Fish and Wildlife Service v. Sierra Club

Whether the deliberative process privilege incorporated in Exemption 5 of the Freedom of Information Act protects a federal agency from compelled disclosure of draft documents created as part of a formal consultation process under Section 7 of the Endangered Species Act where the consultation process resulted in subsequent modification of said draft documents.

The U.S. Environmental Protection Agency (EPA) proposed new regulations for cooling water intake structures in 2011. The EPA consulted with Petitioners about the impact of such regulation under the Endangered Species Act and Petitioners created draft opinions finding the rule unlikely to jeopardize protected species. Respondent made a Freedom of Information Act request to Petitioners for records created as part of the EPA’s new regulation proposal, which included the unfinalized draft opinions, but Petitioners withheld such records under the deliberative process privilege. Respondents filed suit, arguing that Petitioners improperly withheld the draft opinions under the deliberative process privilege. The district court determined that 12 of the 16 requested records did not fall within the scope of the deliberative process privilege. The Ninth Circuit affirmed in part, remanding the case to the district court to perform a segregability analysis. The Ninth Circuit reasoned that the draft opinions that it ordered Petitioners to disclose reflected Petitioners’ final view on the impact of proposed regulations and lacked any editing or written commentary that would suggest that the draft opinions did not constitute final products. Petitioners now argue to the U.S. Supreme Court that the Ninth Circuit’s decision risks inhibiting frank deliberations between agencies by viewing the draft opinions as final products even though Petitioners did not issue the drafts in final form.