On Monday, November 2, the U.S. Supreme Court heard oral arguments in U.S. Fish and Wildlife Service, et al. v. Sierra Club, Inc., No. 19-547. The case concerns an exception to the general rule under the Federal Information Act (“FOIA”) that the public has a right of access government documents. But the case also raises a larger policy question flagged in a famous letter written by James Madison late in his life:

“A popular Government, without popular information, or the means of acquiring it, is but a prologue to a Farce or a Tragedy; or perhaps both. Knowlege will forever govern ignorance: and a people who mean to be their own Governours, must arm themselves with the power which knowledge gives.” - From James Madison to William T. Barry, 4 August 1822.

Madison’s famous missive raises the question about the extent to which keeping citizens in the dark about aspects of official decision-making is conductive to good government and the protection of liberty. The deliberative process privilege allows the government in civil litigation to withhold documents that are pre-decision and deliberative—that is, documents that ante-date a final government ruling and which assisted the government decision-maker in reaching a final decision.

The main rationale for this privilege rests, as the Supreme Court put it, on the “obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front-page news.” Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8-9, (2001). The privilege’s origins lie party in the so-called English crown privilege, which exempted from disclosure things like names of informants in military reports. But although the American term “deliberative process privilege” is of recent vintage, the principle that some executive documents should be shielded from disclosure was employed early on in our nation’s history. For example, President Washington exerted privilege in response to congressional investigations about the St. Clair military expedition and the Jay Treaty.

During the nineteenth century most of the debates about the privilege’s application didn’t reach far below the president and his cabinet. In fact, it wasn’t until the mid-twentieth century that the federal judiciary made the privilege available to the Executive Branch generally. The seminal decision is not a Supreme Court decision, but a 1958 ruling of the Court of Claims in a case called Kaiser Aluminum and Chemical Corporation v. United States.

This was an action for breach of a most favored purchaser contract. During discovery, the plaintiff, Kaiser, sought a memorandum written by a subordinate staffer of the General Service Administration giving advice to the GSA’s liquidator of water assets concerning government policy on the sale of aluminum plants. In holding against disclosure of the memo, the Court, per then-retired Justice Stanley Reed, ruled that all such executive documents reflecting advice on policy, “of the kind that every head of an agency or department must rely upon for aid in determining a course of action or as a summary of an assistant’s research” are presumptively privileged from disclosure. Kaiser Aluminum, 157 F. Supp. 939, 945 (1958).

Relying in part on English precedent, Justice Reed defended the application of the privilege on the ground that, “free and open comments on the advantages and disadvantages of the proposed course of government management would be adversely effected if a civil servant or executive assistant were compelled by publicity to bear the blame for errors or bad judgment properly chargeable to the responsible individual with power to decide to act.” Kaiser Aluminum, 157 F. Supp. 945-46.

Unlike Kaiser Aluminum, the dispute in Sierra Club does not arise from a discovery demand in civil litigation, but rather from an action to enforce FOIA. Enacted as part of the Administrative Procedures Act in 1946, FOIA was overhauled in 1966 because Congress was concerned that the original version of the statute made it too easy for government officials to avoid having to disclose documents.

Still, Congress codified nine exemptions from the general rule of disclosure. Exemption 5, which is at issue in Sierra Club, authorizes the withholding of interagency or intra-agency memoranda or letters which would not be available by law to a party in litigation with the Agency. The Supreme Court has interpreted this exemption to incorporate a number of common law privileges, including the deliberative process privilege.

But back to the case. Sierra Club arises out of a proposed 2011 EPA regulation under the Clean Water Act, which concerned water intakes used for cooling industrial facilities. Because the rulemaking involved the extraction of water from lakes or rivers or streams, which can harm aquatic organisms, including endangered ones, the EPA consulted with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service under Section 7 of the Endangered Species Act (“ESA”). By late December 2013, the Services had prepared near-final biological opinions, concluding that EPA’s proposal would jeopardize protected species. At the last minute, however, the Services’ decision-makers concluded that revisions had to be made before sending those biological opinions over to EPA.

Soon afterwards, EPA decided to amend its original proposal, based in part on excerpts of the draft opinion that the Services had already supplied it with. The draft opinions were then set aside, and new biological opinions were written to address EPA’s revised regulation. Both the revised opinions, which no reached a “no jeopardy” conclusion in contrast to the earlier versions, as well as the revised regulation, were formally adopted by the agencies in May 2014. Sierra Club and others then promptly petitioned for review of the EPA rule.

The Second Circuit upheld the rule while simultaneously rejecting the challengers’ attempt to obtain the draft biological opinion as part of that litigation, citing the deliberative process privilege. At the same time as this merits litigation was proceeding, Sierra Club submitted a FOIA request for these draft biological opinions and related documents. When the agencies declined to disclose them, Sierra Club and others filed petitions for review challenging both the EPA rule and the Service’s no-jeopardy biological opinion. See Sierra Club, Inc. v. U.S. Fish & Wildlife Service, 925 F.3d 1000, 1009 (9th Cir. 2019).

The district court ruled in Sierra Club’s favor, and on appeal, a divided panel of the Ninth Circuit affirmed in part, ruling two-to-one that the Services had to disclose the draft biological opinion and several other documents. The panel majority reasoned that although they were never formally issued, the original draft biological opinions were nevertheless the agency’s final word on EPA’s initial proposed rule and, thus, were not pre-decisional or deliberative as applied to that initial proposal. As the majority explained, the documents “do not contain line edits, marginal comments, or other written material that expose any Agency discussion about the jeopardy finding, nor do they contain any insertions or writings reflecting input from lower level employees” but had been sent to decision-makers; and that the FWS draft opinion had a cover letter on agency letterhead. Sierra Club, Inc. 925 F.3d at 1017.

The government then successfully convinced the Supreme Court to grant certiorari. The parties’ briefing reveals that the dispute largely turns on the legal status, as well as the practical effects, of these biological opinions. Sierra Club contends that the opinions clearly represented the Services’ last word on the then-current EPA proposal’s effect on protected species and their habitat and that the opinion certainly had appreciable practical effects on EPA, given EPA’s subsequent decision to amend its proposed regulation once it got wind of where the Services were headed with their biological opinions.

The government counters that the draft opinions were never signed or formally approved by the Services decision-makers. They were never sent to EPA, and they were never made public. Moreover, because they were never finalized, no legal significance ever attached to them. Hence, in the government’s view, the documents remained pre-decisional and deliberative.

During argument the Court showed sympathy with the government, but also concern with the breadth of the rule that the government offered to justify a win. As Justice Kavanaugh prefaced one of his questions, the Court doesn’t want to create a FOIA loophole that would allow government officials to stamp “draft” on all documents and ipso facto make them exempt from disclosure. The questions from the bench also showed concern about how the government’s broad rule of what’s considered exempt from disclosure would apply to the ESA in particular. Although thousands of consultations have taken place under the ESA, only a handful have ever resulted in a “formal jeopardy opinion.” Instead, what typically happens is that, as in this case, the Services will produce a “draft biological opinion.” The Services then share that with the action agency (here, EPA). The agency action, in turn, seeing the handwriting on the wall that the Services will conclude that the action will jeopardize species and effectively terminate the proposal, will anticipate that result by changing their original proposal, have the Services analyze a new proposal, and then have the Services conclude with a no jeopardy opinion. So, if in fact the government’s view of what can be disclosed is correct, the public will never see the draft jeopardy opinion.

The justices’ questions seemed to suggest a third way whereby not just final biological opinions but also certain “formal” draft biological opinions would be subject to disclosure, but not any materials that precede such a draft opinion. A great deal of the questioning at oral argument attempted to discern the line between “formal draft opinions” and “truly drafts of drafts.”

Characterizing a document as a draft has practical effects on not just the consulting agency but also any private party applicant whose ESA permit has triggered the need for consultation in the first place. Both environmental groups and private parties who are regulated – either in their land use or other activities regulated by the ESA – are injured when they are unable to determine what exactly occurs behind the agencies’ doors when those consultations take place. Justice Barrett got at this very point when she inquired whether a biological opinion really has “coercive effect.”

While justices’ questions during oral argument are rarely a reliable indicator of how the Court will ultimately rule in a case, here they suggest agreement with the Services’ assertions that the documents were produced in “the molten core of deliberative process” and thus protected. It remains unclear whether the court will opt for a bright-line standard or a more fact-intensive inquiry about what qualifies as “pre-decisional.” Only time will tell.

Argument Analysis: U.S. Fish & Wildlife Service v. Sierra Club