When does transparency hinder the ability of policy experts to deliberate?
In the United States Supreme Court
|November 2, 2020
|March 4, 2021
|Ninth Circuit Court of Appeals
|U.S. Fish and Wildlife Service, et al.
|Sierra Club, Inc.
On March 4, 2021, the Supreme Court ruled in favor of the federal agencies. The agencies do not need to produce the “draft biological opinions” for the Sierra Club based on the FOIA request.
Scroll down for our Decision Analysis.
Argument Analysis: November 18, 2020
This case asks the Supreme Court to determine whether a federal agency must make publicly available certain documents involved in its decision-making process.
An environmental group filed a Freedom of Information Act (FOIA) request to two federal agencies to turn over a set of documents relating to the Environmental Protection Agency’s decision to regulate cooling water intake structures. The EPA regulates these structures because of their potentially harmful effects on wildlife:
Across the United States, thousands of large industrial facilities, power plants, and other manufacturing and processing complexes draw billions of gallons of water each day from lakes, rivers, estuaries and oceans in order to cool their facilities through cooling water intake structures. These structures can harm fish, shellfish, and their eggs by pulling them into the factory’s cooling system; they can injure or kill other aquatic life by generating heat or releasing chemicals during cleaning processes; and they can injure larger fish, reptiles and mammals by trapping them against the intake screens. Section 316(b) of the Clean Water Act, 33 U.S.C. § 1326(b), directs the Environmental Protection Agency (EPA) to regulate the design and operation of cooling water intake structures to minimize these adverse effects.
Sierra Club, Inc. v. U.S. Fish & Wildlife Serv., 925 F.3d 1000, 1017 (9th Cir. 2019).
When faced with the FOIA request, the Petitioning agencies, the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS), declined to turn over certain documents it labeled draft biological opinions. The agencies had submitted the draft opinions to EPA to assist the EPA in determining the impact of its proposed rule on endangered species.
The issue before the Supreme Court is whether the draft biological opinions fall under an exemption to the Freedom of Information Act’s general mandate that federal agencies make documents publicly available.
The Proposed Regulations and Consultation Process
In April 2011, the EPA proposed new regulations for certain cooling water intake structures. Federal law requires the EPA to consult with the Respondent agencies, FWS and NMFS (together, the “Services”), when a regulation may affect an endangered species. So the EPA reached out to FWS and NMFS to determine the impacts of the proposed regulations.
In 2012, EPA consulted informally with the Services. In 2013, the EPA requested a formal consultation with the Services, and the agencies agreed that FWS and NMFS would each send a “draft biological opinion” to the EPA by December 6th of the year. The reports would indicate whether the agencies found the rule would jeopardize endangered species.
In December, however, the Services sent only portions of their draft biological opinions. Around the same time there was a telephone call between the FWS Deputy Solicitor General and the General Counsel of the EPA to “touch base . . . about transmitting a document to the EPA.” The Sierra Club suggests that the attorneys were discussing how to avoid creating public records of the draft opinions.
By the end of the year, the Services sent a different document: joint recommendations to the EPA (“reasonable and prudent alternatives”) on how to change the proposed rule. In March 2014, the EPA came out with a new rule. And in April 2014, the Services sent a final joint biological opinion.
The FOIA Request
The Sierra Club wants to know what those December 2013 draft biological opinions said because they obviously caused the EPA to change its proposed rule. So Sierra Club made a Freedom of Information Act (“FOIA”) request for all documents relating to the consultation process between the EPA and the Services.
The Services sent over a bunch of documents in response to the FOIA request but excluded the December 2013 draft biological opinions. The Services claimed the draft biological opinions are exempt from FOIA’s production mandates.
The Freedom of Information Act and Exemptions
Congress passed the Freedom of Information Act allowing public access to agency records so people would know what the government is up to, or to encourage an informed citizenry. From FOIA.gov:
Since 1967, the Freedom of Information Act (FOIA) has provided the public the right to request access to records from any federal agency. It is often described as the law that keeps citizens in the know about their government. Federal agencies are required to disclose any information requested under the FOIA unless it falls under one of nine exemptions which protect interests such as personal privacy, national security, and law enforcement.
You can read the nine exemptions here. The one relevant to this case is Exemption 5, the Deliberative Process Privilege, which is aimed to protect the “decision making processes of government agencies.” Nat’l Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975). The exemption protects documents “reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” Id.
The point of the exemption is that agencies should be able to deliberate openly without worrying about how the public will interpret their primitive discussions on an issue. With frank dialogue, the final decisions and policies will be better.
How do courts decide whether a document falls within the Deliberative Process Privilege?
The Ninth Circuit Court of Appeals, the lower court in the case, interpreted the privilege narrowly. And ruled in favor of the Sierra Club. The court asked whether the documents attempting to claim the privilege are both pre-decisional and deliberative. If not, they must be produced. Regarding the 2013 draft biological opinions, the Ninth Circuit determined that they were not pre-decisional.
A document is pre-decisional if it is “prepared in order to assist an agency decision-maker in arriving at his decision, and may include recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency.” Sierra Club, Inc. v. U.S. Fish & Wildlife Serv., 925 F.3d 1000, 1012 (9th Cir. 2019).
According to the court, the 2013 draft biological opinions represent the final views of the Services in regards to the proposed rule in question at the time. Despite that they were not issued publicly and despite that the agencies labeled them as drafts, the opinions did constitute the final opinions of the agencies and they did cause a policy change.
We note that the documents do not contain line edits, marginal comments, or other written material that expose any internal agency discussion about the jeopardy finding. Nor do these documents contain any insertions or writings reflecting input from lower level employees. The two December 2013 opinions both state they were prepared on behalf of the entire agency and represent that agency’s opinion. And the record shows that preparations were being made for the NMFS opinion (NMFS 44516.1), as is, to be publicly “roll[ed] out” and published in the administrative record; the FWS opinion (FWS 252), which includes its agency’s seal/header, had received final edits from a senior official and was just awaiting his autopen signature.
Sierra Club, Inc. v. U.S. Fish & Wildlife Serv., 925 F.3d 1000, 1017 (9th Cir. 2019).
Accordingly, the Ninth Circuit ruled the agencies are under obligation to provide them in response to a FOIA request.
The Services petitioned for Supreme Court review. In the meantime, the parties agreed to hold off on the agencies’ production of the documents.
The Services argue the draft biological opinions are exempt from public request under the Deliberative Process Privilege.
They argue the draft opinions are pre-decisional because they were created for purposes of discussion and they provide “a valuable deliberative tool.” In fact, the agencies argue, the opinions were “twice removed” from being final: they had not been approved for sending to the EPA, and they had not been approved for final issuance. According to the agencies, the draft opinions were prepared for supervisors with decision-making authority. Because they had not been approved, the decision-makers were free to change their minds. Thus, they are “classic examples of a deliberative document.”
The Petitioners rely on Renegotiation Bd. v. Grumman Aircraft (1975) to characterize the draft opinions as exempt. In Grumman Aircraft, the Supreme Court determined that certain documents transmitted between agencies were exempt as pre-decisional. Although the documents were labeled “final” by the transmitting agency, the transmitting agency was not the one with the authority to finalize the decisions.
Petitioners argue the Grumman Aircraft holding applies to the draft opinions, which were also intra-agency documents coming from an agency which was merely involved in the deliberative process for the EPA rule.
Petitioners argue the lower court ruling undermines the purpose of the deliberative process privilege:
If the privilege for agencies’ draft documents were made dependent on contingent events like whether the agency action under review was later modified, or whether staff members polished the drafts and made preparations to finalize them, then agency personnel could not have confidence that their draft analyses and recommendations would be protected, and some employees would likely be less candid as a result. The Ninth Circuit’s flawed standard for the deliberative process privilege would also undermine the authority of agency decisionmakers to pause a decisionmaking process that is nearing completion, and it would force agencies to face criticism for, and potentially litigation over, matters the agency considered before making up its mind.
Brief of Petitioners (internal citations omitted).
According to the Sierra Club, the draft biological opinions caused the EPA to amend its final rule. They were consequential and thus must be produced. Petitioners try to characterize the draft opinions as deliberative and pre-decisional, but at least, Respondents argue, they provided consequential intermediate decisions within a multi-step agency process. Exemption 5 does not allow withholding documents directly causing such important decisions. Respondents’ brief cites a justification provided in 1975 Supreme Court precedent: “FOIA mandates disclosure of ‘the reasons’ that ‘supply the basis for an agency policy actually adopted.’” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 152-53 (1975).
Respondents acknowledge the precedent put forth by Petitioners, Grumman Aircraft. In Grumman, Petitioners point out, the transmitting agency was a lower-level agency with no decision-making authority. In contrast, in this case the Services are responsible for providing jeopardy opinions which influence the final EPA decision:
Given the ESA’s unyielding prohibitions and the Services’ wildlife-related expertise, the Services’ conclusions have practical and legal consequences such that action agencies cannot “in reality” defy them.
Brief of Respondents.
Respondents argue the government cannot shield consequential documents by labeling them “pre-final” and “pre-decisional.” Of course in agency work, there is always more work to be done. But the purpose of FOIA is to provide information relating to the decisions made by government agencies. As such, the Services must produce the draft biological opinions.
The Supreme Court will hear arguments on November 2, 2020.
March 4, 2021
On Thursday March 4, 2021, the Supreme Court ruled in favor of the federal agencies in U.S. Fish and Wildlife Service v. Sierra Club. The agencies are not required to produce the “draft biological opinions” to the Sierra Club based on the FOIA request.
The Sierra Club filed a Freedom of Information Act (FOIA) request for certain documents from two federal environmental agencies. The public has the right to information underlying an agency’s final decisions, so FOIA allows people to request certain agency documents. The issue in the case is whether the documents at issue fall within an exception to FOIA and thus the agency does not have to produce them.
The documents the Sierra Club requested are “draft biological opinions” relating to the agencies’ decisions to regulate cooling water intake structures. The EPA regulates these structures because of their potentially harmful effects on wildlife.
The agencies’ defense was that the “draft” documents were not final. They argue that the “draft” opinions constitute internal memoranda, which means they are protected by the “deliberative process privilege.”
The “deliberative process privilege” is Exception 5 to FOIA’s disclosure mandates. It 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.” The agencies argued that because the draft opinions were not final documents, they were internal “deliberative” documents, and the privilege applies.
The problem with applying the “deliberative process privilege,” the Sierra Club argued, is that the agency actually did treat the documents as the final. The agencies took action based on the “draft” biological opinions at issue. The agency just called them “draft” opinions so they could shield them from the public. But the opinions were consequential documents, documents on which the agency relied. Because FOIA gives the public the right to know how their government operates, the Sierra Club argued, the opinions must be produced.
The Supreme Court Decision
In a 7-2 split and the first merits opinion for Justice Barrett, the Supreme Court ruled in favor of the federal agencies. The Court did not buy the Sierra Club’s categorization of the draft opinions as final by virtue of their being consequential within the agency. The Court said:
What matters is if the agency treats the document as its final view and concludes the deliberative process by which governmental decisions and policies are formulated, giving the document “real operative effect.”
The administrative context confirms that the draft opinions were subject to change and had no direct legal consequences. Because the decisionmakers neither approved the drafts nor sent them to the EPA, they are best described not as draft biological opinions but as drafts of draft biological opinions. While the drafts may have had the practical effect of provoking EPA to revise its rule, the privilege applies because the Services did not treat the drafts as final.
Justice Breyer dissented from the majority opinion, with Sotomayor joining.
Breyer started by outlining his method of evaluation: when evaluating whether the “deliberative process privilege” applies, a court should look at the function the document plays within the agency’s deliberative process. He then evaluated the function of the “draft biological opinions” at issue in the case.
According to Breyer, the draft biological opinions played a consequential role in the agencies’ deliberative process and so the deliberative process privilege likely does not apply to them:
In sum, the likely finality of a Draft Biological Opinion, its similarity to a Final Biological Opinion, the similar purposes it serves, the agency’s actual practice, the anomaly that would otherwise exist depending upon the presence or absence of a private party, and the presence of at least some regulation-based legal constraints—convince me that a Draft Biological Opinion would not normally enjoy a deliberative privilege from FOIA disclosure.
Breyer would have remanded the case for additional fact-finding as to whether the documents were still a work in progress (e.g. still going through editing), but that likely the documents were final enough that they agency must produce them under FOIA.