Supreme Court Addresses When a “Draft Biological Opinion” Really is a “Draft” Under the FOIA

Today, in her first published opinion on the Supreme Court, Justice Barrett delivered the majority opinion in U.S. Fish & Wildlife Serv. v. Sierra Club, Inc., No. 19-547 (U.S. Mar. 4, 2021), a Freedom of Information Act (FOIA) case involving whether draft biological opinions of the Fish and Wildlife Service and National Marine Fisheries Service were exempt from public disclosure.  The Court ruled that they were, and overturned a contrary determination by the Ninth Circuit.

The case involved two draft biological opinions issued in connection with a rule proposed by the Environmental Protection Agency (EPA) concerning the the design and operation of cooling water intake structures.   The draft biological opinions were issued by the staffs of the respective Services during the consultation process of the Endangered Species Act (ESA).  The two drafts were “jeopardy” biological opinions in that they concluded that the proposed rule would likely jeopardize certain species and proposed  reasonable and prudent opportunities for EPA to pursue.  They were not approved by decisionmakers at either Service and were not sent to EPA.  There appeared to be evidence, however, that EPA knew that these “jeopardy” opinions were coming and that the EPA acted accordingly.  The consultation process continued, and EPA subsequently issued a significantly revised proposed rule.  In response, the Services issued a joint “no jeopardy” biological opinion.

In response to a FOIA request from the Sierra Club, the Services withheld the  draft “jeopardy” biological opinions under Exemption 5 of the FOIA covering pre-decisional or deliberative process materials.  The lower courts ruled the the documents were not exempt from disclosure, but the Supreme Court reversed in a 7-2 decision.

That the documents were marked “draft” was not determinative.  What mattered was the context in which these documents arose.   These documents had been the last thing that either Service had said on the issue and they provoked a response from EPA, but that did not make them final and disclosable.  “The recommendations were not last because they were final; they were last because they died on the vine.”  Majority op. at 10.  As the majority explained:

To determine whether the privilege applies, we must evaluate not whether the drafts provoked a response from the EPA but whether the Services treated them as final.  They did not.  The drafts were prepared by lower-level staff and sent to the Services’ decisionmakers for approval.  Sierra Club characterizes the drafts as polished documents  lacking only an autopen signature. But the determinative fact is not their level of polish—it is that the decisionmakers at the Services neither approved the drafts nor sent them to the EPA.  Instead, the decisionmakers concluded that “more work needed to be done” and extended the time for consultation with the EPA. These documents, then, are best described not as draft biological opinions but as drafts of draft biological opinions.

Majority op. at 9-10.

As for the potential that agencies could hide secret agency law with liberal use of the “draft” stamp, the majority noted that “[i]f the evidence establishes that an agency has hidden a functionally final decision in draft form, the deliberative process privilege will not apply.  The Services, however, did not engage in such a charade here.”  Id. at 10-11.

In his dissenting opinion, Justice Breyer disagreed that these documents were drafts of draft biological opinions.  His view was that a draft biological opinion is essentially a final position of the Service at that stage in the consultation process and has an effect in the process similar to a final biological opinion — both documents limit the EPA’s set of options.  Dissenting op. at 2, 5.  He did not address the point stressed by the majority that neither of these draft biological opinions had been approved by the Services’ decisionmakers.  Justice Breyer also pointed out that final biological opinions are made public and, in cases involving a permit or other action sought by a private party, draft biological opinions normally are disclosed to the private party thereby removing them from Exemption 5.  Id. at 3-4.

The outcome of this case may not be that significant because the case turned on whether the documents were “drafts” of draft biological opinions.  Had the two draft biological opinions been approved by decisionmakers in the two Services, it is not at all clear that the documents would have still be considered “deliberative” and exempt from disclosure.

Moreover, the potential for “secret law” developing within an agency is concerning for any business that is subject to the agency’s regulations.  The  majority’s treatment of that issue is not satisfying.  Given that discovery is not routinely allowed in FOIA cases, it is unclear how the majority believes it can be determined whether “an agency has hidden a functionally final decision in draft form.”  Majority op. at 11.  Perhaps that comes through a district court’s in camera review in a FOIA case, but in camera review is not routinely performed either.

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