Whether the “deliberative process” privilege protects draft documents that the USF&WS and the National Marine Fisheries Service created as part of a formal consultation process under Section 7 of the Endangered Species Act.

The ACLU, alongside the ACLU of Northern California and Citizens for Responsibility and Ethics in Washington, filed a Supreme Court amicus brief in U.S. Fish and Wildlife Serv. v. Sierra Club arguing that the deliberative process privilege under Exemption 5 of the Freedom of Information Act does not apply to a series of biological jeopardy opinions released by the Services because they are post-decisional and represent final agency positions. 

Congress enacted the Freedom of Information Act (“FOIA”) to enable public access to government records in an attempt to increase transparency in the political process. U.S. Fish & Wildlife Serv. v. Sierra Club concerns the application of a narrow carve-out in Exemption 5 of the Freedom of Information Act known as the “deliberative process privilege.” This privilege allows government agencies, in an important, but limited fashion, to withhold documents that are deliberative in nature to ensure that “frank and open discussion” is possible to make governmental operations more efficient and effective. The documents at issue in this case are two 2013 biological jeopardy opinions written by two “Services” (agencies within the Department of the Interior) that were sent to the Environmental Protection Agency (“EPA”) as part of a statutorily mandated environmental consultation process. The government argues that these opinions are merely advisory input by the Services with respect to the EPA, and therefore are pre-decisional and may be withheld under Exemption 5. The ACLU’s amicus brief in support of Sierra Club’s position (arguing for disclosure of the two opinions) first lays out the various factors courts must consider in applying the deliberative process privilege to government documents. It then argues that, according to this rubric, the Services’ opinions are post-decisional because they represent the final views of the Services and had a distinct operative effect on the consultation process, even if they were later used by the EPA in its own internal deliberations. Therefore, Exemption 5 does not apply and the documents should be released to the public.

This case presents an important opportunity for the Supreme Court to affirm the American public’s right of access to documents outlining government procedures under FOIA and limit the scope for which the government can claim the deliberative process privilege to keep documents secret.

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