Courthouse Steps Decision Teleforum: U.S. Fish and Wildlife Service v. Sierra Club

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In this case, Sierra Club, Inc. submitted a FOIA request to the U.S. Fish and Wildlife Service requesting biological impact reports that were made in consultation with the Environmental Protection Agency.  The EPA had planned to construct “cooling water intake structures” and in compliance with the Clean Water Act consulted with U.S. Fish and Wildlife on the question of biological impact.  Citing FOIA Exemption 5, the deliberative process privilege, Fish and Wildlife withheld the draft reports.  Sierra Club sued and both the District Court and Ninth Circuit sided with Sierra Club, holding to varying degrees that the deliberative process privilege did not cover the requested reports.  In Justice Barrett’s first majority opinion and by a 7-2 margin, the Supreme Court overruled the Ninth Circuit’s decision finding that the deliberative process exemption covers “predecisional and deliberative” documents and so protects the draft biological impact reports from FOIA disclosure.



Nancie Marzulla, Partner, Marzulla Law 

Damien Schiff, Senior Attorney, Pacific Legal Foundation 


Dial 888-752-3232 to access the call.

Event Transcript



Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at



Greg Walsh:  Welcome to The Federalist Society’s Teleforum conference call. This afternoon’s topic is a Courthouse Steps Oral Argument episode on U.S. Fish and Wildlife Service v. Sierra Club. My name is Greg Walsh, and I am an Assistant Director of Practice Groups at The Federalist Society.


      As always, please note that all expressions of opinion are those of the experts on today’s call.


Today, we are fortunate to have joining us Nancie Marzulla, partner at Marzulla Law, and Damien Schiff, Senior Attorney at the Pacific Legal Foundation. After our speakers give their opening remarks, we will go to audience Q&A. Thank you all for sharing with us today. Nancie, the floor is yours.


Nancie Marzulla:  Thank you, Greg. I’m, of course, Nancy Marzulla as Greg introduced me, and I am here, as Greg also noted, with Damien Schiff. He is a Senior Attorney in the Environmental Practice Group at Pacific Legal Foundation, and Damien focuses on litigation involving the Endangered Species Act and the Clean Water Act. So we are here today to discuss the Supreme Court’s decision in U.S. Fish and Wild Service v. Sierra Club, which was issued a week ago and was the first decision -- Supreme Court decision, I should say, authored by Justice Barrett.


Now, at first blush that decision appears to be a fairly unremarkable decision involving the government’s use of the deliberative process privilege, Exemption 5 for those of you who are up on FOIA, the Freedom of Information Act. But a closer reading of that decision, as Damien and I will discuss today, will reveal that there are a number of important issues implicated in this ruling. So first, you’re going to hear from Damien who will describe the issues in the case, the Court’s decision, and the underpinnings of that decision.


Damien Schiff:  Thank you, Nancie, and thank you to The Federalist Society for hosting today’s call. As Nancie mentioned, the decision from last week in Fish and Wildlife v. Sierra Club concerned Exemption 5 of FOIA, which excludes from the obligation to disclose public documents under FOIA for those documents that are interagency or interagency memorandums or letters that would not be available by law to a party in litigation with the Agency. And that general privilege has been interpreted by the Supreme Court to include the deliberative process privilege, a privilege that says that the government doesn’t have to disclose materials that assisted decisionmakers in reaching a decision but do not actually reflect the final decision or the rationales relevant to the final decision but rather were preparatory documents to reaching that final decision.


Now, the specific document at issue in Sierra Club were created as part of a consultation under the Endangered Species Act. Now, under the ESA, federal agencies are generally required to consult with the Fish and Wildlife Service and with the National Marine Fisheries Service to determine whether their proposed activities may jeopardize the continued existence of species that are protected under the Endangered Species Act. At the end of this consultation, the Fisheries Service and the Fish and Wildlife Service are supposed to produce what’s called a biological opinion.


This is a document that includes the Agency’s assessment as to how its proposed project might affect endangered species. And it also provides alternatives, what the statute calls reasonable and proven alternatives, that the wildlife agencies think might be appropriate substitutes for the original proposed action. In Sierra Club, the particular consultation concerned a 2011 EPA proposed regulation under the Clean Water Act regulating water cooling apparatus for large industrial facilities.


Because these water cooling structures when they suck in water can harm aquatic organisms, some of which are protected under the ESA, the EPA sent its proposed rule to the Fish and Wildlife Service and to the Fisheries Service to get their input through this consultation process. By late December of 2013, the Services had prepared what looked like near-final draft biological opinions, and these documents concluded that EPA’s proposal was in itself in serious jeopardy because it was going to harm endangered species. But at the last minute, the Services decisionmakers decided, “We’re not going to send these drafts over to EPA. We need to do more work on them before we can share them in total with EPA.”


But shortly thereafter, EPA decided based upon excerpts of these draft opinions that had gone over already to EPA that it had better change its original proposal. And at that point, the draft opinions were set aside. EPA came up with a new water intake rule, and the Services produced new biological opinions concluding that the new revised rule was A-okay under the Endangered Species Act.


Now, shortly thereafter, Sierra Club and other environmental groups filed a lawsuit challenging that EPA rule. But they also filed a FOIA request wanting to get those original draft biological opinions saying, “Hey, we think these are pretty darn important because they seem to have had a significant effect on EPA’s decision to change the final version of its regulation. And we’d like to see those documents.” The government said, “No, we’re not going to turn them over because they’re deliberative. They were drafts of draft biological opinions. They never were finalized by the agencies. And therefore, we don’t have to provide them to you under FOIA.”


That is the issue that the Supreme Court then had to decide last week in Sierra Club -- were these documents subject to that FOIA exemption for deliberative process materials? I think you can analyze the majority opinion from Justice Barrett in two parts. One, it talks about sort of general principles to guide how lower courts should apply the deliberative process exemption under FOIA. And the second part, that talks about how those general principles applied in the unique context of these ESA consultations.


So as to the first point or the first set of issues on what are the general rules, Justice Barrett’s majority opinion essentially adopts and codifies an opinion by then Judge Kavanaugh on the D.C. Circuit concerning the same FOIA exemption -- that is the principle that a document is not final simply because nothing follows after it. Sometimes a proposal, quote, dies on the vine. So the Court is saying you cannot demand a document simply because it looks like it was the last in a series of documents. Rather, what you have to decide is whether that document is not just last but also whether it communicates or explains a policy on which the Agency actually has settled. So it’s not just last, but it’s also this is the relevant document or set of documents explaining what the Agency has done.


Now, the Court does emphasize though that this test is not a formal inquiry. It’s a functional inquiry, and the Court pretty clearly rejects -- the majority pretty clearly rejects the idea that an agency can get around the disclosure obligation under FOIA simply by stamping “draft” on documents. That’s not enough -- that in fact there has to be an analysis to whether are the agencies actually treating this document or portions of this document as, in fact, representing the final word? That’s really what should determine the ultimate analysis.


Now, as for the specific context here of biological opinions under the Endangered Species Act, I think it’s fair to say that the majority opinion essentially says that draft biological opinions are presumptively deliberative because they are drafts. Now, there’s some tension here, of course, with the idea that, well, you can’t just stamp “draft” on something and get a disclosure avoided. But nevertheless, I think that’s the thrust of the majority opinion.


These are, in fact, draft. They are designed to invite input from the other cooperating agencies. It is expected that there are going to be changes to these drafts before they are finalized. And those factors support the conclusion that we shouldn’t be surprised that draft biological opinions are pretty much going to be exempt more often than not.


Now, the Court does have a very important exception, you could say, or proviso in footnote 4 of the majority opinion where the Court says that, if the Services make clear that there are portions of the, quote/unquote, draft biological opinion that the Agencies are treating as final for which they’re not asking for input -- for which they’re essentially saying “This is how it’s going to be from here on out,” the Court then was willing to entertain the idea that that part of the draft biologic opinion could be disclosable. But the Court also concluded that there’s no help for Sierra Club here with that exception because the Court concluded based upon its review of the record that these were not even draft biological opinions. They were draft of draft biological opinions -- for two reasons, one, that in fact neither document had ever been formally signed off on by the relevant Agency decisionmaker.


And two, and perhaps more importantly, there were in fact declarations in the record submitted under penalty of perjury from these relevant government officials saying, “No, we really meant that, that there really needed to be more work done on these documents. That’s why we didn’t send them over to EPA. That’s why they weren’t final, and that’s why they should be considered deliberative.”


In reaching that conclusion in supporting the government’s decision not to disclose, the Court pretty soundly rejects Sierra Club’s test, which is something like an operative effects test -- that is that what we really should be looking at is do these documents have an impact? And we knew from the record that obviously these drafts of drafts, or however you want to call them, did have an impact on EPA because, once EPA got word of how things were coming down with the Service and the Fisheries Service, EPA changed course and decided to do a different regulation -- to amend the proposal. Justice Barrett’s majority opinion says that’s not a workable test because you could point to any number of staff memoranda or emails that maybe could have a but-for impact on how EPA might proceed with its rulemaking.


That isn’t what matters. Rather, what matters is did the relevant agency decisionmakers actually treat something as its final word? And again, the Court concluded here that the draft biological opinions here were not the Agency’s final word on anything, that they were in fact drafts of drafts.


So that in a nutshell is the Court’s decision, both with respect to the FOIA exemption generally for deliberative process materials as well as the specific application of that principle to the, again, unique context of consultations under the Endangered Species Act. With that, I’d like to hand things over again to Nancie to discuss the dissent’s response to this and some more policy questions about the role the deliberative process privilege plays in FOIA. And again, to remind everyone, Nancie is a founding partner of Marzulla Law in D.C., and she, as my practice, also focuses on litigating a number of environmental and constitutional issues in federal courts. Nancie?


Nancie Marzulla:  Thank you, Damien, and let me join you in thanking The Federalist Society for making this teleforum possible. This is an interesting case, and Damien has done an excellent job of summarizing the issues in the decision. But there are a number of loose threads that I think we ought to pull and see where they go.


The first thread I would draw your attention to is the fact that there were six amicus briefs filed in the case. There were briefs filed by a variety of organizations, some of whom authored the brief and other organizations which signed on to the brief. And all of these briefs were filed in support of Sierra Club. Not a single entity filed a brief in support of the government’s position in this case.


So let’s take a look at these amicus briefs. I put them generally into three categories. The first I would categorize as briefs filed by ACLU’s various chapters and similar organizations, the Electronic Privacy Information Center, and the Reporters’ Committee for Freedom of the Press and 28 media organizations.


Together, these organizations argued to the Court that the primary purpose of FOIA is to prevent the development of secret law. And so these briefs together championed the notion of government transparency, and they made some compelling points, not only going to the overarching purpose of FOIA. But they further pointed out that the overuse and abuse of the deliberative process privilege actually is undermining the purpose of FOIA.


And so they argued to the Court that they not abandon the function test. They didn’t adopt a test advocated for by Sierra Club. Rather, they argued that the Court apply a functional test that accounted for the purpose of the exemption the deliberative process at issue. And I think what is most telling here the role the particular Agency records play in that process and the contents of those records. So that’s the first group of amici.


The second group I would characterize as environmental groups. And these would include the brief filed by Center for Biological Diversity and Defenders of Wildlife and the Environmental Law and Policy Clinic at Harvard. Now, these briefs go into the nitty-gritty of the biological opinions themselves. In other words, they take up, so to speak, the gauntlet of looking at the role these particular records play in the decision-making process.


And they point to the fact, first of all, that a biological opinion is not a policy document. It’s not a policy decision making document. It’s a scientific factual-based document. And the Services—and they use that plural—that’s Fish and Wildlife Service and National Marine Fisheries Services -- they look at the Agency’s role in the consultation process.


This is Section 7 consultation under the Endangered Species Act. And that process requires the Agency to look at the science that backs Agency proposals. And they argue in their brief that the government’s approach to Exemption 5 under FOIA would deprive the public of crucial information regarding imperiled species that is generated in the Section 7 consultation process. And they further make the point -- and this is, I think, the most profound point they make is the fact that the biological opinion may be labeled a draft opinion. It does not lessen its impact.


That properly understood in the context of the ESA, the Endangered Species Act, biological opinions are not merely recommendations, but they carry real legal and practical significance. And the briefs go on to state, if a federal agency persists with an action that the Services have found will cause jeopardy—that is jeopardy to an endangered species—the action may be struck down as unlawful and may result in liability for take under the ESA of a listed species. So they argue pretty forcefully the context in which these biological opinions should be examined.


And then finally, we have an amicus brief filed by a group of organizations that I’ve worked over the years, and I might put them in the category of sound science pro-property rights organizations, the American Forrest Resource Council, the National Association of Homebuilders, NFIB, and American Farm Bureau. And these organizations argued that -- again, going back to the purpose of FOIA, that the very reason why we have a FOIA in the first place is to promote government accountability and an informed citizenry and that FOIA then accomplishes this objective by ensuring that the public has access to information regarding both what the government does and why the government does what it has undertaken. And therefore, they argue that courts not only have but they advocate that the courts should in this case should have narrowly construed the exemption to disclosure under FOIA.


So together, these amicus briefs really raise some compelling points that seem not to be fully grappled with in the decision. Altogether, they seem to be the groups that are making the point that the exemption should be construed in the context of the broader principle of limited government and government transparency. So rather than grappling head on with these points in the majority decision, what we see instead is a rather bloodless tightly reasoned, logical decision, and this is what is the most troubling to me. It’s devoid of any recognition of how the real-world works.


Now, surprisingly, in reading the dissenting decision, which Damien mentioned, we’ve got a 7 to 2 decision. We have two dissenting justices then. Justice Breyer authored the dissent, and it’s joined by Justice Sotomayor. And if you read anything about this Sierra Club decision, the one thing you know is that normally the first decision written by a new justice on the Supreme Court is expected to be a majority decision.


Well, that did not happen here. We have two justices dissenting. And they focus precisely on the points made in the amicus briefs. They point out that you have to look at the context. In essence, they sort of harken to the functional test that accounts not only for the purpose of the exemption but the particular role -- or the role the particular agency records play in that process and the context of those records.


And Justice Breyer really goes into great detail outlining how the biological opinion works and the role that it plays in agency consultation under Section 7. And just to give you a sense of flavor of the detail he goes into, he states that transmitting the draft biological opinion to the EPA simply allows the EPA to make its choice before a final biological opinion issues. And he goes on to point out the fact that it’s the draft BO, not the final BO—that’s the biological opinion—is the document that informs the EPA of the Services’ conclusions about jeopardy and sets forth the alternatives. And then, it’s those alternatives and the conclusion, which is exactly what happened here, by the way, triggers within EPA the process of deciding what to do with those conclusions.


So here we had the Services indicating they set forth their reasonable and prudent alternatives and indicated that they were likely to find a -- reach a jeopardy conclusion. And at the end of the day, EPA changed its proposal, and the Services then were able to issue a non-jeopardy opinion, which allowed the project to go forward, by the way. Without the non-jeopardy opinion, you do not go forward, or else you run the risk of running afoul -- you will run afoul of the Endangered Species Act, which has draconian civil and criminal penalties -- strict liability penalties I might also add.


I think the most telling point that Justice Breyer makes in his dissenting opinion is that he states, “Amici tell us without contradiction that out of 6,829 formal consultations between 2008 and 2015 the FWS issued a final biological opinion finding jeopardy only twice.” So I think we see that there’s some real tension here and some questions that remain unanswered in the majority decision. And I think it leaves us wanting more in the analysis. So with that, Damien, I don’t know if you have any additional points, but I am ready to entertain questions.


Damien Schiff:  Yes, thanks, Nancie. I think before we go to questions I just wanted to -- first of all, I agree with your analysis of the amici and the dissent but also to emphasize that there are bases on which both opinions do agree. And I think perhaps the most significant point of agreement is that they both agree that it should be a functional test and that the government can’t get around disclosure by pretextually or superficially considering something to be a draft. But beyond that, I do think that you’re right, Nancie, that the majority seems to really sort of miss the real context of particularly the consultation process and how these, quote/unquote, draft documents routinely play a significant role in how the administrative process plays out. But anyway, yes, I think having some questions would be a great idea.


Greg Walsh:  Perfect. So let’s go to audience questions. We will now go to the first caller. Caller from area code -- there we go.


Caller 1:  Good afternoon. I was wondering what you think about how every court basically disregarded every standard in Rule 56 in a FOIA case. And what I mean by that is that in this case, and in most FOIA cases, the district court purported rule on summary judgement, but it just didn’t even mention Rule 56. The Ninth Circuit noted that it was reviewing summary judgement, but it didn’t mention Rule 56. And the Supreme Court didn’t address anything about Rule 56.


Nancie Marzulla:  Well, you’re certainly correct, caller. This was not a summary judgement analysis. The Supreme Court has the luxury of focusing on the issues that are of interest to it. And obviously, this issue caught their attention. They felt like they saw something they wanted to address in the decision. And that was entirely the focus of the decision. And Rule 56, I think, didn’t really play a role in the analysis.


Damien Schiff:  You know, it is interesting to point out, though, that the majority did concede that on remand the district court can try to segregate out of these documents material that is not deliberative. And I think that that might be something of a concession to one of the amicus briefs that Nancie was mentioning about how typically these documents, they’re not really -- biological opinions are not really policy documents so much as they are just simply scientific analyses and data collection. And perhaps, there may be some of that material that Sierra Club -- well, they should be able to get, although not by virtue of any sort of summary judgement standard.


Greg Walsh:  Perfect. Let’s go to the next caller.


Caller 2:  Hi, I wanted to know if you think the fact specific analysis is going to make it easier or harder to determine whether a document applies to the deliberative process privilege.


Damien Schiff:  Well, that’s a -- I’m sorry, Nancie, did you want to go first?


Nancie Marzulla:  No, no. Go ahead.


Damien Schiff:  I was just going to say that’s an excellent question. On its face, one would think that there is going to be some sort of fact-bound determination that a court in camera will have to make, especially where there’s a contention that something that is ostensibly offered as draft is in fact being treated in practice by the Agency as final. However, I’m not so sure how in depth that review’s going to be because here you had the majority saying, even though some of these documents look awfully final, they weren’t actually signed off. And we have this general statement in the record from the decisionmaker saying, “Oh, more work needed to be done.”


But there was actually no engagement in the majority opinion in response to Sierra Club’s point that, well, wait a second, they may have said more work needed to be done. But they weren’t talking about the whole document. They were only talking about portions of the document. And in fact, there was a lot of it that was not going to be changed. And that should be considered final and not exempt.


Even though that argument was made to the Court, the majority opinion really kind of brushes it aside and just takes the declarations from the governing decisionmakers at face value, even though they’re very broadly drafted. And I think that might be in part a function of just this general presumption of regularity and good faith on the part of government actors. But I think it does foretell that, even though this is ostensibly a functional test with the majority, I think in practice you’re probably going to have to have a pretty good showing on the part of the challenger to demonstrate that something is being treated as final despite a label to the contrary.


Nancie Marzulla:  Yes, I fully agree with Damien here. I don’t see that this decision helps clarify or provide discrete signposts or guideposts to the functionality analysis. I note in particular at one point the majority refers to the Court determining if there was a charade underway. And I thought, oh, for heaven’s sake, that’s all we need is to have to be conjuring up parlor games in the context of a court test or a test that the agency and practitioners are going to be applying. So I think we are going to have to grapple document by document and realize that in one context a document may be privileged, and in another context the same document may not be privileged. So it is going to be a very factually intensive inquiry.


Greg Walsh:  We’ll now go to the next caller.


Jonathan Wood:  Hi, this is Jonathan Wood with Pacific Legal Foundation. I have a question about something Justice Breyer raised in dissent. He said that the exact same document would be outside the privilege if the consultation was over a private permit. So a private party was also involved in the dialogue about the draft biological opinion. I’m wondering in what sense does that distinction make in light of the purposes of deliberative process privilege. Why is a document any less deliberative or any less final just depending on who outside the agency is communicated with?


Nancie Marzulla:  I think you’ve raised an important point. I remember sort of scratching my head and puzzling over that one as well. I guess it’s a point that he and Sotomayor considered to be compelling. I less so and apparently you as well. That’s why I didn’t mention it in my discussion because I didn’t see how it really helped the analysis. But maybe I’ve missed something. Maybe, Damien, you can shed some light on that point.


Damien Schiff:  Well, you know, I think what he was trying to get at is one of the traditional justifications for the deliberative process of privilege. That is one I think, in fact, the majority opinion adverts to, that we want to encourage full and free discussion among government decisionmakers. And so they won’t engage in that free discussion if they’re concerned that their statements may become public knowledge.


And I think Justice Breyer’s point is that, well, we know for at least some biological opinions they’re always going to be made public because the regulations require that the drafts be provided to the private applicant involved in the process. And once they’re provided outside of the government, then the privilege is gone. But I mean, the reality is -- regardless of the private applicant component, the reality is that I don’t think there’s any empirical basis to say that you’re going to thwart full discussion just because these documents are subject to disclosure.


First of all, you have government employees and decisionmakers all the time who are engaging in telephone conversations, in person meetings. None of that is recorded. None of that is subject to disclosure.


Moreover, it’s always been the case that the government decisionmaker can make available a document that otherwise would be subject to this exemption. So if you’re a low-level staffer, you have absolutely no idea whether what you’re writing is going to be definitively subject to this deliberative process privilege because your boss might say, “Well, you know, I’m going to disclose it anyway because I think it’s important for whatever reason.” So I just don’t think that, regardless of Justice Breyer’s dissent, I just don’t think that the policy basis for this privilege makes a whole lot of sense. And I think that that lack of justification is really highlighted in this case with the consultation process.


Nancie Marzulla:  Right. You just reminded me, Damien, as well. I’m glad you mentioned that. I think what Breyer’s trying to say is that -- and I think this is the point you were making is that, well, because the decisionmakers know that the document is going to be made public, disclosing it now and holding that it’s not exempt. There was no chilling that occurred. It’s not going to increase any chilling of free and frank discussion regarding decisions that are being made because it’s going to be made public in the permitting process. Again, I’m just not sure how far that advances the analysis. I’m echoing what Damien said.


Greg Walsh:  Perfect. Well, let’s go to our next caller.


Caller 4:  Yes, my question goes to a parallel area of deliberative privilege, and that is in the context of litigation with the federal government in which the government asserts a deliberative privilege in the context of discovery proceedings or even administrative records. How might this decision impact the application of deliberative process privilege in litigation? And specifically, how might it affect the government’s decision to withhold evidence that may be contrary to its position in litigation and simply voluntarily disclose only the parts that support the government’s position in the case?


Nancie Marzulla:  Well, I think there’s no question that this decision is going to be used under instances where the privilege is asserted under the federal rules of civil procedure in litigation in which this privilege is raised. The government undoubtedly will take this decision and run with it. We see this time and again where there’s an opportunity to withhold documents from production, and this forms a basis or rationale for, if nothing else, withholding the documents and requiring that there be litigation over whether the privilege really applies.


And it’s such a fact-based test that it invites litigation already -- that I can see page by page in camera going through documents fighting over whether the privilege applies or not. So I think that is just one additional result from this decision. Perhaps anticipated, again, by the majority in the actual decision.


Damien Schiff:  I agree with Nancie on that, and I would just note that one of the ironies of FOIA is that the privilege, as codified, in a sense under FOIA is actually, in a sense, I think, stronger than it is in litigation. In litigation, my understanding is that you can overcome the privilege on a showing of need and that there isn’t really anything like that under FOIA. That if the privilege otherwise applies, then the document does not have to be disclosed. But I do agree with Nancie’s analysis as to how the decision may affect once in fact the privilege is invoked -- how it’s going to play out in litigation.


Greg Walsh:  Let’s go to the next caller.


Caller 5:  Yes, thanks very much. Just returning to the penultimate question -- and I haven’t read either the majority or the dissent on this. But with respect to the excludability of matters involving a private party, I would think that that would be covered by Privacy Act considerations. I don’t know if Justice Breyer addressed that in his opinion or just was an oversight. Whether or not it appropriately would be excluded under FOIA, it seems like it’d be moot under Privacy Act considerations.


Nancie Marzulla:  I don’t recall that Justice Breyer addressed the Privacy Act. I’m pretty sure he didn’t. Damien, do you have a different recollection?


Damien Schiff:  No, that’s mine as well. And I think his point in making that point was simply to show that because the exemption is deemed to have been lost once a document is released to anybody in the public. That supports his view, well, you have at least a subset of these documents of biological opinions that, by regulations, are going to be released to the public anyway. And that suggests that as a category these documents probably don’t need to be subject to the exemption.


Caller 5:  Thank you. I guess perhaps that reasoning will be sort of seeking a reductor ad absurdum based on that line of reasoning that that might be true if FOIA had been passed and the Privacy Act hadn’t been. But I’m just sort of curious if he’s setting up a strawman there in trying to point out an apparent inconsistency when it would otherwise be exempt. But thank you very much.


Damien Schiff:  It could be that, too. It could be that personal information would be redacted anyway so that you could satisfy whatever privacy issues are presented by disclosing it generally to the public but at the same time satisfy the general FOIA obligation to make public otherwise disclosable information.


Nancie Marzulla:  Yeah. I am sure that would be the case. They’re not going to be releasing confidential information such as social security numbers and so forth. I think Breyer even went to that point in the first place -- was he was responding to the majority decision which emphasized that the very purpose for the privilege is to encourage this free and frank and open government decision making. We don’t want government decisionmakers chilled in their ability to talk about and analysis decisions they have to make.


And so I think he was responding by saying, “Well, look, this exemption may not apply anyway because, if there’s a permit application issue that you’ve got to address, then the documents will be disclosed anyway. So the disclosure will occur.” So I think it didn’t go much farther than that, his reasoning for discussing that.


Greg Walsh:  Well, it doesn’t look like we have any more questions in the queue. Damien, Nancie, do you have any concluding thoughts?


Nancie Marzulla:  I don’t but I once again want to take the opportunity to thank you for being invited to participate in this. I think it’s really a fascinating case, and I’ve enjoyed participating.


Damien Schiff:  Likewise, and I also think this is one of those interesting cases whereby you do have, as Nancie pointed out earlier, an interesting alignment of groups. You have both sort of good government groups, environmental groups, property rights, sort of industry groups all sort of aligned against the government. And yet, the government at least wins arguably just a narrow win but still wins 7 to 2. So a very interesting case and appreciate the opportunity to talk about it today with Nancie and on FedSoc.


Greg Walsh:  Perfect. On behalf of The Federalist Society, I want to thank our experts for the benefit of their valuable time and expertise today, and I want to thank our audience for calling in and participating. We welcome listener feedback by email at [email protected]. As always, keep an eye out on our website and your email inbox for announcements about upcoming Teleforum calls and virtual events. Thank you all for joining us today. We are adjourned.




Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at