The Freedom of Information Act (“FOIA”) requires federal agencies to produce certain documents upon request to the general public unless one of nine exemptions applies. FOIA’s fifth exemption “protects from disclosure documents generated during an agency’s deliberations about a policy, as opposed to documents that embody or explain a policy that the agency adopts.” On March 4, 2021, in United States Fish and Wildlife Service et al. v. Sierra Club, Inc., No. 19-547, the Supreme Court of the United States held that draft biological opinions prepared by the U.S. Fish and Wildlife service (“FWS”) and National Marine Fisheries Service (“NMFS”) (collectively, the “Services”) fall within this deliberative process privilege exemption.

The FOIA request at issue here was the Sierra Club’s request for the Services’ draft biological opinions for the Environmental Protection Agency’s (“EPA’s”) 2013 proposed rule for the design and operation of cooling water intake structures. The draft biological opinions had determined that the 2013 proposed rule would likely jeopardize certain species protected by the Endangered Species Act. Neither draft was finalized and both the Services and EPA concluded that “more work needed to be done,” resulting in a significantly altered 2014 proposed rule. When requested to produce the draft biological opinions related to the 2013 proposed rule, the Services cited to the deliberative process protection of FOIA and denied the request. On appeal, the Ninth Circuit Court of Appeals agreed with the District Court holding that despite being labeled as drafts, these opinions nonetheless represent the Services’ final opinion on the 2013 proposed rule and therefore were not privileged.

The Supreme Court reversed the Court of Appeals’ holding. In delivering the opinion of the Court, Justice Barrett emphasized function over formality when determining whether an agency’s position is final for the purpose of applying FOIA’s deliberative process privilege. The mere fact that nothing else follows does not determine whether the document is final as “[s]ometimes a proposal dies on the vine.” Agencies must be free to engage in candid, deliberations without fear of having to disclose incomplete decisions. Such was the case here, where the Services’ draft opinions were both predecisional and deliberative – rather than documents that “communicate[] a policy on which the agency has settled.” However, the Court did remand the case to determine whether there are parts of the draft biological opinions which are segregable and subject to production under FOIA.

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