The court advocates protection of the privileges of the process of reviewing FOIA’s transparency goals-SCOTUSblog


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Opinion analysis
The graph shows the agreement of 7 votes to 2 votes (Roberts, Thomas, Alito, Kagan, Gorch, Cavano Barrett have the majority; Breyer and Sotomayor disagree)

Although the main goal of the Freedom of Information Act is to increase the transparency of government decision-making, the Supreme Court ruled by a 7-to-2 ruling on Thursday that public policies that promote institutions to frankly exercise their expertise in the initial review of institutions may be better than Such behavior. Transparency and accountability issues.Judge Amy Coney Barrett published an 11-page article View, This is her first majority opinion since she joined the court in October. Considering this situation, this is a natural debut, U.S. Fish and Wildlife Service v. Sierra Club, used to be The first oral argument What Barrett heard after joining the bench

The case raised the following questions: whether the FOIA’s review process privileges are exempt from disclosure during the statutory inter-agency consultation process between the US Fish and Wildlife Service and the National Oceanic Fisheries Service (hereinafter collectively referred to as the “service”) and the Environmental Protection Agency Some files.

For the sake of transparency, FOIA grants the public the right to access federal records, but exempts the disclosure of certain records, including those that are not easily found in civil litigation. These records include records that belong to the privilege of the review process, which promotes the frankness of agency decisions by preventing “decision-making” and “deliberative” disclosure documents.

In this case, what is at issue is the record prepared by the service agency during the inter-agency consultation process in accordance with Section 7 of the Endangered Species Act, which prohibits federal agencies from taking actions to harm the listed species or their habitats. continue living. In 2011, the EPA proposed regulations on a structure called a cooling water inlet, which draws large amounts of water from the ocean or other bodies of water to cool industrial equipment. The agency consulted with the service agency about the risk of “hazards” caused by the regulations, because such intake structures may cause harm to aquatic organisms. The service staff completed the draft biological opinion in December 2013, believing that the EPA’s proposed regulations would harm the listed species, and determined a “reasonable and prudent alternative.” Negotiations continue, and in 2014, EPA sent the revised rules to the service department. These service agencies issued final biological opinions, deeming “no harm”, and EPA issued final regulations in the same year.

Then, Sierra Club submitted a FOIA request for the December 2013 biological opinion and other documents. The Federal District Court ruled that the documents were not protected, and the U.S. Court of Appeals for the Ninth Circuit partially agreed to determine that certain documents (including the December 2013 biological insights) were not privileged.

Chief Justice John Roberts (John Roberts) and Justice Clarence Thomas (Clarence Thomas), Samuel Alito (Samuel Alito), Elena Kagan (Elena Kagan), Neil Gora Qi (Neil Gorsuch) and Brett Kavanaugh (Brett Kavanaugh) joined with most of them to overthrow Barrett in the 9th Tour. Not surprisingly, the court accepted the argument that the “dead on the vine” proposal was still pre-determined and considered because “[w]What matters… is not whether the document is ranked last, but whether the document conveys the policy that the agency has resolved. Barrett wrote that the court should consider “whether the agency considers this document as its final opinion on the matter” and further stipulate that the document will have “actual operational effects” and will not make the agency’s decision-makers “Freedom to change its decision.” Mind.”

Most people rejected the Sierra Club’s argument that the 2013 biological opinions had a real impact on the US Environmental Protection Agency. Barrett emphasized that in order for documents to not have the privilege of deliberation procedures, documents must have legal consequences, not just actual consequences. This is a distinction she put forward in her oral debate. Barrett described the final biological view as if (if (but only)) meets the prescribed conditions, “changes” the legal system followed by the action agency and authorizes it to “act to have an impact on endangered species, then Has legal consequences”. “” On the other hand, she described the draft biological opinion as only Actual Consequences if the agent “adopts”[s] An alternative method to avoid harm to endangered species. “She believes that “many documents without a draft biological opinion may prompt the agency to change its rules”, such as emails or memos, which obviously will not be considered as the agency’s final decision.

Barrett went on to explain that these services did not consider the 2013 biological opinions to be final, and argued that the documents were actually draft -“It’s a far cry from the’organizational decisions that have been made.'” She conducted a series of demonstrations on the services provided. The decision makers did not approve these documents, did not send them to the EPA, and determined that “more work needs to be done.” Barrett, who is satisfied with these factors, concluded: “The review process should proceed in the way it should: The service department and the EPA negotiated how the rule will affect aquatic wildlife until the EPA decides that it will not harm any protected species. The way.”

Barrett seems to have stated in oral arguments that she is more inclined to adopt clear standards than fact-intensive investigations. However, in order to address the concern that officials of the relevant agency may mark the document as a “draft” to avoid disclosure, she wrote: “If the evidence shows that the agency hides the final functional decision in the form of a draft, the review procedure privilege will not apply.” However, in the current situation, she wrote that the service “is not involved in this disguise.”

Interestingly, Barrett did not explain in detail how the publication of the draft biological opinion (if any) might prevent the agency from being candid in this case. In view of its highest concern for the review of the space of protection institutions, the court seems to have rejected any need to clearly demonstrate the potential chilling effect of such review.

The court overturned the Ninth Circuit and returned to the District Court to determine whether any part of the document can be separated from the privileged part.

Judge Stephen Breyer and Judge Sonia Sotomayor filed an objection together. He presented five reasons why the biological insights in 2013 reflected the agency’s final decision. First, Breyer believes, “[t]It is only the possibility of future changes that will not change the finality or final effect of the original document. He pointed out some cases in which the service department issued the final biological opinion, but then withdrew the opinion and issued a new biological opinion.

Secondly, Breyer emphasized that the final biological opinions and draft opinions “play the same role in administrative procedures.” He pointed out that the only difference is that the service organization must provide the draft biological opinion to EPA before issuing the final biological opinion. Breyer then pointed out the difference that most people have concealed-consultations on the draft biological opinions transmitted are intended to determine reasonable alternatives to the EPA’s initial proposed actions. Is not Change the environmental analysis of the service.The purpose of providing a draft biological opinion to EPA is to “simply [to] allow[] EPA will make a choice before the final biological opinion is published. “

Third, Breyer pointed out that “the process that triggers the decision to take measures within the EPA is a draft biological opinion, not a final opinion”. [the services’] in conclusion. Breyer mentioned how unusual it is that the service releases final biological opinions under threat-in about 7 years, only twice were conducted twice, during which more than 6,800 formal consultations were conducted.

Fourth, Breyer argues that public policies that encourage public participation will not be compromised by allowing disclosure. The service and even the EPA usually open the draft biological opinion to the public. If there are the following requirements, you must do so: private applicant. Therefore, the service personnel understand that the draft of the biological opinion can be published. Breyer also suggested that this discrepancy between the disclosure requirements of private and proxy applicants would create unnecessary anomalies.

Finally, Breyer argued that once the draft opinion has been reviewed, the regulatory requirements for the final biological opinion cannot be released, and that the restriction on the EPA’s available alternatives to the draft biological opinion constitutes not only actual consequences, but also law. as a result of.

Breyer summarized a fact-intensive question, that is, whether some of the documents involved are draft biological opinions or draft biological opinions still exist because some of them contain “highlighting and editing marks.” If the court determines that certain documents are drafts, he will return to the 9th Circuit to make this ruling and conduct a segregation analysis.

For advocates of open government, most of the features of the service consultation and biological opinion release process may be worrying. Most people seem to imply that only when an agency decides to take a risk without changing its proposed actions can it openly discover dangerous biological views, or seek rare exemptions from cabinet-level committees. Therefore, this decision may make government decisions more immune to public scrutiny and restrict public participation. On the other hand, the court will undoubtedly open the door so that in future cases, whether the draft document is “functionally final” will be questioned on specific facts. In the retrial of the case, it confirmed that even if the document is privileged, the federal agency must publish any factual, non-negotiable information in any protected document.


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