Use of ‘deliberative process privilege’ ruling is a narrow win for government

As the administrative state has expanded, so too has the importance of the Freedom of Information Act. FOIA ensures public scrutiny of an often unaccountable executive branch and should be zealously defended against any government attempt to avoid its requirements.

Earlier this month, the Supreme Court delivered its decision in U.S. Fish and Wildlife Service v. Sierra Club, 2021 DJDAR 2025. The case gave the court an opportunity to scrutinize the government's use of the so-called "deliberative process privilege" to withhold documents requested under FOIA. Although it ultimately sided with the government petitioners, the court's majority opinion -- the first penned by Justice Amy Coney Barrett -- takes seriously the importance of government accountability and highlights the narrowness of FOIA's exemptions.

The "deliberative process privilege" is a common law privilege that permits the government to withhold pre-decisional, deliberative documents from discovery in civil litigation. Exemption 5 to FOIA's general rule of disclosure incorporates the deliberative process privilege. The privilege is frequently invoked by agencies seeking to withhold documents in response to a FOIA request.

The dispute in Sierra Club arose from an inter-agency consultation conducted under Section 7 of the Endangered Species Act. Section 7 requires that federal agencies consult with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service to determine whether a proposed regulatory action (such as a rulemaking or permit) may "jeopardize" the continued existence of protected wildlife. Following such consultation, both Services issue what are known as "biological opinions." These documents carry significant regulatory consequences and can result in substantial project modifications as well as costly mitigation.

In 2011, the U.S. Environmental Protection Agency issued a proposed rule to regulate certain industrial cooling structures (which by drawing in large volumes of water from adjacent water bodies often harm aquatic organisms, including some endangered species), and initiated consultation with the aforementioned Services, under Section 7. After the Services had prepared near-complete draft biological opinions (portions of which were shared with EPA) concluding that EPA's rule would result in jeopardy to protected species, the Services' leaders made a last-minute decision not to send the draft opinions to EPA, but rather to remand them to their staff for further work. Shortly thereafter, the EPA, likely seeing the handwriting on the wall, amended its original proposal. Its revised proposal proved to be sufficiently different from the original to elicit "no jeopardy" biological opinions from the Services.

A coalition of environmental groups then sued EPA over its final rule. While that litigation proceeded, one of the challengers -- Sierra Club -- submitted a FOIA request for the Services' original draft biological opinions and then sued when the agencies, citing the deliberative process privilege, declined to disclose the documents. Sierra Club prevailed in part in the district court and 9th U.S. Circuit Court of Appeals, before the Supreme Court granted review.

Throughout the FOIA litigation, the government argued for the application of the deliberative process privilege on the grounds that the draft biological opinions were never formally approved (via official signature) and were never formally transmitted to EPA. The government took the position that, as draft documents, the biological opinions were necessarily protected by the privilege.

A seven-justice Sierra Club majority agreed with the government that the biological opinions were protected from disclosure. But in a nod to FOIA's policy favoring disclosure, the majority rejected a formalist approach to the privilege. Instead, they adopted a "functional ... inquiry" which looks to the "real operative effect" of the sought-after documents. Thus, disclosure should hinge on whether the agency has treated a document's contents as the last word on a given proposal: merely stamping "draft" on a document (or withholding official signature) cannot trigger application of the privilege. Here, however, there was no such gamesmanship because the draft biological opinions were, in the majority's estimation, "drafts of drafts" and therefore were truly pre-decisional and deliberative.

Justice Stephen Breyer, joined by Justice Sonia Sotomayor, dissented. Although agreeing with the majority's overall approach, Justice Breyer could not accept the majority's conclusion that, based on the current record, the draft biological opinions were truly "drafts of drafts." His view was informed by an understanding of the consultation process markedly different from the majority's. For Justice Breyer, draft biological opinions should, despite their name, presumptively be subject to disclosure because they almost without exception have an operative effect on the consulting agency's action. It wasn't just that EPA here appeared to swerve dramatically in response to the Services' near-complete draft opinions: as Sierra Club's amici noted, between 2008 and 2015, the Services conducted nearly 7,000 consultations yet only two of those resulted in a final jeopardy opinion. For Justice Breyer, these on-the-ground realities strongly supported viewing draft biological opinions as non-deliberative documents. But he agreed with the majority that, if the opinions here were truly "drafts of drafts" -- a question he believed required additional fact-finding to answer -- then the privilege ought to apply.

Another aspect of the decision in Sierra Club that should give comfort to FOIA defenders is that the oft-cited yet questionable rationale for the deliberative process privilege -- shielding deliberative materials from public scrutiny promotes candor among agency staff -- did not underpin either of the court's opinions. Although Justice Barrett briefly noted (in background) that this "full and frank discussion" rationale has been put forward to justify the privilege, her opinion does not rely upon it when analyzing the privilege's application to the biological opinions. For his part, Justice Breyer expressly rejected the applicability of the rationale to the biological opinions, explaining that Service staff can have no legitimate expectation of privacy given, among other things, federal agencies' frequent practice of voluntarily releasing draft biological opinions to the public. The court's apparent unease with this justification of the privilege is merited. As we noted in an op-ed last December, there are no empirical data suggesting that public transparency will undermine the quality of government decision-making. And to merely assume such a proposition to be true would conflict with the American system of government, which correctly places popular accountability at its core.

In summary, the decision in Sierra Club is a narrow win for the government. The rule set forth by Justice Barrett's majority opinion will reliably favor the government and disfavor disclosure, but it stops short of giving agencies an easy "draft-stamping" end-run around FOIA. And, to be fair, those who favor a strong pro-disclosure policy couldn't really have hoped for more from the court. After all, the deliberative process privilege has been codified in FOIA (although Congress in 2016 amended the exemption to allow for disclosure of deliberative documents more than 25 years old). But the dispute in Sierra Club, and the government's frequent use of the deliberative process privilege to keep the public in the dark, should signal to Congress that further reform of Exemption 5 should be a legislative priority. 