Federal agencies aren’t required to hand over draft documents related to the impacts of an EPA proposal on endangered species, the U.S. Supreme Court ruled Thursday.
A lower court misinterpreted the Freedom of Information Act when it mandated the disclosure of draft opinions that should have been protected by the law’s exemption for records from an agency’s “deliberative process,” the justices said in a 7-2 opinion by Justice Amy Coney Barrett.
The decision rejects arguments from the Sierra Club and its allies—a broad coalition of environmental, business, and media interests—who argued that a ruling for the government would allow agencies to skirt disclosure requirements by stamping “draft” on internal records that would otherwise be subject to FOIA.
Several justices appeared sympathetic to that concern during oral arguments in October but skeptical of the Sierra Club’s contention that FOIA requires disclosure of all draft documents that have “appreciable legal consequences.”
The decision clarifies the scope of the deliberative privilege under FOIA by making it clear that internal drafts are exempt from disclosure, said Timothy Bishop, a partner at Mayer Brown LLP in Chicago.
Some litigants will want to show that internal deliberations were messy and contentious and that a final federal rule did not reflect the views important to some stakeholders, but the court “thought that requiring disclosure would deter free debate within the agency and make for less effective rulemaking,” Bishop said.
The ruling may mean that the public will know less about how agencies arrive at decisions, said Andrew Rosenberg, director of the Center for Science and Democracy at the Union of Concerned Scientists.
“I think that the implications are that the public will have less information and ability to be involved in the process of consultation between agencies,” Rosenberg said. “Agencies will be doing much more behind closed doors.”
Elena Saxonhouse, senior attorney for the Sierra Club, said she believes the court misread some of the facts in the case, but the court didn’t hold that documents may be wholly withheld.
“The agencies will need to release any factual, non-deliberative information within them,” Saxonhouse said.
She also said she’s encouraged that the court affirmed that courts must inquire about the context of a draft document before allowing an agency to withhold it.
“The court agreed with Sierra Club on the key principle of the case, which is that agencies cannot simply declare documents ‘drafts’ in order to avoid public release. As the Trump administration showed, such loopholes are prone to abuse,” Saxonhouse said.
The dispute that eventually made it to the Supreme Court started years ago, with a 2011 proposed regulation for cooling water intake structures at power plants. Federal wildlife agencies drafted opinions that said the Environmental Protection Agency’s proposal was likely to harm threatened and endangered species.
The EPA revised its proposal and got a green light from the wildlife agencies. The Sierra Club sought records from that decision-making process under FOIA, and the agencies withheld the drafts, citing FOIA Exemption 5, which covers deliberative process.
The U.S. Court of Appeals for the Ninth Circuit in 2018 ordered the government to turn over the records, and the Supreme Court agreed to review the case this year.
The court’s decision was widely expected, said Robert Percival, director of the environmental law program at the University of Maryland.
“While it may make it more difficult for the public to see biological opinions in the future, Justice Breyer’s dissent tries hard to contain the damage,” Percival said.
Open Government Setback?
Daniel Rohlf, a law professor at Lewis and Clark Law School, said the ruling represents a setback to open government.
“Public disclosure of government documents and judicial review of federal agency’s decisions help ensure that the government follows the law; this ruling puts up an unnecessary roadblock to both,” he said.
Percival said it’s notable that Justice Elena Kagan joined Barrett’s majority opinion.
“Both have reputations for having open minds and it is possible that we may see them voting together in some future decisions,” Percival said.
The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.
The case is U.S. Fish and Wildlife Serv. v. Sierra Club, U.S., No. 19-547.