The Supreme Court on Monday heard a case likely to have implications for whether federal agencies can withhold from the public documents showing the government’s internal deliberations.
The case was brought by the Sierra Club after it was denied documents associated with an Environmental Protection Agency (EPA) water intake regulation that the Fish and Wildlife Service (FWS) initially determined would be harmful to endangered species.
The EPA took that draft opinion under advisement, ultimately drafting a rule the service found would not adversely affect protected species.
At stake in the case are the deliberations that took place at FWS and whether the government is obligated to turn over documents that can show heated debates over government policies.
The Freedom of Information Act (FOIA) allows agencies to withhold documents that show internal deliberations. This is designed to encourage frank and open discussion on policies. It’s an exemption used frequently by all sorts of government agencies, often to the chagrin of reporters and public interest groups seeking to unearth the rationale behind government decisions.
But the Sierra Club argues the FWS stretched that rule too far, holding back the release of documents like its draft biological opinion that were largely final and should be public.
“The problem with the services’ standard is that it boils down to ‘it’s privileged if we say it’s privileged,’ ” said Sanjay Narayan, who argued the case on behalf of the Sierra Club, arguing doing so could undermine FOIA’s key role: “making sure the public knows how agencies are actually using the authority Congress gave them.”
“It is really important to know why the services are saying what they’re saying, at least when they effectively foreclose a proposed regulation,” he added in reference to the influence FWS’s work had in changing the EPA’s water intake rule.
The justices asked the Sierra Club to define when documents are complete enough to require release under FOIA.
Justice Neil Gorsuch posited a rule could go too far in one direction, having a cooling effect at agencies that could hinder dialogue.
“Without adequate room to kind of back down privately, the government sometimes winds up making worse decisions rather than better ones,” he said, noting that EPA’s second iteration of the rule was preferred by environmental groups.
“It does seem like that because of the back and forth privately, thanks to the services’ intervention, EPA came up with a rule that might be better from your perspective. How do we balance that concern and allow agencies sufficient room to maneuver privately to avoid having, you know, to embarrass themselves later and allow them to save face to get to better policy results?”
The government argued such draft documents should be shielded from the FOIA process.
“The general rule here should be a clear bright-line test that, until a biological opinion is signed and formally issued, there is no final decision,” argued Matthew Guarnieri, a Justice Department lawyer.
“The biological opinion here is really no different than a judge’s or a court’s opinion, which is not actually final until it’s adopted by the judge and issued as an official opinion,” he added.
A decision in the case, U.S. Fish and Wildlife Service v. Sierra Club, is expected some time before the term ends in late June.