Text here: https://www.supremecourt.gov/opinions/20pdf/19-547_08m1.pdf
My first blush summary:
The EPA passed a rule in 2014. Some organizations wanted more information about the process for creating the rule.
The case is specifically about requests for "draft biological opinions" drafted by the U.S. Fish and Wildlife Services and the National Marine Fisheries Service that were analyzed by the EPA. The Services internally considered these draft opinions, consulted with the EPA, the EPA rewrote the rule, the Services consulted with the EPA again, and eventually a new rule came out.
The suing organizations asked for those draft opinions that were created by the Services. The 9th Circuit said they could get them. SCOTUS says no.
Here is the boiled down background and holding:
In my opinion, you are balancing two issues: government transparency, and the ability of beaurocrats in government agencies to be specific and frank when writing or administering the law. Here, the EPA and the Services were trying to work together to find a rule that they could agree on, through a few iterations. The Sierra Club is saying that those draft opinions should be discoverable, since they were final opinions on a proposed rule.
But, making this kind of interaction discoverable would just make it harder for agencies to work together. If every comment and draft was discoverable, then conversations when the people in charge are deliberating things will sound like mob talk: "You know, what do you think, though, about the guy, and his issue with the thing from the place with the other guy."
The key here is that the documents are held to be "predecisional and deliberative". It's beaurocrats arguing / brainstorming.
Government is better when people that are making the rules can be frank with each other. Agencies can work together better when they can be frank with inter-agency communications.
In all, I think that this is a good decision. Interested in other viewpoints.
My first blush summary:
The EPA passed a rule in 2014. Some organizations wanted more information about the process for creating the rule.
The case is specifically about requests for "draft biological opinions" drafted by the U.S. Fish and Wildlife Services and the National Marine Fisheries Service that were analyzed by the EPA. The Services internally considered these draft opinions, consulted with the EPA, the EPA rewrote the rule, the Services consulted with the EPA again, and eventually a new rule came out.
The suing organizations asked for those draft opinions that were created by the Services. The 9th Circuit said they could get them. SCOTUS says no.
Here is the boiled down background and holding:
Quote:
Respondent Sierra Club, an environmental organization, submitted requests under the Freedom of Information Act (FOIA) for records related to the Services' consultations with the EPA. As relevant here, the Services invoked the deliberative process privilege to prevent disclosure of the draft biological opinions analyzing the EPA's 2013 proposed rule. The Sierra Club sued to obtain these withheld documents, and the Ninth Circuit held that the draft biological opinions were not privileged because even though labeled as drafts, the draft opinions represented the Services' final opinion regarding the EPA's 2013 proposed rule.
Held: The deliberative process privilege protects from disclosure under FOIA in-house draft biological opinions that are both predecisional and deliberative, even if the drafts reflect the agencies' last views about a proposal.
In my opinion, you are balancing two issues: government transparency, and the ability of beaurocrats in government agencies to be specific and frank when writing or administering the law. Here, the EPA and the Services were trying to work together to find a rule that they could agree on, through a few iterations. The Sierra Club is saying that those draft opinions should be discoverable, since they were final opinions on a proposed rule.
But, making this kind of interaction discoverable would just make it harder for agencies to work together. If every comment and draft was discoverable, then conversations when the people in charge are deliberating things will sound like mob talk: "You know, what do you think, though, about the guy, and his issue with the thing from the place with the other guy."
The key here is that the documents are held to be "predecisional and deliberative". It's beaurocrats arguing / brainstorming.
Government is better when people that are making the rules can be frank with each other. Agencies can work together better when they can be frank with inter-agency communications.
In all, I think that this is a good decision. Interested in other viewpoints.
