United States Fish and Wildlife Serv. v. Sierra Club, Inc.
592 U.S. 261 (2021)
Rule of Law:
The deliberative process privilege protects from disclosure under the Freedom of Information Act (FOIA) in-house draft biological opinions that are both predecisional and deliberative, even if those drafts reflect the agencies’ last internal views about a proposal, provided they were not treated as final by the agency decisionmakers and lacked direct legal consequences.
Facts:
- In April 2011, the Environmental Protection Agency (EPA) proposed a rule regarding "cooling water intake structures" used to cool industrial equipment, which could trap and kill aquatic wildlife.
- The Endangered Species Act of 1973 required the EPA to consult with the U. S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) (together, the Services) before proceeding with the rule.
- In November 2013, the Services received a revised version of the EPA's proposed rule after initial informal consultation.
- In December 2013, staff members at NMFS and FWS completed draft biological opinions concluding that the November 2013 proposed rule was likely to jeopardize certain species.
- Decisionmakers at the Services neither approved these draft opinions nor sent them to the EPA, instead shelving them and agreeing with the EPA to extend the consultation period, believing "more work needed to be done."
- In March 2014, the EPA sent the Services a significantly revised proposed rule that differed from the 2013 version.
- On the same day, the Services issued a joint final "no jeopardy" biological opinion, satisfied that the revised 2014 rule was unlikely to harm any protected species.
Procedural Posture:
- Sierra Club, an environmental organization, submitted Freedom of Information Act (FOIA) requests to the U. S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) (the Services) for records related to their consultations with the EPA, including draft biological opinions.
- The Services invoked the deliberative process privilege under FOIA Exemption 5 to withhold certain draft biological opinions.
- Sierra Club sued the Services in the U.S. District Court for the Northern District of California to compel disclosure of the withheld documents.
- The District Court agreed with Sierra Club, holding that the draft biological opinions were subject to disclosure.
- The Services appealed the District Court’s ruling to the U.S. Court of Appeals for the Ninth Circuit.
- The Ninth Circuit affirmed the District Court's decision in part, concluding that the draft biological opinions were not privileged because they represented the Services’ final opinion regarding the EPA’s 2013 proposed rule.
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Issue:
Does the deliberative process privilege protect in-house draft biological opinions from disclosure under the Freedom of Information Act (FOIA) if those drafts are predecisional and deliberative, even when they represent the agencies' last internal views on a specific version of a proposed rule that was later revised or abandoned?
Opinions:
Majority - Justice Barrett
Yes, the deliberative process privilege protects from disclosure under FOIA in-house draft biological opinions that are both predecisional and deliberative, even if they reflect the agencies’ last internal views about a particular proposed rule, so long as they were not treated as final by agency decisionmakers and lacked direct legal consequences. The Court affirmed that FOIA Exemption 5 incorporates the deliberative process privilege, which shields "advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated" (NLRB v. Sears, Roebuck & Co.). This privilege serves to encourage candid agency decisionmaking by protecting predecisional, deliberative documents, while not extending to documents that reflect a final agency decision and its supporting reasons. The crucial factor for determining finality is whether the agency treats the document as its final view and whether it has "real operative effect," which refers to its direct legal consequences, rather than merely practical influence. The documents in question were labeled "drafts," which by definition suggests a preliminary nature. The regulatory process for biological opinions, which distinguishes between draft and final versions and allows for agency review and potential changes after drafts are circulated, further confirmed their preliminary status. Importantly, the Services' decisionmakers never approved or sent the drafts to the EPA, instead concluding that "more work needed to be done" and extending consultations. Therefore, the documents were best characterized as "drafts of draft biological opinions." The Court rejected Sierra Club’s argument that the drafts had an "operative effect" by prompting the EPA to revise its rule, clarifying that "operative effect" pertains to legal, not practical, consequences. The fact that these drafts were the Services' last internal word on the 2013 EPA proposal did not make them final; they simply "died on the vine" because the EPA ultimately changed its proposal. The Court affirmed that while agencies cannot hide functionally final decisions in draft form, no such charade occurred here.
Dissenting - Justice Breyer
No, Draft Biological Opinions should not normally be protected by the deliberative process privilege under FOIA because they function as final decisions regarding "jeopardy" and alternatives, carrying significant effects. Justice Breyer distinguished between "Final Biological Opinions," "Draft Biological Opinions," and "Drafts of Draft Biological Opinions," agreeing that the latter are generally privileged, while the former are not. He argued that "Draft Biological Opinions" should not normally fall within Exemption 5's protection because their function within the administrative process makes them effectively final. First, they are final regarding their content, explaining the Services’ findings and proposing "reasonable and prudent" modifications or alternatives. Second, they serve the same function as final opinions by giving the EPA (the action agency) essentially four options: drop the action, accept modifications, proceed and face penalties, or seek an exemption. Third, agency practice shows that Draft Biological Opinions are the documents that inform the EPA of jeopardy conclusions, triggering the EPA's decision-making process, as evidenced by the rarity of final jeopardy opinions being issued. Fourth, permitting disclosure of Draft Biological Opinions is unlikely to chill frank discussion, given that agency staff are aware these drafts may be made public, especially when a private party is involved, creating an anomalous disclosure standard. Fifth, legal consequences flow from their completion, as regulations require them to be made available to the action agency and restrict the issuance of a final opinion while the draft is under review. Given these factors, Justice Breyer concluded that a Draft Biological Opinion would not normally enjoy a deliberative privilege. He suggested remanding the case for the Court of Appeals to determine whether the specific documents at issue were true "Draft Biological Opinions" or merely "Drafts of Draft Biological Opinions" based on how much work was left to be done.
Analysis:
This case significantly clarifies the scope of the deliberative process privilege under FOIA Exemption 5, particularly by distinguishing between legal and practical operative effects for determining a document's finality. By affirming robust protection for internal, predecisional drafts that lack direct legal consequences, even if they represent the last internal thinking on a specific proposal, the Court encourages candid deliberation within agencies. However, this ruling also places a greater burden on FOIA requesters to demonstrate that a seemingly preliminary document is, in fact, a functionally final agency decision. Future litigation will likely focus on delineating the precise line where an unapproved or uncirculated draft might still be considered "functionally final" due to its nature or the agency's treatment of it, despite the lack of direct legal consequence or formal approval.
