Justices Pick Apart Draft Status in Public-Access Fight

The doors to the U.S. Supreme Court are seen on Sept. 21, draped in black to mark the death of Associate Justice Ruth Bader Ginsburg. (Photograph by Fred Schilling, Collection of the Supreme Court of the United States, via Courthouse News)

WASHINGTON (CN) — The U.S. Supreme Court dove in Monday to debate over when the public has the right to access secret government documents that could illuminate the rationale behind endangered species protections.

But the Freedom of Information Act tangle was notable for another reason as it also marked the debut on the bench of the newly confirmed Justice Amy Coney Barrett.

The hearing was held remotely, as has been the standard during the coronavirus pandemic, and, following an older tradition, Justice Barrett asked questions last as the newest member to the bench.

She picked up on a thread begun earlier by Justice Brett Kavanaugh as she did so, pressing Assistant to the U.S. Solicitor General Matthew Guarnieri on what stops an agency from invoking a deliberative-process privilege under FOIA Exemption 5 to withhold telling documents.

“You said that if a government official simply stamped ‘draft’ on [a document] and did so in order to avoid FOIA disclosure requirements, a court might look at other factors to determine whether it’s still final,” Barrett said. “What other factors would a court consider?” 

Guarnieri pointed Barrett broadly to “peripheral considerations,” like a government agency’s previous actions around similar processes.

In the underlying case, the Sierra Club is clamoring to see the government’s draft biological opinions on power plant cooling mechanisms that draw huge amounts of water from lakes, rivers and oceans but often suck up fish and wildlife, including larvae, in the process.

The EPA proposed regulations for the structures in 2011 but, before making its rule final, sought input on whether the intakes would jeopardize any listed endangered species.

For the Sierra Club, the rub is that the U.S. Fish and Wildlife Service never finalized its initial finding in December 2013 that said the proposed rule would threaten protected species.

Instead, the agency engaged in months of discussions with the EPA that culminated with Fish and Wildlife Service releasing a “no jeopardy” biological opinion on the same day that the EPA promulgated its final rule based on those findings.

Fish and Wildlife seeks a reversal now after the Ninth Circuit ruled that the agency had no right to shield its 2013 draft opinion and accompanying research from.

After Guarnieri pointed to “peripheral considerations,” however, Justice Barrett expressed concern that such direction would lead to a “pretty fact-intensive determination.”

“So, it is not your position that we should adopt some sort of bright line saying, ‘listen, it’s not over until it’s over. It’s not until it is actually issued — in the sense of it being a final [draft]” she said. “You’re not asking for a rule that is that bright?”

A bright-line rule in theory could permit an agency to withhold from public view any record it has labeled as a draft, regardless of what it contains or what the underlying facts might be.

“We think those considerations for this particular scheme, the line is easy to draw because it’s so clear,” Guarnieri said.

“So your first order of preference would be to formalize a bright line and then your back-up argument would be, if the court did not want to avoid FOIA obligations through stamping ‘draft’ at the top [of a document] that we go with the more multi-factor fact specific test to see what the agency is holding out as a final opinion?” Barret asked.

Guarnieri agreed. He also argued that the deliberative-process privilege ought to extend all the way back in the agency record to any internal deliberations that were ongoing before a final biological opinion was issued. 

Justice Elena Kagan asked the government to weigh a hypothetical on Tuesday.

“If the draft came to the relevant decision makers who looked at it and realized, let’s say, it would cause a big problem for the EPA, so they said, ‘I’m not going to send this over, I’m going to give the EPA head a call and tell him about everything in it and that will ensure there nothing FOIA-able in this document, what would your answer to that be?” Kagan said.

Guarnieri hedged, arguing instead that nothing on the record implied a final decision had been made previous to the final rule issued by EPA in 2014.

Pressing on, however, Kagan noted that some of the available records between the agencies in this case left more questions than answers. Like other justices this morning, Kagan voiced concern that a reversal for the government might greenlight the skirting of FOIA requirements. 

Chief Justice John Roberts meanwhile prodded Sierra Club attorney Sanjay Narayan about whether an agency’s analysis becomes disclosable once a decisionmaker gives it what is known as “operative effect.”

Narayan argued that so long as a “document explains a decision by the agency with appreciable legal consequences,” then the exemption rules should not apply.

Most justices sounded skeptical. 

The doubt rang through one of Justice Gorsuch’s last questions: “Are you concerned that a more invasive rule might deter productive discussion?”

A decision from the justices is expected to be released in June.

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