United States Fish and Wildlife Serv. v. Sierra Club, Inc.

The deliberative process privilege shields predecisional and deliberative documents from Freedom of Information Act requests, but documents which communicate an agency’s settled position on a matter are not protected.

Respondents submitted Freedom of Information Act (FOIA) requests for draft biological opinions related to an abandoned proposal for an Environmental Protection Agency (EPA) rule.  Petitioners refused to produce the opinions, claiming that they were protected from FOIA requests by the deliberative process privilege. Respondents sued Petitioners, arguing that the opinions were subject to FOIA disclosure.  The District Court and the Ninth Circuit agreed with Respondents.  On appeal, the Supreme Court of the United States reversed, holding that the deliberative process privilege protected “the draft biological opinions from disclosure” because the opinions were “both predecisional and deliberative.”  The Court reasoned that the privilege covers both “predecisional” documents—generated prior to an agency’s final decision—and “deliberative” documents—prepared to aid an agency’s decision.  NLRB v. Sears, Roebuck & Co., 421 U. S. 132, 150–52 (1975).  Further, the privilege does not cover documents treated as an agency’s final view on the matter and considered to communicate an agency’s settled position.  Id.  The opinions at issue were not treated by Petitioners as final; the decisionmakers neither approved nor sent the drafts to the EPA.  Therefore, the draft biological opinions were covered by the privilege and not subject to disclosure.  REVERSED and REMANDED.