinion, in which Justice Sonia Sotomayor joined. Justice Breyer argued that in the specific context of the rulemaking processes of the Fish and Wildlife Service and the National Marine Fisheries Service, so-called Draft Biological Opinions reflect “final” decisions regarding the “jeopardy” the EPA’s then-proposed actions would have caused, and as such, would normally fall outside, not within, Exemption 5.