There are situations in which a government contractor might want access to documents held by the government. The Freedom of Information Act (FOIA) provides a means to acquire such documents. FOIA requires federal agencies to make records available to the public upon request unless those records fall within one of nine exemptions. See 5 U. S. C. §552(b). The fifth of those exemptions protects “inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency.” §552(b)(5). This somewhat cumbersome language means that the exemption incorporates the evidentiary privileges available to government agencies in civil litigation, including the deliberative process privilege which protects from disclosure documents generated during an agency’s deliberations about a policy, as contrasted with documents that embody or explain a policy that the agency finally adopts. In other words, as the Supreme Court previously commented, the deliberative process privilege protects government agencies from being “forced to operate in a fishbowl.”
In a recent 7-2 decision, the Supreme Court held that the deliberative process privilege protects draft documents that reflect preliminary thinking from disclosure because they are both predecisional — that is, not final — and deliberative. See United States Fish & Wildlife Serv. v. Sierra Club, Inc., ___ U.S. ___, No. 19-547 (March 4, 2021).
The Environmental Protection Agency (EPA) proposed a rule on the design and operation of cooling water intake structures used to cool industrial equipment. The purpose of the proposed rule was to protect endangered species from harm from water intake structures that can kill fish and other animals. When an agency, such as the EPA, plans to undertake an action that might “adversely affect” a protected species, the agency must consult with the U. S. Fish and Wildlife Service and National Marine Fisheries Service (hereafter “the Services”) before proceeding with the action. The goal of the consultation is to assist the Services in preparing an official “biological opinion” on whether the agency’s proposal will jeopardize endangered species. These opinions are known as “‘jeopardy’” or “‘no jeopardy’” biological opinions. If the Services conclude that the action will cause “jeopardy,” they must propose reasonable alternatives to the action that would avoid harming the threatened species.
In 2013, the EPA consulted with the Services about its proposed rule, and conducted meetings, held conference calls, and exchanged emails and draft documents on the proposed rule and its potential effect on endangered species. As a result of the consultation, the EPA revised its proposed rule and sent the revision to the Services in November 2013. By early December, the two Services had completed draft, biological opinions stating that EPA’s proposed rule was likely to jeopardize certain species and identifying possible alternatives that the EPA could pursue. Staff members sent the drafts to the relevant decision-makers within each Service but did not send them to the EPA, and decision-makers at the Services neither approved the drafts nor sent them to the EPA. Instead, they concluded that more work needed to be done and decided to continue discussions with the EPA. The EPA was still engaged in an internal debate about key elements of the rule, and the Services wanted a better grasp of what the EPA proposed to do. Over the next three months, the Services and the EPA continued to discuss the rule, and in March 2014, the EPA sent to the Services a proposed rule that differed significantly from the 2013 version. Satisfied that the revised rule was unlikely to harm any protected species, the Services issued a joint final “no jeopardy” biological opinion, and thereafter the EPA issued its final rule.
Pursuant to FOIA, the Sierra Club submitted a request for documents, and the Services produced thousands of documents but not the draft biological opinions analyzing the EPA’s 2013 version of the proposed rule. The Sierra Club sued in federal court demanding the draft biological opinions. The Sierra Club contended that the opinions were in effect final decisions rejecting the 2013 version of EPA’s proposed rule. The U.S. district court and the Ninth Circuit Court of Appeals agreed with the Sierra Club, but the Supreme Court reversed.
The Court said that the deliberative process privilege protects documents that reflect preliminary thinking as opposed to a final decision about a problem. The privilege applies to advisory opinions, recommendations, and deliberations that are part of the decision-making process. There is a distinction between predecisional documents and final documents, and the privilege does not cover documents that embody the final decision. Obviously, documents created after a final decision cannot be protected by the deliberative process privilege because after a decision, deliberations are over. However, a document is not final solely because nothing else follows it. Sometimes a proposal simply dies on the vine, which happens in deliberations. Some ideas are discarded or simply languish, but documents discussing such dead-end ideas can hardly be described as reflecting the agency’s chosen or final course. What matters is not whether a document is last in line, but whether it communicates an agency’s final decision on a policy.
If a document is marked “draft” that is one indication that the document is not final, but it is not dispositive on the issue of finality. The government cannot immunize a document from disclosure simply by stamping it with the word “Draft.”
The Court held that the draft biological opinions at issue, in this case, reflect a preliminary view—not a final decision—about the likely effect of the EPA’s proposed rule on endangered species. The draft opinions did not end discussion of the issue and were followed by further deliberation and consultation. The Court held that the deliberative process privilege protects the draft biological opinions from disclosure because they are both predecisional — that is, not final — and deliberative, which are the keywords in the opinion. The take-away from the Court’s opinion is that if a document was generated before a final decision (predecisional) and if it was part of the decision-making (deliberative) process, then the document is covered by the deliberative process privilege.
The Court’s decision defines the scope of the deliberative process privilege as applied to documents and clearly, it is important in those cases in which the government refuses to disclose documents based on the privilege. But will the decision have a significant impact overall on government contractors’ ability to obtain documents from federal agencies through FOIA requests? That is difficult to say because we have no data on how often the government invokes the privilege in matters concerning government contracts, and absent reliable data it is best not to speculate.
John Polk is a Special Counsel at Berenzweig Leonard, LLP. John can be reached at JPolk@BerenzweigLaw.com.