US Supreme Court limits scope of Freedom of Information Act

US Supreme Court limits scope of Freedom of Information Act

Justice Amy Barrett explained in her majority opinion for the Supreme Court that while the exception applies to pre-decisional, deliberative documents and not documents reflecting a final agency decision and the reasons supporting it

The US Supreme Court last week ruled by a 7-2 majority to limit the scope of the Freedom of Information Act (FOIA) while expanding the deliberative process privilege exception to the Act's disclosure requirement. This will now include in-house drafts of biological opinions that are both pre-decisional and deliberative, even if the drafts reflect the agencies' last views about a proposal.

In the case, US Fish and Wildlife Service v. Sierra Club, concerns were raised about the process leading to a 2014 Environmental Protection Agency (EPA) rule about the design of the cooling water intake structures.

The structures in question draw water in from nearby sources to cool industrial equipment. Since these structures normally intake aquatic life with the water, the EPA was required to consult with the US Fish and Wildlife Service and the Marine Fisheries Service on the environmental impact the water intake process would have on species protected by the Endangered Species Act.

The Marine Fisheries Services sent the draft biological opinions in response to the EPA's first proposed rule. It summarized that the proposed rule would likely harm the protected species which was followed a year later with the EPA proposing a new rule. The rule went into effect after the Marine Fisheries Services issued a joint final biological opinion.

Sierra Club later requested records of the Services' consultations with the EPA under the Freedom of Information Act that allows the general public to seek details of certain government agency documents.

The law, however, has some exceptions. The Marine Fisheries Services invoked the "deliberate process privilege" exception, which applies to documents "that reflect an agency's preliminary thinking about a problem, as opposed to its final decision."

The exception is meant to "improve candor" in negotiations between agency officials who might not do so otherwise, in fear that anything they say might become "a potential item of discovery and front-page news."

Sierra Club subsequently sued the Marine Fisheries Services, arguing that the exception did not apply to the draft biological opinions, to which the US Court of Appeals for the Ninth Circuit agreed, The Court held that the draft biological opinions must be disclosed because they represented the Marine Fisheries Services' "final opinion" concerning the EPA's proposed rule.

Justice Amy Barrett explained in her majority opinion for the Supreme Court that while the exception applies to "pre-decisional, deliberative documents" and not "documents reflecting a final agency decision and the reasons supporting it".

Justice Barrett argued that a document is not final solely because nothing else follows it. The crucial inquiry is whether the agency treats the document as its final view on the matter, which depends on whether the document has an operative effect.

Sierra Club's contended that the draft biological opinions had an operative effect since it prompted the EPA to revise its proposed rule and that they were the Marine Fisheries Services' final view on the initial proposal.

Justice Barrett felt that an effects-based test was not the right one because many actions might prompt an agency to amend a proposed rule. She said that the draft biological opinions were not the Marine Fisheries Services' final view because "decision-makers at the Services neither approved the drafts nor sent them to the EPA."

Therefore, the opinions only "reflect a preliminary view - not a final decision and were both pre-decisional and deliberative".