On March 4, 2021, the Supreme Court issued its decision in United States Fish & Wildlife Service v. Sierra Club, Inc., 141 S. Ct. 777 (2021), in which it addressed the contours of FOIA's Exemption 5 for the first time in two decades. While the Court's decision did not introduce new factors or considerations that would govern the application of Exemption 5, it did underscore some important principles that agencies should consider in their application of the deliberative process privilege.
The Supreme Court's Decision
In a 7-2 decision, the Supreme Court held that draft biological opinions, created by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service ("the Services") to address whether a proposed Environmental Protection Agency ("EPA") action would jeopardize the existence of threatened or endangered species, could be withheld pursuant to the deliberative process privilege in conjunction with Exemption 5. See U.S. Fish & Wildlife Serv. v. Sierra Club, Inc., 141 S. Ct. 777 (2021). Specifically, the Court held that "[t]he deliberative process privilege protects from disclosure under FOIA in-house draft biological opinions that are both predecisional and deliberative, even if the drafts reflect the agencies' last views about a proposal." Id. at 782. The Court's decision hinged on the details of a very specific environmental review process, so a brief review of this process and the history of the case is helpful in understanding the ultimate outcome.
As described in the Court's decision, the records at issue in this case pertained to a rule proposed by EPA concerning "cooling water intake structures" that are used to cool industrial equipment. Id. at 783. Because aquatic wildlife can become trapped in these structures and die, the Endangered Species Act of 1973 required EPA to consult with the Services before proceeding with the proposed rule. Id. at 783-84. After consulting with the Services regarding its proposed rule, EPA revised its rule in November 2013, and the Services created draft biological opinions concluding that the revised rule would cause jeopardy to the aquatic wildlife. Id. at 784. Notably, agency decisionmakers at the Services did not approve the draft biological opinions, nor did they share the drafts with EPA, but rather concluded that "more work needed to be done." Id. EPA continued to consult with the Services, and EPA then further revised its proposed rule in 2014, after which the Services issued a joint final "no jeopardy" biological opinion. Id. EPA then finalized the 2014 version of the rule. Id.
Sierra Club made FOIA requests for records concerning the Services' consultation with EPA. Id. at 784-85. The Services produced thousands of records in response to these requests, but withheld a number of records, including the draft biological opinions concerning the 2013 proposed rule, pursuant to Exemption 5's deliberative process privilege. Id. at 785. Sierra Club challenged these withholdings and the District Court for the Northern District of California held that the draft biological opinions, among other records, did not qualify for protection under Exemption 5. The Court of Appeals for the Ninth Circuit affirmed in part and held that these draft biological opinions could not be withheld under the FOIA because they "represent[ed] the final view of the Services regarding the then-current November 2013 proposed rule." Sierra Club, Inc. v. United States Fish & Wildlife Service, 925 F.3d 1000, 1013 (9th Cir. 2019). The Supreme Court granted certiorari and later reversed the Ninth Circuit, finding that the draft biological opinions were predecisional and deliberative and were therefore protected by the deliberative process privilege. See U.S. Fish & Wildlife Serv. v. Sierra Club, Inc., 141 S. Ct. 777, 785-89 (2021).
In making its decision, the Court emphasized important principles that are helpful to agencies as they apply the deliberative process privilege to determine whether records should be withheld pursuant to Exemption 5. First, while final agency decisions cannot be protected under the deliberative process privilege, a record is not "final" for purposes of this privilege simply "because nothing else follows it." Id. at 786. Sometimes a proposal "dies on the vine," and the last document does not "reflect[ ] the agency's chosen course." Id. As the Court noted, "[w]hat matters . . . is not whether a document is last in line, but whether it communicates a policy on which the agency has settled." Id. In other words, "whether the agency treats the document as its final view on the matter." Id. Second, to determine whether an agency has settled on a particular policy for purposes of the deliberative process privilege, agencies should consider the "real operative effect" of the record by looking at its legal consequences rather than its practical consequences. Id. at 787-88. The Court noted that it had previously held in NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 160 (1975), that identifying a decision's "real operative effect" can serve as an indication of the document's finality. Sierra Club, 141 S. Ct. at 787. Sierra Club argued that the documents at issue reflected the Services' final views because they in fact caused EPA to change course in drafting the proposed rule. Id. But the Court rejected that argument and clarified that a record is not final simply because it causes an agency to change course. Id. Instead, a record is final only when it is treated by the agency as a final decision with legal effect. Id. The fact that a record is labeled as a "draft" is a relevant fact suggesting that the document is "subject to change"—although a draft label is not "determinative." Id. at 786.
Applying these principles to the draft biological opinions at issue, the Court noted that the biological opinions were labeled as "drafts," and it found that "the administrative context" confirmed that the documents were predecisional and deliberative because they were agency proposals that were subject to change. Id. Indeed, the applicable regulatory procedures specifically contemplated potential changes to a draft biological opinion even after it had been shared with the rulemaking agency, and in this case the drafts had not yet even reached the stage of being shared with EPA, much less become final biological opinions. Id. at 786-88. Accordingly, the Court described the biological opinions at issue as "drafts of draft biological opinions." Id. at 788. The Court observed that while the drafts ended up being the last word on the 2013 version of the proposed rule, "[t]he recommendations were not last because they were final; they were last because they died on the vine." Id. The Court pointed out that, because "[f]urther consultation with the Services prompted the EPA to alter key features of its 2013 proposal[,] . . . there was never a need for the Services to render a definitive judgment about [the 2013 version of the rule]." Id.
In a dissenting opinion joined by Justice Sotomayor, Justice Breyer agreed with many of the basic legal principles set forth in the majority opinion, including that a "draft of a draft" biological opinion would generally be exempt from disclosure. Id. at 789-91. However, the dissent disagreed with the majority that the evidence before the Court sufficiently demonstrated that the records at issue were exempt "drafts of drafts" rather than draft biological opinions, which the dissenting justices would have considered presumptively nonexempt. Id. at 789. In the dissent's view, draft biological opinions generally could not be withheld under Exemption 5 because they represent the Services' "final" decision regarding a given proposed EPA action. Id. When a draft biological opinion makes a jeopardy finding, EPA is left with only four options to proceed, so there is very little difference between a draft and a final biological opinion in terms of the legal consequences for the EPA. Id. at 790-91. The dissent would have remanded the case back to the Court of Appeals for further development of the factual question of whether the draft biological opinions were considered functionally final or were merely "drafts of drafts." Id. at 792.
While the Supreme Court's decision did not modify existing standards for applying the deliberative process privilege, it did reemphasize and clarify important principles that agencies should consider when applying the deliberative process privilege under Exemption 5:
- A record is not "final" for purposes of the deliberative process privilege simply because it is the last version and nothing else follows it. The key consideration is whether the document communicates a policy or position on which the agency has settled (i.e., a policy or position that has been approved by the relevant decisionmakers at the agency).
- When determining whether an agency has settled on a particular policy or position for purposes of the deliberative process privilege, the agency should consider the "real operative effect" of the record by looking at the record's legal consequences rather than its practical consequences. A record is final not because it causes an agency to change course, but because it is treated by the agency as a final decision with legal effect.
Agency personnel with any questions regarding this guidance or applying the deliberative process privilege are encouraged to contact OIP.