Freedom of Information: Secret Law versus Finality

Abstract The recent Supreme Court decision in Fish and Wildlife Service v. Sierra Club presents a conflict between the public’s right to know federal agency policies and a federal agency’s interest in protecting its deliberative materials from public review. The Sierra Club claimed that the Fish and Wildlife Service was violating the Freedom of Information Act by refusing to provide biological opinions – a required analysis of the potential impact of regulations on endangered species – by marking them draft and never producing a final opinion that would be publicly available. This article analyzes the decision and explains why the agency controls the decision as to what is publicly available. It is not that the agency interest in privacy is more important than the public’s right to know; the rule is that as long as the agency is deliberating, there is not final policy to make public.