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New Guidance on Exemption 5 of the FOIA and the Deliberative Process Privilege

Today, the Office of Information Policy (OIP) issued guidance addressing the Supreme Court decision in United States Fish & Wildlife Service v. Sierra Club, Inc., 141 S. Ct. 777 (2021).  While the Court's decision did not introduce new factors or considerations that would govern the application of Exemption 5, as the guidance highlights, it did underscore some important principles that agencies should consider in their application of the deliberative process privilege.

OIP’s guidance contains a brief discussion of the decision in United States Fish & Wildlife Service v. Sierra Club and highlights two key principles from the opinion when applying the deliberative process privilege.  Agencies may contact OIP’s FOIA Counselor Service with any questions regarding this guidance article or any other FOIA matter.  The Exemption 5 guidance can be found on OIP’s website where previously released policy guidance articles are also available.

Updated September 29, 2021