Sierra Club submitted a Freedom of Information Act (FOIA) request seeking documents created by the Fish & Wildlife Service and the Marine Fisheries Service in the course of formal consultation with EPA over an EPA regulation concerning power plant cooling water intakes. The Services had concluded that the regulation would jeopardize species protected under the Endangered Species Act and prepared biological opinions to that effect, which would require EPA either to make changes to the rule or obtain a waiver of the Act’s requirements. The Services finalized their opinions except for affixing signatures to them and sent portions of the opinions containing the determination to EPA. EPA decided to make the required changes to the rule, and once it had done so, the Services concluded that the rule as revised would not jeopardize endangered species.
The Services released some records responsive to Sierra Club’s FOIA request but withheld others, including the opinions that had prompted the revisions to the rule. For those documents, the government denied the request and invoked exemption 5, claiming that the documents were protected from disclosure by the deliberative process privilege. Sierra Club sued, seeking release of sixteen of the withheld documents. The district court agreed that eleven documents and part of another were not exempt, and the Services appealed. On appeal, the Ninth Circuit held that the deliberative process privilege did not apply because the Services’ opinions reflected their final decision on the rule that EPA had sought to promulgate. The court also held that the opinions did not reveal information about the Services’ deliberations.
The Services then filed a petition for certiorari, arguing that because the opinions were unsigned and labeled “drafts” they must be predecisional and deliberative. The Court granted the petition. Public Citizen is serving as co-counsel for Sierra Club in the Supreme Court.