Supreme Court Limits Public Access to Government Documents

March 9, 2021

Last week, the Supreme Court held in U.S. Fish & Wildlife Service v. Sierra Club that documents reflecting an agency's last view on a proposed rule are deliberative and exempt from disclosure under FOIA unless the agency treats the documents as final. In her first majority opinion since joining the bench, Justice Barrett interpreted the deliberative process privilege broadly, writing that, although the documents in this case represented "the last word within the [agency]," the documents "were not last because they were final; they were last because they died on the vine." Because the agency never formally finalized the documents or transmitted them in full to the agency that proposed the rule, the documents could be withheld. In its amicus brief, EPIC had urged the Court to narrowly interpret the deliberative process privilege. EPIC warned that a broad interpretation would encourage agencies to "continue to interpret the [privilege] broadly and cause years of delay and unnecessary litigation." EPIC regularly litigates FOIA cases and files amicus briefs on open government issues.

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