Earlier this month, the U.S. Supreme Court decided 7-2 that federal agencies can withhold documents from public release under the Freedom of Information Act (FOIA) if they are both pre-decisional and deliberative. In U.S. Fish and Wildlife Service v. Sierra Club, the court reviewed the government’s use of FOIA’s Exemption 5, and weighed the public’s interest in accountable and transparent government decision-making against an agency’s ability to deliberate about the policy and decisions they are documenting.
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FOIA requires that federal agencies make records available to the public upon request, unless those records fall within one of nine exemptions. FOIA exemptions can be discretionary or mandatory: Discretionary exemptions permit, but do not require, an agency to withhold exempted information, while mandatory exemptions require an agency to withhold exempted information. Among the nine is the discretionary Exemption 5, which includes the deliberative process privilege. The deliberative process privilege protects “documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated” from being disclosed. In sum, Exemption 5 is meant to encourage open and frank discussions on matters of government policy by allowing the government to withhold pre-decisional documents from public release.
However, the way in which federal agencies apply Exemption 5 doesn’t necessarily match its given purpose to encourage open discussions. Agencies are instead using it to automatically shield government documents from view.
U.S. Fish and Wildlife Service v. Sierra Club dealt with a 2011 proposed rule at the Environmental Protection Agency regarding power plants’ cooling water intake structures. Because “aquatic wildlife can become trapped in these intake structures and die,” the EPA was required to consult with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service to determine whether it should change its regulations. After reviewing the EPA’s proposed change, both services concluded that the new rule would likely “jeopardize” certain species. That opinion was never officially conveyed to the EPA. Had it been, the EPA would have had to mitigate those harms in the final rule.
Instead, the EPA opened discussions with the services, and in the end the services shelved their initial opinions. The EPA issued a revised rule, and the services signed off on it. The Sierra Club filed a FOIA request in 2014 seeking the services’ records related to their consultations with the EPA, but the services refused to disclose the records, invoking Exemption 5. The Sierra Club sued, and the district court held that the agency had to release the documents. On appeal, the U.S. Court of Appeals for the Ninth Circuit held that even though the requested records were marked “draft,” they were not pre-decisional or deliberative and therefore could not be withheld under Exemption 5. The Supreme Court disagreed.
The court held that the deliberative process privilege protects in-house draft opinions that are both pre-decisional and deliberative from disclosure under FOIA, even if the drafts reflect the agencies’ last views about a proposal. Because the draft biological opinions were never approved by decision makers at the services or transmitted to the EPA, the court determined they represented a preliminary view—not a final decision—about the EPA’s proposed 2013 rule, and could therefore be considered pre-decisional for the purposes of FOIA.
Here, the court favored agency secrecy over transparency, and gave a stamp of approval to an application of Exemption 5 that government transparency groups have been trying to reform for years. Agencies frequently stretch Exemption 5 to justify withholding records because those records paint the agency in a bad light, reveal problems, or contain embarrassing information. While it’s unclear if there was a problem with these specific records painting the EPA or the services in a bad light, it is clear that this decision will exacerbate the application of Exemption 5 moving forward unless Congress steps in to reform FOIA.
It is now on Congress to again reform FOIA so that the law requires as much government transparency as possible. In the most recent round of FOIA reform, the FOIA Improvement Act of 2016 codified a “foreseeable harm” standard in Exemption 5, which now requires agencies to determine whether the release of particular records will cause foreseeable harm before they can withhold the records from release. The next round of reforms to the law should go even further, including creating a balancing test for the deliberative process privilege which would require agencies to release information where the public’s interest in disclosure outweighs the government’s interest in secrecy; requiring the government to identify a specific identifiable harm before being allowed to withhold records under a discretionary exemption (similar to the House version of the 2016 FOIA Improvement Act); shrinking the amount of time records can be withheld under the exemption; and requiring greater proactive disclosure by agencies. These reforms will greatly reduce costs and resources on the government’s end, both when initially going through documents and when going through litigation, which is costly for both parties. In the past, POGO has also called for shrinking the amount of time records can be withheld to 12 years, which is the same cap for shielding presidential records involving the deliberative process.
With sunlight being the best disinfectant, POGO will continue to work with our partners to pursue reforms that improve FOIA and increase transparency and accountability in government.