WASHINGTON – In her first opinion in a debated case, Justice Amy Coney Barrett, who joined the Supreme Court in October, dismissed a Freedom of Information Act request from an environmental group for documents on damage to species endangered.
Writing for the majority in the 7-2 decision, Judge Barrett said the records were protected by an exemption to the law that protects documents that would disclose deliberations within an agency before making a final decision. The exemption applied, she wrote, even to documents reflecting the agencies’ final words on a given topic.
“A document is not final just because nothing else follows it,” she wrote. “Sometimes a proposition dies on the vine.”
“It happens in deliberations – some ideas get thrown out or just languish,” she wrote. “Yet documents dealing with such dead-end ideas can hardly be described as reflecting the agency’s chosen path. What matters, then, is not whether a document is the last in line, but whether it communicates a policy that the agency has set its sights on. “
The dispute began in 2011, when the Environmental Protection Agency proposed new regulations to govern cooling water intake structures, which can harm aquatic life. Under the Endangered Species Act, the agency was required to consult with two other federal government units – the US Fish and Wildlife Service and the National Marine Fisheries Service – to assess and address the damage the regulation would do. .
The services prepared draft documents indicating that the proposed regulations would not do enough to protect endangered species and, apparently as a result, the EPA’s final regulations were stricter than the one it had originally proposed.
The Sierra Club filed a lawsuit to obtain the documents under the Freedom of Information Act, and it won in the United States Court of Appeals for the Ninth Circuit in San Francisco. A divided panel of three judges ruled that the draft opinions represented the final conclusions of the services and should therefore be disclosed.
Reversing the ruling, Judge Barrett wrote that it was not enough that the projects “turned out to be the agencies’ last word on a proposal’s potential threat to endangered species.”
Officials in federal agencies must be free to deliberate out of public view, she wrote. Citing an earlier ruling, she said agencies should not be “forced to operate in an aquarium”.
The Freedom of Information Act’s “deliberative process privilege”, she wrote, was intended to protect frank discussions and allay fears that tentative positions would be uncovered in later litigation or presented in legal proceedings. press reports. “To encourage openness, which improves agency decision-making, privilege mitigates the deterrent effect that accompanies the prospect of disclosure,” Judge Barrett wrote.
She acknowledged that “this rationale does not apply, of course, to documents that embody a final decision, because once a decision has been made, deliberations take place.” But she wrote that the latest version of a document didn’t always reflect a final decision.
The draft opinions requested by the Sierra Club, she wrote, were part of a consultation with the Environmental Protection Agency, not statements of final service positions.
The case was argued on November 2, which was Judge Barrett’s first day on the bench. She expressed concern at the time that government officials might stamp the documents as “drafts” to avoid having to release them.
She answered that concern in her opinion. “If the evidence establishes that an agency has concealed a functionally final decision in draft form,” she wrote, “the privilege of the deliberation process will not apply. The services, however, did not indulge in such a farce here. “
In dissent, Judge Stephen G. Breyer, accompanied by Judge Sonia Sotomayor, wrote that drafts should be submitted for disclosure if they are indeed final.
“The mere possibility of future change does not alter the purpose or final effect of the original document,” Justice Breyer wrote.
He added that the two projects at issue in the case, US Fish and Wildlife Service v. Sierra Club, No. 19-547, had different characteristics.
“National Marine Fisheries Service documents contain highlighting and editing marks reflecting work in progress,” Judge Breyer wrote. “But the Fish and Wildlife Service documents do not, and the record indicates they may have been complete without a final signature.”