United States Fish and Wildlife Serv. v. Sierra Club, Inc.

Background

Federal wildlife agencies (the Fish and Wildlife Service and National Marine Fisheries Service) consulted with the Environmental Protection Agency about a proposed rule on cooling water intake structures. Service staff prepared draft biological opinions in December 2013 concluding the 2013 proposal would likely jeopardize protected species. Agency decisionmakers never approved or sent those drafts to the EPA, continued consultations, and after the EPA revised the rule in March 2014 the Services issued a joint final "no jeopardy" opinion. The Sierra Club sought the withheld draft opinions under the Freedom of Information Act.

Reasoning

The core question was whether internal draft biological opinions must be disclosed. The Court said FOIA’s deliberative-process privilege protects documents that show an agency’s preliminary thinking rather than its final decision. Because the Services' decisionmakers did not approve or circulate the drafts to the EPA, the Court found they were predecisional and deliberative. The mere fact that the drafts influenced the EPA’s later revisions did not make them final for disclosure purposes.

Real world impact

The ruling allows federal agencies to keep many in-house draft analyses private, reducing public access to preliminary scientific or policy work. Environmental groups seeking draft opinions will face a higher bar. The case is sent back to lower courts to determine whether any nonexempt portions must be released and to sort segregable material.

Dissents or concurrances

Justice Breyer, joined by Justice Sotomayor, dissented, arguing some drafts functionally amounted to final agency decisions and should be disclosed; he would have the lower courts resolve that factual question.