On March 4, 2021, the US Supreme Court held that draft biological opinions prepared by the US Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) were subject to the deliberative process privilege and therefore exempt from disclosure under the Freedom of Information Act (FOIA).1 While FOIA generally mandates the disclosure of documents held by federal agencies, predecisional documents generated during an agency’s deliberations are generally exempt from disclosure. In a 7–2 decision—the first majority ruling authored by Justice Amy Coney Barrett—the Supreme Court reasoned that the biological opinions at issue fell under this exemption and were protected “from disclosure because they [were] both predecisional and deliberative.”
The overall scope and impact of the Supreme Court’s decision remains to be seen, but the high court’s recognition that the government can withhold draft documents as deliberative could have a significant impact across every sector and agency. While the Court was very clear that government agencies could not simply stamp documents as “drafts” in order to avoid FOIA disclosure, the decision may—at the very least—make it more difficult for interested entities to obtain such draft documents in the future. For companies interested in understanding the government’s deliberations leading to a decision on a proposed project or permit, this decision may constrain the ability to obtain the full universe of relevant documents.
The dispute began with a US Environmental Protection Agency (EPA) proposed rule on the design and operation of cooling water intake structures for industrial equipment. These structures can adversely affect aquatic species because as they withdraw water, they can trap and kill fish and other organisms. Due to the potential impact to threatened and endangered species, as part of the rulemaking process, EPA was required to consult with FWS and NMFS (collectively, the Services) under the Endangered Species Act (ESA).2 This consultation process culminates in a biological opinion issued by the Services addressing whether the proposal will jeopardize threatened or endangered species.
In 2013, following consultation with EPA, the Services each prepared draft biological opinions concluding that the proposed rule was likely to jeopardize certain species. However, the Services did not send those drafts to EPA and instead agreed to extend the consultation period. Following this additional consultation, EPA sent the Services a new version of the proposed rule that differed significantly from the 2013 version. The Services then issued a joint final biological opinion finding no jeopardy, and EPA issued its final rule that same day.
Subsequently, the Sierra Club submitted FOIA requests for records of the Services’ consultation with EPA. The agencies, in turn, invoked the deliberative process privilege for the draft biological opinions, arguing that these documents were protected because they were not final. Sierra Club sued, alleging that the deliberative process privilege did not shield the draft biological opinions. The District Court for the Northern District of California agreed and ordered the agencies to disclose the documents. The United States appealed, but the US Court of Appeals for the Ninth Circuit affirmed, finding, as relevant here, that the drafts were not privileged because even though they were labeled as drafts, they represented the final opinion on EPA’s proposed rule in 2013.3 The United States then sought certiorari review, which the Supreme Court granted.
The question presented before the court was whether the deliberative process privilege protected in-house draft biological opinions that were prepared as part of a formal consultation process under Section 7 of the ESA to address potential impacts of a proposed agency action that was subsequently modified in the consultation process. In a 7–2 decision, the Court held that it did, concluding that the federal government did not need to disclose the draft opinions because “they [were] both predecisional and deliberative.”
The Court began its analysis by discussing the deliberative process privilege and the policy behind it, detailing that the privilege “distinguishes between predecisional, deliberative documents, which are exempt from disclosure, and documents reflecting a final agency decision and the reasons supporting it, which are not.” Documents are “‘predecisional’ if they were generated before the agency’s final decision on the matter, and they are ‘deliberative’ if they were prepared to help the agency formulate its position.” The key inquiry, therefore, is whether “the agency treats the document as its final view on the matter.” The privilege protects agencies from “being forced to operate in a fishbowl” by shielding some preliminary documents from disclosure. It “encourage[s] candor, which improves agency decisionmaking,” and “blunt[s] the chilling effect that accompanies the prospect of disclosure.”
Here, the Court held that the privilege protected the draft biological opinions because “they reflect[ed] a preliminary view—not a final decision—about the likely effect of the EPA’s proposed rule.” The Court considered several factors to reach this conclusion. To begin, the fact that the Services labeled the document as a “draft” supported this conclusion, but the Court emphasized that merely labeling a document as a “draft” is not determinative. Instead, courts must evaluate the documents in the context of the administrative process and look at the function that the documents serve. The administrative context here confirmed that the drafts reflected preliminary opinions. For example, ESA regulations distinguish between draft and final biological opinions, and the Services may not issue a final opinion while the draft is under review by the action agency.4 This provision, according to the majority, “specifically contemplates further review by the agency after receipt of the draft, and with it, the possibility of changes to the biological opinion after the Services send the agency the draft.”
Notably, the majority rejected the Sierra Club’s proposed “effects-based” argument, which asserted that the drafts must be treated as final because they had an operative effect on EPA’s rule. The Court emphasized that the question is “not whether the drafts provoked a response from the EPA, but whether the Services treated them as final.” And here, according to the majority, the Services did not treat the biological opinions as final because they were prepared by lower-level staff and sent to the decision makers for approval, but they were neither approved nor sent to EPA. In the Court’s words, “[t]hese documents, then, are best described not as draft biological opinions but as drafts of draft biological opinions.” These “drafts of draft biological opinions” spurred continued consultation and informed the formulation of EPA’s final rule—they were, thus, part of a deliberative process.
Finally, the majority was careful to note that agencies could not stamp a document “draft” to protect it from disclosure because the key inquiry examines the overall context and function of the document to determine whether the document is a final decision, even if it is disguised in draft form.
Justice Stephen Breyer, joined by Justice Sonia Sotomayor, dissented. While the dissent agreed with the majority that “whether a document is ‘final’ or ‘deliberative’ primarily depends upon its ‘function’ within an agency’s decision-making process,” Justice Breyer focused on the distinction between a draft biological opinion and a draft of a draft biological opinion. The dissent agreed that the latter would be protected from disclosure, but concluded that the former—a draft biological opinion—would not be. Justice Breyer concluded that a draft biological opinion serves largely the same function as a final biological opinion and the mere possibility of a future change does not alter a draft biological opinion’s final effect. In sum, Justice Breyer’s dissent appears to be an effort to limit the reach of the “drafts of a draft” language used by the majority.
Implications and Takeaways
While the overall impact of this decision remains to be seen, the Supreme Court’s recognition that government agencies can withhold drafts as deliberative is significant and will have an impact on every sector and agency. At the very least, this decision gives federal agencies a stronger argument for protecting documents from disclosure in response to FOIA requests. More broadly, the decision could reduce transparency in government actions if agencies interpret this ruling as implicit permission to do more behind closed doors. The majority, in a footnote, explains that its reasoning is not just limited to draft biological opinions and applies to other draft documents as well.5
Along similar lines, it is likely that this decision will impact disclosure practices across all federal agencies in a range of procedural contexts. While this decision applies to a FOIA exemption, the deliberative process privilege is available to agencies in civil litigation as well. For example, when an agency’s decision is challenged in court under the Administrative Procedure Act, the review is based on the nondeliberative documents that the decision maker considered in making the final decision. These documents are compiled in the administrative record. Agencies may rely on the deliberative process privilege to keep predecisional, deliberative documents out of the administrative record—thus, this decision could result in less inclusive records, thereby making judicial challenges to agency actions more difficult.
Some elements of the decision, however, suggest a less expansive impact. Justice Barrett’s decision emphasizes that merely stamping something as “draft” will not allow an agency to withhold it. Courts will still consider the function of the document in the agency’s decision-making process before applying the privilege. Additionally, the distinction between a draft opinion versus a draft of a draft opinion is significant and can be interpreted as merely clarifying application of the privilege to more tentative drafts.
Finally, while reduced transparency does have negative implications, candid agency discussions also have important benefits. In the ESA context, for example, this decision could lead to more open discussions between action agencies and the Services to avoid jeopardy and mitigate project impacts. As Justice Barrett noted, the consultation process between the Services and EPA here worked—EPA revised its rule to reduce potential impacts to aquatic species as a result of the Services’ initial analysis. Stakeholders could benefit from an increasingly candid deliberative process.
In sum, while this decision clarifies the scope of the deliberative process privilege, its reach remains to be seen. At the very least, it likely increases the government’s ability to withhold documents identified as drafts, but those drafts are still subject to a fact-based analysis focused on the ultimate function of the document.