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Justice Scalia once referred to the Freedom of Information Act (FOIA) as “the Taj Mahal of the Doctrine of Unintended Consequences,” citing the costs that the law has imposed over the years on government. And there is no doubt that FOIA is one of the most consequential rules of the road for the administrative state, mandating disclosure of agency records in response to requests from members of the public. But a case currently pending before the Supreme Court could narrow FOIA’s scope, at least if the Court is inclined to give credence to one of Chief Justice Roberts’s suggestions, itself based on a unitary executive theory of agency decisionmaking.
Much of the litigation around FOIA centers on the nine disclosure exemptions that Congress provided in the law. One of these exemptions, commonly known as “Exemption 5,” permits nondisclosure of “inter-agency or intra-agency memorandums or letters which would not be available by law to a party … in litigation with the agency.” Exemption 5 incorporates civil discovery privileges, including the deliberative process privilege, which shields documents that are pre-decisional and deliberative. This means it generally protects from disclosure documents “reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.”
Earlier this month, the Supreme Court heard oral argument in U.S. Fish and Wildlife Service v. Sierra Club, which concerns the government’s refusal to disclose “draft” biological opinions from the U.S. Fish and Wildlife Service and the National Marine Fisheries Service. Under the Endangered Species Act, federal agencies must engage in interagency consultation to ensure that their rulemakings do not jeopardize vulnerable species or critical habitat. A few years ago, staff at the two Services (housed in the Interior and Commerce Departments) prepared biological opinions as part of one of these interagency consultations with the Environmental Protection Agency (EPA). The Services had prepared the draft opinions to inform the EPA’s consideration of an industry regulation on “cooling water intake structures.” The EPA’s now-final rule on the issue is, of course, public record, but the Sierra Club wants more—it wants copies of the Services’ draft opinions, which were responsive to an earlier draft version of the rule and provided to the EPA as part of the mandatory consultation.
But the government refuses to provide the draft opinions and argues that its refusal is supported by Exemption 5. As the government explains in its brief, “[t]he consultation process was lengthy and involved extensive back-and-forth among the three agencies, which worked collaboratively to achieve a regulatory solution that would benefit ESA-listed species.” Regarding the draft rule in question, the Services prepared draft biological opinions in December 2013 and shared them with the EPA, but these were not formal, final opinions. Nevertheless, based on those draft opinions, the EPA scrapped its initial rule and continued consulting with the Services to rework the regulation. Later, upon receiving a new draft rule from the EPA, the Services issued a (public) final biological opinion that the updated cooling water intake structures rule would not violate the Endangered Species Act. The EPA then quickly finalized the revised rule.
The government argues that the draft opinions are not subject to FOIA because the Services never formally finalized them. And without formal finalization, the argument goes, the government could withhold the drafts under Exemption 5 as pre-decisional.
This argument about what is pre-decisional prompts the question: What decision? Notably, the government and the Sierra Club agree that the “decision” in question here was the Services’ decision whether the EPA rule complied with the Endangered Species Act—in other words, the biological opinion was the decision, and if the opinion had been final, both sides agree that disclosure would be mandatory.
But this is hardly intuitive, as Chief Justice Roberts pointed out at argument. Chief Justice Roberts asked why the “decision” here was not simply the EPA’s ultimate rule, which the biological opinions were produced to inform. Counsel for the government responded that the Endangered Species Act and implementing regulations make clear “that there is a decisionmaking process that concludes with the issuance of the final biological opinion.” But “if the Court were to view the deliberations here more broadly as encompassing also the EPA’s rulemaking, then it’s clear that the EPA didn’t make a final decision and didn’t issue a final rule in that rulemaking until May 2014. So the drafts that are at issue here would also be pre-decisional with respect to the EPA’s final rule.”
The Chief Justice’s question appeared to be based on a unitary executive understanding of the various agencies’ roles. Under this theory, one need not look at the product of an interagency consultation—whose purpose is to inform a rulemaking—as final, because the only truly final product is the ultimate decision of the executive branch (i.e., the rulemaking itself). Although the relevant statutory scheme demands an interagency consultation process, any document created to better inform the consultation process would be necessarily pre-decisional if the relevant decision is the EPA’s forthcoming rule. So, while the rule that blossoms from the interagency consultation is the decision, the biological opinions—whether labeled “draft” or “final”—are merely advisory documents, part of the (unitary) executive branch’s decisionmaking process.
On this view, Sierra Club is actually an easy case. It does not turn on whether an agency staffer slapped the word “DRAFT” on a final-ish biological opinion. Instead, the only thing the Court would need to ask here under FOIA’s Exemption 5 is whether the document in question represented the executive branch’s final decision on a matter. This approach would avoid the need to engage in a fact-specific inquiry in each case based on such factors as “line edits, marginal comments, or other written material that expose any internal agency discussion” within the document (all of which the Ninth Circuit considered in the opinion below in deciding whether the biological opinions were drafts or final).
Given Chief Justice Roberts’s apparent interest in this conception of what is “pre-decisional,” it is entirely possible that the unitary executive theory is on a crash course with FOIA’s Exemption 5. When considering how this exemption could square with what a “decision” is in the context of the administrative state, the Chief Justice’s question could light the way toward a new FOIA jurisprudence, redefining the deliberative process privilege through a more whole-of-government approach that sees individual agencies as component parts of a larger institution: the presidency.
Note: The author worked as speechwriter at the Department of the Interior from 2017-19, but did not work on the matter discussed here.