Supremes Pick Up Public Access Fight on Draft Regulations

WASHINGTON (CN) — The Supreme Court agreed Monday to review whether draft documents that preceded new regulations on power plants and manufacturing facilities are subject to public disclosure.

The dispute started in 2014 with a request by Sierra Club to learn what kind of consultation the government had before adopting new rules on power plant cooling systems. Environmentalists say the current technology for cooling systems threatens aquatic species, and that record access will support their fight for a better standard.

(AP Photo/Mark Tenally)

In the face of Sierra Club’s suit under the Freedom of Information Act, however, the government invoked a FOIA exemption that treats the deliberative process as privileged.

Ultimately a federal judge ordered production of 12 of 16 requested records the U.S. Department of Fish and Wildlife and the National Marine Fisheries Service.

The Ninth Circuit affirmed only in part, putting another two records off limits under the deliberative-process privilege known as Exemption 5.

Confounding the government, however, the court ruled that draft documents enjoy no such privilege. This past October, U.S. Solicitor General Noel Francisco petitioned the high court to weigh in.

“The interagency consultation process in this case was plainly deliberative, and the agencies’ preliminary drafts preceding their final decisions are entitled to protection,” he wrote.

Francisco warned that, “if the Ninth Circuit’s decision is left standing, it would threaten to chill the candid interagency exchange that is the very purpose of the privilege.”

Sierra Club attorney Sanjay Narayan meanwhile argued in a reply brief that the high court should uphold what was an “uncontroversial and deeply fact-bound standard.”

“The decision below presents no threat to agencies’ decisionmaking,” Narayan wrote. “It merely makes available to the public documents that the Services generally include in the public record.”

Narayan on Monday reiterated the importance of getting access to the government’s records.

“It has long been the rule that agencies cannot hide documents that make decisions, and affect the public, by stamping those decisions ‘draft’ or ‘secret,’” he said in an email. “We will be urging the Supreme Court to uphold that rule, under which the documents at issue in this case should rightfully be accessible to the public.”

Representatives for the Fish and Wildlife Service did not return a request for comment.

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