This case concerns the scope of the deliberative process privilege of Exemption 5 of the Freedom of Information Act (“FOIA”). The Sierra Club seeks documents produced by the Fish & Wildlife Service and the National Marine Fisheries Service during the formal consultation process between the Services and the EPA on a proposed EPA rule. The Services drafted biological opinions reflecting the agencies’ view that the proposed EPA rule would jeopardize endangered species, and before finalizing the opinions, transmitted the substance of the documents to the EPA. The EPA then amended and reissued the proposed rule. The Sierra Club seeks the biological opinions for the EPA rule as originally proposed as well as related documents. The Services claim that the deliberative process privilege allows the agencies to withhold the documents. The District Court ordered most of the documents released in full, and the Ninth Circuit affirmed most of the order to compel disclosure. In particular, both courts found that the biological opinions were not predecisiomal or deliberative, and thus was not protected by the deliberative process privilege.
The Environmental Protection Agency (EPA) is tasked with regulating the design and operation of cooling water intake structures to reduce their potential harm. Section 7 of the Endangered Series Act (ESA) requires that federal agencies conduct a “formal consultation” with the United States Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (collectively, “the Services”) if a proposed agency action “may affect listed species or critical habitat.” As part of the consultation, the Services must provide the EPA an opinion on whether the proposed action is “likely to jeopardize” the continued existence of a listed ESA species or habitat. If the Services issue a “jeopardy” opinion, they must “include reasonable and prudent alternatives, if any.”
The EPA initiated a formal consultation process in 2013. The Services determined that the EPA’s proposed rule would cause jeopardy to protected ESA species and critical habitats. The Services included reasonable and prudent alternatives in their draft opinions and sent portions of the draft opinions to the EPA, but never formally transmitted the opinions in their entirety.
In March 2014, the EPA issued an updated version of its rule, incorporating feedback from the draft jeopardy opinions. After additional back-and-forth, the Services issued a second set of opinions on May 19, 2014. In their final opinion, the Services held that there was “no jeopardy” from the revised version of the proposed rule. EPA issued the final Cooling Water Intake regulation the same day.
On August 11, 2014, the Sierra Club submitted Freedom of Information Act (FOIA) requests to the Services for records related to the consultation. The Services produced some documents, but withheld others under FOIA’s Exemption 5, which shields federal agencies from disclosing “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.” Exemption 5 includes the “deliberative process privilege.”
FOIA mandates a “broad disclosure of Government records,” but lists nine exemptions under which agencies can withhold documents. The Supreme Court has “consistently stated that FOIA exemptions are to be narrowly construed.”
Exemption 5 protects “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 deliberative process privilege, which is included in FOIA’s Exemption 5, protects documents reflecting advisory opinions, recommendations, and deliberations that are part of a process by which Government decisions and policies are formulated. The purpose of the exemption is to protect open and frank discussion among agency personnel.
The present case involves a circuit split between the Second, Ninth, and D.C. Circuits. In a string of decisions, the Ninth Circuit has held that, to qualify for the deliberative process privilege, an agency must show that a document is both “predecisional” and “deliberative.” A document is predecisional if it is drafted by a staff member to advise a decision maker. A document is deliberative if reflects the opinion of the individual staff member, not the decision maker.
In contrast, the D.C. Circuit has held that draft documents for agency decisions that “died on the vine” are protected by Exception 5. The decision, written by then-Judge Kavanaugh, held that “a draft is still a draft and thus still predecisional and deliberative.” Under this rule, documents that are not formally finalized yet reflect an agency decision maker’s position on an issue may nevertheless be exempt from disclosure.
Sierra Club pursued disclosure of the documents at issue in this case in a FOIA case in the Ninth Circuit and in discovery during separate litigation over the final EPA rule in the Second Circuit. The two courts of appeals came to different decisions: the Ninth Circuit ordered disclosure, while the Second did not. However, this “split” is most easily explained by the different standards at issue due to the different legal postures of the cases: in the Ninth Circuit, the Services had the burden to show that the documents can be withheld, while the Sierra Club had the burden to show that the documents should be disclosed through discovery.
The Sierra Club filed a complaint seeking disclosure of documents related to the EPA rule. The U.S. District Court for the Northern District of California ruled that four documents were protected in their entirety by Exception 5, a fifth document was partially protected, and the rest were ordered to be released. The Services appealed. The Ninth Circuit affirmed in part and reversed in part. Out of the twelve documents ordered to be disclosed by the district court, the Ninth Circuit shielded three documents from disclosure. The Services petitioned for a writ of certiorari to the Supreme Court, which was granted on March 2, 2020.
U.S. District Court for the Northern District of California
The Sierra Club filed a complaint in the U.S. District Court for the Northern District of California on December 21, 2015, requesting documents that were withheld under FOIA’s deliberative process privilege. The parties filed cross motions for summary judgement. In total, sixteen documents remained in dispute and were submitted to the court for in camera review. Ultimately, the court ordered the Services to produce eleven of the documents in their entirety and one document partially. These documents were either “relatively polished drafts” or documents with “no subjective comments, recommendations, or opinions.” Four documents were shielded from disclosure. The protected documents were mostly “preliminary draft[s] with notes, comments, and highlighting that reflect ‘internal discussions.’” The Services appealed the judgement, arguing against the disclosure of the eleven documents.
U.S. Court of Appeals for the Ninth Circuit
On review, the U.S. Court of Appeals for the Ninth Circuit affirmed the disclosure of nine of the documents and reversed the disclosure of three documents. The court relied primarily on Ninth Circuit precedent to make its decision.
The biggest issue the court had to resolve was whether the 2013 biological opinions were predecisional. The Services argued that the opinions were predecisional because they were written before the EPA published its final rule. However, the Supreme Court has held that a biological opinion is a “final agency action.” As a result, even though the EPA’s final rule was ultimately changed, the biological opinions at the time were the “final view of the Services” and subject to disclosure. By contrast, the court permitted the Services to withhold disclosure of the December 2013 reasonable and prudent alternatives because they “appear to be successive drafts of the Services’ recommendations” and “comparing these drafts would shed light on FWS’ internal vetting process.”
Supreme Court of the United States
On October 25, 2019, the Services filed a petition for a writ of certiorari. The Services argued that the Ninth Circuit decision was in direct conflict with decisions from other circuits, including a D.C. Circuit opinion authored by then-Judge Kavanaugh. The Services pointed out that the same documents at issue here were already denied to the Sierra Club in a related Second Circuit case.
On March 2, 2020, the U.S. Supreme Court granted certiorari. The question presented is:
Whether Exemption 5 of the Freedom of Information Act, 5 U.S.C. 552(b)(5) (2012), by incorporating the deliberative process privilege, protects against compelled disclosure 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, 16 U.S.C. 1536, and that concerned a proposed agency action that was later modified in the consultation process.
EPIC has an interest in open government. EPIC frequently files FOIA requests to educate the public and to keep government agencies accountable. EPIC uses FOIA requests to monitor important privacy interests, most recently when states have undertaken contact tracing programs. EPIC also frequently litigates FOIA cases.
EPIC has filed amicus briefs in cases that specifically involved Exemption 5’s deliberative process privilege. For example, EPIC filed an amicus brief in New York Times v. DOJ. In that case, the DOJ withheld legal analysis justifying the Obama Administration’s controversial “targeted killing” drone program. Ultimately, the Second Circuit held that the memo was not part of the deliberative process and did not qualify for Exemption 5 protection.
EPIC has also litigated FOIA cases involving the deliberative process privilege. Documents explaining intermediate decisions are important for public oversight. For instance, in EPIC v. FBI (Privacy Impact Assessments), EPIC obtained privacy threshold analyses despite agency claims that the documents were deliberative and fell under Exemption 5. The threshold analyses showed that FBI officials had not conducted Privacy Impact Assessments despite determining that the systems required them. In EPIC’s experience, agency claims of the deliberative process privilege are often over broad. In EPIC v. DOJ (Criminal Justice Algorithms), for example, EPIC obtained a DOJ report on predictive policing that the agency claimed was deliberative despite the document being a final report to the White House.