Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: The Supreme Court Decides Significant Administrative Law Case Preventing Disclosure of Agency Deliberations
The following is an excerpt:
The Court decided two cases today, one of which is an administrative law case that may prove consequential, not just in the field of environmental law, in which it is grounded, but in other areas of the law, for example, health care, in which prospective rules undergo repeated drafts and modifications. United States Fish and Wildlife Service v. Sierra Club, the maiden opinion written by the newest Justice, Amy Coney Barrett, and joined by all of her colleagues except for Justices Breyer and Sotomayor, concerned an Environmental Protection Agency (EPA) rule regarding structures used to cool industrial equipment. The intra-governmental approval process for what became the ultimate rule was complicated, and there were, as a result, several drafts that might have been material in changing minds or otherwise affecting what became the final rule here. The Sierra Club submitted requests under the Freedom of Information Act (FOIA) for records related to the subsidiary agency services consultations with the EPA. The services invoked the FOIA's deliberative process privilege (see 5 U. S. C. §552(b)) to prevent disclosure of the draft biological opinions analyzing the EPA’s proposed rule. The Sierra Club sued to obtain these withheld documents, and the Ninth Circuit held that the draft biological opinions were not privileged because, even though labeled as drafts, the draft opinions represented the services’ final opinion. The Supreme Court reversed, holding that the deliberative process privilege protects from disclosure the in-house draft biological opinions that are both pre-decisional and deliberative, even if the drafts reflect the agencies’ last views about a proposal. The majority reiterated that the FOIA's exception from disclosure embodied in the deliberative process privilege shields from disclosure documents reflecting advisory opinions and deliberations comprising the process by which the government formulates decisions and policies. See NLRB v. Sears, Roebuck & Co., 421 U. S. 132 (1975).
Click here to read the full post and more on SCOTUS Today.
- Member of the Firm