Justice Amy Coney Barrett pens first majority Supreme Court opinion in FOIA dispute

[Leroy N. Soetoro]

https://www.cbsnews.com/news/amy-coney-barrett-supreme-court-majority-
opinion-foia-dispute/

Washington — The Supreme Court on Thursday shielded draft documents from a
pair of federal agencies from disclosure under a widely used federal
public records law, with Justice Amy Coney Barrett authoring her first
majority opinion since joining the high court in October.

The Supreme Court ruled 7-2 in favor of the U.S. Fish and Wildlife
Services and National Marine Fisheries Service in their dispute with the
Sierra Club, which sought records related to the services' consultations
with the Environmental Protection Agency (EPA) under the Freedom of
Information Act (FOIA). Justices Stephen Breyer and Sonia Sotomayor
dissented.

The legal battle stems from a rule the EPA proposed in 2011 regarding
"environmental water intake structures," which are used to cool industrial
equipment. The agency consulted with the Fish and Wildlife Service and
National Marine Fisheries Service before proceeding with its measure, as
marine wildlife can become trapped in the structures and die.

The two services issued draft "biological opinions" in late 2013 in
response to the proposed rule, which found it was likely to jeopardize
certain species, though the documents were never sent to the EPA. The
following year, in March 2014, the EPA sent another proposed rule that
differed from the earlier 2013 version.

In response to the 2014 proposed rule, the services issued a final "no
jeopardy" biological opinion, finding the revised rule was unlikely to
harm protected species. The EPA then issued its final rule.

The Sierra Club submitted requests under the Freedom of Information Act
for records related to the services' consultations with the EPA. But the
services invoked a FOIA exemption that protects "inter-agency or intra-
agency memorandums or letters that would not be available by law to a
party other than an agency in litigation with the agency," and declined to
turn over the draft biological opinions that analyzed the 2013 proposed
rule from the EPA.

The exemption used by the services lists privileges afforded to federal
agencies during civil litigation, including the "deliberative process
privilege."

The Sierra Club then sued to obtain the documents, and the U.S. 9th
Circuit Court of Appeals found the draft biological opinions were not
privileged.

But the Supreme Court reversed the lower court's decision, finding the
deliberative process privilege shields the draft opinions because they
reflect a preliminary review about the proposed, not final, rule.

"It is true, as Sierra Club emphasizes, that the staff recommendations
proved to be the last word within the Services about the 2013 version of
the EPA's proposed rule," Barrett wrote in her 11-page opinion. "But that
does not change our analysis. The recommendations were not last because
they were final; they were last because they died on the vine."

The staff recommendations, she wrote for the majority, were "part of a
deliberative process that worked as it should have."

"The deliberative process privilege protects the draft biological opinions
from disclosure because they are both predecisional and deliberative," the
court found.

The opinion from Barrett is her first for a majority of the Supreme Court.
In a dispute involving California's restrictions on indoor worship
services to mitigate the spread of the coronavirus, Barrett authored a
concurring opinion, in which she was joined by Justice Brett Kavanaugh.

Barrett was appointed to the Supreme Court by former President Donald
Trump in October following the death of Justice Ruth Bader Ginsburg. Her
nomination was controversial, as the vacancy on the high court came just
weeks before the 2020 presidential election.

Democrats contended, as Republicans did in 2016 after the death of Justice
Antonin Scalia, that the voters should be able to choose the president who
would fill the seat. But the GOP-led Senate charged ahead with Barrett's
nomination, confirming her to the Supreme Court a week before Election
Day.

First published on March 4, 2021 / 11:17 AM

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