The Deliberative Process Privilege and the Freedom of Information Act: U.S. Fish and Wildlife Service v. Sierra Club (2021)

Abstract

The dispute in U.S. Fish and Wildlife Service v. Sierra Club, [592U. S. ____ (2021)] centers on the release of government records related to an Environmental Protection Agency (EPA) rule governing cooling water intake systems. In 2014, the Sierra Club requested records from the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (Services) under the Freedom of Information Act (FOIA). The Services released some documents but withheld other requested records. The Sierra Club subsequently filed suit in the District Court of Northern California and the dispute narrowed to the release of 16 documents related to draft biological opinions developed by the Services. The key question in this case is whether the remaining records held by the Services are protected from disclosure by the deliberative process privilege under Exemption 5 of the Freedom of Information Act. The District Court initially ruled that some documents were exempt from release under the deliberative privilege, but the 2013 draft biological opinions and related documents should be released in full to the Sierra Club. On appeal, the Ninth Circuit affirmed the District Court’s decision in part, but also reversed in part and remanded the case, ruling that some of documents the District Court ordered released were in fact protected under the deliberative process privilege. However, the Ninth Circuit upheld the release of the 2013 draft biological opinions and related documents to the Sierra Club. In a 7-2 decision, the Supreme Court reversed and remanded the decision of the Ninth Circuit and ruled that the deliberative process privilege protected the 2013 draft biological opinion records from disclosure. Justice Amy Coney Barrett wrote the majority opinion, with Justice Breyer authoring a dissenting opinion joined by Justice Sotomayor.