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Supreme Court Hears Arguments on Exemption 5 of the FOIA

Yesterday the Supreme Court heard arguments in U.S. Fish & Wildlife Service v. Sierra Club.  The question before the court was whether the deliberative process privilege under FOIA Exemption 5 protects draft documents that were prepared as part of a formal interagency consultation process under Section 7 of the Endangered Species Act of 1973, and that concerned a proposed agency action that was later modified in the consultation process.  A recording of the oral arguments can be found here.  

As with all significant FOIA developments, OIP will issue guidance and provide training on the impact of the case as needed.  Please be sure to continue following us on FOIA Post for announcements on when guidance is issued and training opportunities are offered.  In the meantime, agencies are always welcome to seek advice through OIP’s FOIA Counselor Service.

Updated November 3, 2020