U.S. Supreme Court

In first merits opinion by Barrett, SCOTUS rules against environmental group seeking draft rule-making document

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The U.S. Supreme Court ruled 7-2 Thursday that draft rule-making documents were protected from disclosure under a Freedom of Information Act request by the Sierra Club.

The high court ruled that two “draft biological opinions” on threats to endangered species were protected from disclosure by FOIA’s deliberative process privilege.

Justice Amy Coney Barrett wrote the majority opinion. It is her first merits opinion for the court, SCOTUSblog reports.

The Sierra Club had sought the documents in connection with a proposed regulation on “cooling water intake structures,” which draw water to cool industrial equipment. The Environmental Protection Agency, which proposed the regulation, had to seek input on whether the regulation would harm threatened or endangered species from two other government agencies—the U.S. Fish and Wildlife Service and the National Marine Fisheries Service.

The Sierra Club received thousands of documents as a result of its information request but not the services’ draft opinions on endangered species that could be harmed by the water-intake rule as proposed in 2013. The draft opinions had been shelved, more discussions were held, and the EPA devised a different rule. The Sierra Club had argued that the draft opinions were actually final opinions because they were the final opinions on the 2013 rule.

During oral arguments in November, Barrett asked the lawyer representing the federal government how judges should respond when they suspect that documents were marked as drafts to avoid disclosure. She suggested a bright-line rule that all documents be protected from disclosure until they are final.

Barrett’s opinion for the court turned on finality. She wrote that a document is not exempted from disclosure until it “communicates a policy on which the agency has settled.” Labeling a document a draft is not determinative, and context must be taken into account, she said.

In the case before the high court, “the administrative context confirms that the drafts are what they sound like: opinions that were subject to change,” she wrote. The regulations require that a draft opinion be made available to the EPA, and a final opinion can’t be issued while the draft is under review.

The deliberative privilege would not apply if an agency hid a functionally final decision in draft form, she added. But there was no such “charade” in the Sierra Club case, she said.

“A document is not final solely because nothing else follows it. Sometimes a proposal dies on the vine,” Barrett wrote. “What matters, then, is not whether a document is last in line, but whether it communicates a policy on which the agency has settled.”

Justice Stephen G. Breyer dissented in an opinion joined by Justice Sonia Sotomayor.

The case is U.S. Fish and Wildlife Service v. Sierra Club.

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