U.S. Fish and Wildlife Service v. Sierra Club
Issues
Does the deliberative process privilege exemption under the Freedom of Information Act protect a federal agency’s draft documents from disclosure when those documents were created for an interagency consultation and ultimately altered an agency’s decision-making process and subsequent agency action?
This case asks the Supreme Court to determine whether the deliberative process privilege under Exemption 5 of the Freedom of Information Act protects interagency draft documents. The documents in question are draft biological jeopardy opinions produced by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service pursuant to Section 7 of the Endangered Species Act during an environmental consultation with the Environmental Protection Agency regarding a proposed agency regulation. The Sierra Club contends that the requested documents do not fall within the scope of the deliberative process privilege exemption because the jeopardy decision within the draft opinion was final, not tentative, and the documents shaped later agency decisions by requiring the Environmental Protection Agency to discontinue, modify, or seek an exemption for its proposed action. The U.S. Fish and Wildlife Service and the National Marine Fisheries Service argue that the requested documents fall within the scope of the deliberative process privilege exemption because the exemption aims to encourage effective governmental decision-making and must protect inter-agency documents and memoranda that have not been adopted as final to further this goal. By granting certiorari in this case, the Supreme Court will determine the extent to which government agencies can invoke the deliberative process privilege and the correlative scope of the public’s right of access to information under the Freedom of Information Act.
Questions as Framed for the Court by the Parties
Whether Exemption 5 of the Freedom of Information Act, by incorporating the deliberative process privilege, protects against compelled disclosure of a federal agency’s draft documents that were prepared as part of a formal interagency consultation process under Section 7 of the Endangered Species Act of 1973 and that concerned a proposed agency action that was later modified in the consultation process.
In 2012 and 2013, the Environmental Protection Agency (EPA) consulted with the U.S.
Edited by
Additional Resources
- Ellen M. Gilmer, Supreme Court Environmental Cases Could Stretch to Climate, Coal, Bloomberg Law (Sept. 29, 2020).
- Ellen M. Gilmer, Supreme Court to Review Endangered Species FOIA Case (1), Bloomberg Law (Mar. 2, 2020).