Before issuing a proposed rule regarding cooling water intake structures, the Environmental Protection Agency (EPA) sent its draft rule to the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) for review and consultation. Staff members at NMFS and FWS reviewed the draft rule and advised the EPA that its draft rule would likely jeopardize certain species. After continued consultation with these two agencies, the EPA sent a revised proposed rule in March 2014 that addressed the NMFS and FWS concerns, and the agencies subsequently issued a joint final biological opinion and the EPA issued its final rule on the same day.
Later, the Sierra Club (an environmental group) submitted a FOIA request seeking records related to the two agencies’ consultations with the EPA. The agencies denied the request, arguing that the draft biological opinions analyzing the EPA’s 2013 proposed rule were exempt under the federal FOIA’s “deliberative process privilege.” After the Sierra Club sued to obtain the withheld documents, the Ninth Circuit Court of Appeals concluded that the draft biological opinions represented the agencies’ final opinion regarding the EPA’s 2013 proposed rule and ordered release of the requested documents. The agencies appealed to the U.S. Supreme Court.
In United States Fish and Wildlife Service v. Sierra Club, Inc., the U.S. Supreme Court reversed the Ninth Circuit and concluded that the FOIA’s deliberative process privilege protects the in-house draft biological opinions from disclosure because the documents were both pre-decisional and deliberative.
The Court clarified that the privilege distinguishes between pre-decisional, deliberative documents, which are exempt from disclosure, and documents reflecting a final agency decision and the reasons supporting it, which are not. Here, even if the drafts reflected the agencies’ last views about a proposal, the draft opinions reflected preliminary views—not final decisions—about the EPA’s proposed 2013 rule. The Court noted that a document does not represent an agency’s final decision solely because nothing follows it. Instead, what matters is whether (1) the document communicates a settled policy of the agency; (2) the agency treats the document as its final position and (3) the agency concludes the deliberative process by which governmental decisions and policies are formulated, giving the document “real operative effect.” Here, the Court found that the agencies’ draft opinions were subject to change and had no direct legal consequences. In fact, the decisionmakers at the agencies had neither approved the drafts nor had they sent them to the EPA. In short, even though the drafts may have had the practical effect of provoking EPA to revise its rule, the deliberative process privilege still applied because the agencies themselves did not treat the draft opinions as final.
Although this case involved interpretations of the federal FOIA statute and not the Illinois FOIA, it does offer some guidance on the “draft document” or “deliberative process” exemption which is in both the federal and Illinois FOIA statutes.