Public access to agency drafts
United States Fish and Wildlife Ser v. v. Sierra Club
In brief
The Supreme Court said qualifying draft biological opinions can be protected from FOIA disclosure, overturned the Ninth Circuit's ruling (reversed it), and sent the case back to the lower court (remanded it).
- Where it stands
- Decided
Decided 7-2 · July 8, 2021 · Opinion by Justice Barrett
- What it’s about
- The Supreme Court decided that the Freedom of Information Act’s deliberative-process privilege (protection for unfinished advice used in agency decision-making) can shield draft biological opinions prepared by the U.S.
- Who it affects
- The decision lets agencies withhold under FOIA drafts prepared before a decision and used in internal discussion, even when they state the agencies' latest views. The Ninth Circuit must now apply that rule to the disputed records.
Summary: written with AI from the case record.
What it's about
Fish and Wildlife Service and National Marine Fisheries Service before a final decision, even when they express the agencies’ latest views. The Court overturned the Ninth Circuit’s ruling in Sierra Club’s records dispute and sent the case back to the lower court (reversed and remanded) for further proceedings.
The case illustrates how the Freedom of Information Act balances public access to agency records against protecting candid, unfinished government advice.
Question presented
Whether Exemption 5 of the Freedom of Information Act, 5 U.S.C. 552(b)(5) (2012), by incorporating the deliberative process privilege, protects against compelled disclosure a federal agency's draft documents that were prepared as part of a formal interagency consultation process under Section 7 of the Endangered Species Act of 1973, 16 U.S.C. 1536, and that concerned a proposed agency action that was later modified in the consultation process.
What the Court decided
Holding
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. 925 F. 3d 1000, reversed and remanded.
- Result
- Reversed
The vote
From the opinions
“But what about the second kind of document, a Draft Biological Opinion? Does it normally set forth a “final” Services view, or is it normally a “deliberative” document?”
What's next
The Ninth Circuit will apply the Supreme Court's rule to the disputed drafts in further proceedings. It must determine which records meet the requirements for FOIA protection.
Documents
Docket activity
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AI analysis generated: Impact Analysis
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Brief added: Questions Presented
More questions
- What did the Supreme Court decide in Sierra Club?
- The Court overturned the Ninth Circuit's ruling (reversed it), decided qualifying drafts can be protected under FOIA, and sent the case back (remanded it).
- What draft records can the agencies withhold under FOIA?
- It protects in-house drafts that are predecisional (before a decision) and deliberative (part of agency discussion), even if they show the agencies' latest views.
- Did the Court say every draft biological opinion is protected?
- No. It limited protection to drafts made before a decision and used in internal agency discussion.
- How did the justices split in Sierra Club?
- The vote was 7-2. Justice Barrett wrote the opinion, and Justice Breyer wrote a dissent (opinion by justices who disagreed); Justice Sotomayor signed on to it.
- What happens next in the Sierra Club case?
- The Ninth Circuit will apply the Supreme Court's rule to the disputed drafts in further proceedings and determine which records meet its requirements.
Sources
Primary materials plus reporting. Best-effort analysis: this explainer relies on a mix of primary materials and trusted secondary sources. Official filings and opinions remain authoritative.