United States Fish and Wildlife Serv. v. Sierra Club, Inc.
Headline: Court protects in-house draft wildlife opinions from FOIA, allowing agencies to keep draft views secret even when they became the agencies’ last written position and limiting public access to those drafts.
Holding: The deliberative process privilege protects predecisional, deliberative in-house draft biological opinions from FOIA disclosure, even if those drafts later proved to be the agencies’ last written views about a prior proposal.
- Makes agencies able to withhold in-house draft opinions under FOIA.
- Preserves candid internal government deliberations during rulemaking.
- Leaves final opinions and segregable nonexempt material available to public.
Summary
Background
In 2011 the EPA proposed rules for "cooling water intake structures" that can trap aquatic wildlife. The Endangered Species Act required the EPA to consult with the Fish and Wildlife Service and the National Marine Fisheries Service, which prepare "biological opinions" saying whether a proposal would jeopardize protected species. Services’ staff drafted "jeopardy" opinions in late 2013 concluding the EPA’s 2013 proposal likely harmed species, but agency decisionmakers did not approve or send those drafts. The agencies and EPA continued talks, and after EPA revised the proposal in March 2014 the Services issued a joint final "no jeopardy" opinion and the EPA issued its final rule.
Reasoning
The Court addressed whether FOIA’s exemption for internal deliberations shields draft biological opinions. It explained that the deliberative privilege covers documents that are predecisional and meant to inform internal debate. The Court held the disputed drafts were protected because decisionmakers had not adopted or sent them and therefore did not treat them as the Services’ final views. The Court rejected an effects-based rule that would treat any document that influenced the agency as final.
Real world impact
The decision allows agencies to withhold in-house drafts created to help shape policy, even when those drafts influenced later changes. Requesters may still obtain final agency opinions and any nonexempt parts of drafts. The case was sent back for the lower courts to sort which parts, if any, must be disclosed.
Dissents or concurrances
Justice Breyer, joined by Justice Sotomayor, dissented and argued many draft biological opinions function as final views and should often be disclosed. He would have remanded for factfinding about how final the specific drafts were.
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