U.S. Supreme Court Expands the Deliberative Process Exemption to FOIA, Offering Federal Agencies Greater Protections

5 min

In Justice Amy Coney Barrett's first majority opinion since joining the United States Supreme Court, the Court expanded the Freedom of Information Act's (FOIA) protections for federal agencies by narrowing the category of documents required to be released thereunder in a 7-2 decision. See United States Fish & Wildlife Serv. v. Sierra Club, Inc., No. 19-547, 2021 WL 816352 (U.S. Mar. 4, 2021) The decision is noteworthy for contractors because it will likely make it more difficult to obtain certain documents from federal agencies through FOIA requests.

FOIA Exemption 5

FOIA requires that federal agencies disclose documents upon public request, unless those documents fall under one of the nine limited exceptions set forth in 5 U.S.C. § 552(b). Exemption 5 shields from disclosure records subject to the deliberative process privilege, which protects documents reflecting advisory opinions and deliberations comprising the process by which the Government formulates decisions and policies, as opposed to documents that embody or explain a policy that the agency adopts.

The Court's Decision

The Court's decision focused on whether the deliberative process privilege “protects in-house drafts that proved to be the agencies’ last word about a proposal’s potential threat to endangered species,” such that the drafts would be exempt from disclosure under FOIA.

In April 2011, the Environmental Protection Agency (EPA) proposed a rule on the design and operation of "cooling water intake structures," which withdraw large volumes of water from various sources to cool industrial equipment. These structures can sometimes trap and kill fish and other organisms, including species protected under the Endangered Species Act (ESA). Prior to taking an action that may negatively affect an endangered species, an agency must consult with the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS). The FWS and NMFS draft "biological opinions" on whether a proposed action will jeopardize the continued existence of threatened or endangered species. If the action will cause "jeopardy," FWS and NMFS will propose "reasonable and prudent alternatives" to avoid harming the threatened species. An agency that receives such an opinion must either implement the alternatives, terminate the action altogether, or seek an exemption from the Endangered Species Committee.

The relevant regulations required the FWS and NMFS to provide the EPA, upon request, with a "draft biological opinion" regarding the proposed cooling water intake structures rule. Both FWS and NMFS prepared draft biological opinions which concluded that the rule was likely to endanger certain species and identified possible reasonable and prudent alternatives. However, neither draft biological opinion was shared with the EPA, which instead continued discussions with the FWS and NMFS on its proposed rule. The EPA eventually sent FWS and NMFS a new version of its proposed rule that differed greatly from the previous version submitted. FWS and NMFS determined that this new version of the rule would not likely harm any protected species and issued their final "no jeopardy" biological opinions. The EPA issued its final rule the same day.

Sierra Club, an environmental organization, subsequently submitted FOIA requests for records related to FWS and NMFS's consultation with the EPA. In response, FWS and NMFS refused to produce the draft biological opinions analyzing the initial version of the EPA's proposed rule, arguing they were non-final, draft documents protected by the deliberative process privilege and so were not subject to disclosure under FOIA Exemption 5.

The Court agreed with FWS and NMFS that the draft biological opinions were protected by the deliberative process privilege.

What This Decision Means for Government Contractors

The opinion is remarkable because of its narrow interpretation of what constitutes a document embodying a final decision. As the Court noted, the deliberative process privilege generally "shields from disclosure 'documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.'" This "encourage[s] candor, which improves agency decisionmaking" and "blunts the chilling effect that accompanies the prospect of disclosure." Thus, the privilege does not apply "to documents that embody a final decision, because once a decision has been made, deliberations are done."

In this case, the Court found that the draft biological opinions did not embody the final decisions of the FWS and NMFS concerning the EPA's initial cooling water intake structures rule, even though those opinions were effectively the "last word" on whether that rule placed endangered species in jeopardy. The Court gave several reasons: (1) the draft biological opinions were subject to change; (2) the draft biological opinions had no real operative legal effect; and (3) the FWS and NMFS did not treat the draft biological opinions as final. It did not matter that relevant law required FWS and NMFS to share the draft biological decisions with the EPA upon request, nor did the fact that they could have a practical (rather than legal) effect on the EPA's decision-making render them "final." As the Court wrote: "A document is not final solely because nothing else follows it. Sometimes a proposal dies on the vine."

Sierra Club expressed a concern that many reading this decision will have: "ruling against it here would permit" agencies to "stamp every document 'draft,' thereby protecting even final agency decisions and creating 'secret [agency] law.'" The Court assured Sierra Club that "[i]f the evidence establishes that an agency has hidden a functionally final decision in draft form, the deliberative process privilege will not apply." Nonetheless, Justice Stephen Breyer's dissenting opinion noted that, as a functional matter, it is draft biological opinions rather than final biological opinions which are "the" document triggering the EPA's process of responding to the FWS's and NMFS's conclusions: "'out of 6,829 formal consultations' between 2008 and 2015, the Fish and Wildlife Service 'issued a [Final Biological Opinion finding] jeopardy' 'only twice.'"


The Court's decision will likely make it more difficult to obtain documents through FOIA requests where a federal agency can credibly claim that Exemption 5 applies. Contractors submitting FOIA requests inquiring into certain agency decisions or actions should consider whether they can show that the requested records embody a final agency decision under the standard described by the Court in United States Fish & Wildlife Serv. v. Sierra Club, Inc. Indeed, under the Court's decision, as Justice Breyer suggests, it will be particularly hard to prove that documents marked as "draft" fall outside of the deliberative process privilege.