Barrett writes first majority Supreme Court opinion in FOIA dispute

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Washington — The Supreme Court on Thursday shielded draft documents from a pair of federal agencies from disclosure under a widely used federal public records law, with Justice Amy Coney Barrett authoring her first majority opinion since joining the high court in October.

The Supreme Court ruled 7-2 in favor of the U.S. Fish and Wildlife Services and National Marine Fisheries Service in their dispute with the Sierra Club, which sought records related to the services’ consultations with the Environmental Protection Agency (EPA) under the Freedom of Information Act (FOIA). Justices Stephen Breyer and Sonia Sotomayor dissented.

The legal battle stems from a rule the EPA proposed in 2011 regarding “environmental water intake structures,” which are used to cool industrial equipment. The agency consulted with the Fish and Wildlife Service and National Marine Fisheries Service before proceeding with its measure, as marine wildlife can become trapped in the structures and die.

The two services issued draft “biological opinions” in late 2013 in response to the proposed rule, which found it was likely to jeopardize certain species, though the documents were never sent to the EPA. The following year, in March 2014, the EPA sent another proposed rule that differed from the earlier 2013 version.

In response to the 2014 proposed rule, the services issued a final “no jeopardy” biological opinion, finding the revised rule was unlikely to harm protected species. The EPA then issued its final rule. 

The Sierra Club submitted requests under the Freedom of Information Act for records related to the services’ consultations with the EPA. But the services invoked a FOIA exemption that 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,” and declined to turn over the draft biological opinions that analyzed the 2013 proposed rule from the EPA.

The exemption used by the services lists privileges afforded to federal agencies during civil litigation, including the “deliberative process privilege.”

The Sierra Club then sued to obtain the documents, and the U.S. 9th Circuit Court of Appeals found the draft biological opinions were not privileged.

But the Supreme Court reversed the lower court’s decision, finding the deliberative process privilege shields the draft opinions because they reflect a preliminary review about the proposed, not final, rule.

“It is true, as Sierra Club emphasizes, that the staff recommendations proved to be the last word within the Services about the 2013 version of the EPA’s proposed rule,” Barrett wrote in her 11-page opinion. “But that does not change our analysis. The recommendations were not last because they were final; they were last because they died on the vine.”

The staff recommendations, she wrote for the majority, were “part of a deliberative process that worked as it should have.”

“The deliberative process privilege protects the draft biological opinions from disclosure because they are both predecisional and deliberative,” the court found.

The opinion from Barrett is her first for a majority of the Supreme Court. In a dispute involving California’s restrictions on indoor worship services to mitigate the spread of the coronavirus, Barrett authored a concurring opinion, in which she was joined by Justice Brett Kavanaugh.

Barrett was appointed to the Supreme Court by former President Donald Trump in October following the death of Justice Ruth Bader Ginsburg. Her nomination was controversial, as the vacancy on the high court came just weeks before the 2020 presidential election.

Democrats contended, as Republicans did in 2016 after the death of Justice Antonin Scalia, that the voters should be able to choose the president who would fill the seat. But the GOP-led Senate charged ahead with Barrett’s nomination, confirming her to the Supreme Court a week before Election Day.

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