U.S. Fish and Wildlife Service v. Sierra Club

Amicus brief filed by the Reporters Committee for Freedom of the Press and 28 media organizations

Court: U.S. Supreme Court

Date Filed: Aug. 3, 2020

Update: In a 7-2 ruling issued on March 4, 2021, the U.S. Supreme Court reversed the decision of the U.S. Court of Appeals for the Ninth Circuit. The Court held that “The deliberative process privilege protects the draft biological opinions from disclosure because they are both predecisional and deliberative.” Justice Stephen Breyer, joined by Justice Sonia Sotomayor, dissented. The Court remanded the case to the district court for further proceedings.

Background: In 2013, the U.S. Environmental Protection Agency began formally consulting with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service to determine whether to change its regulations for power plants’ cooling water intake structures, which can crush or boil aquatic creatures. The Services wrote conclusive determinations about the adverse impact the EPA’s proposed changes would have on threatened and endangered species. As a result of those conclusions, the EPA modified its proposed action.

In 2014, the Sierra Club filed a Freedom of Information Act request seeking the Services’ records containing their conclusions as to the then-current action proposed by the EPA. The Services refused, citing FOIA Exemption 5, specifically, the “deliberative” process privilege, which protects certain “advisory opinions, recommendations and deliberations” before they are adopted.

The Sierra Club filed suit, and the district court held that certain documents could not be withheld under Exemption 5. On appeal, the U.S. Court of Appeals for the Ninth Circuit held that even though the requested records were denominated “draft,” they were not predecisional or deliberative and could not be withheld under Exemption 5.

The Services then appealed to the U.S. Supreme Court, which agreed to hear the case.

Our Position: The Supreme Court should affirm the Ninth Circuit’s judgment.

• Overuse and abuse of the deliberative process privilege is undermining the purpose of FOIA.
• Agencies’ overuse of the deliberative process privilege has harmed the public’s right to know, an issue Congress has recognized and sought to prevent.
• The Services’ interpretation of what constitutes “predecisional” material, if adopted by the Court, would invite further abuse of Exemption 5.

Quote: “Excessive invocation of the deliberative process privilege by agencies obstructs the ability of journalists and the public to gather important information about the conduct of government.”

Related: Earlier this year, the Reporters Committee published a two-part series examining FOIA’s deliberative process privilege. Part I explained the history of the privilege and how it’s been abused by government agencies over the years. In Part II, Reporters Committee Legal Fellow Gunita Singh answered questions about the deliberative process privilege and offered some helpful tips on how to avoid having records denied under the privilege.