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In Barrett’s first majority opinion, court sides with government in FOIA dispute

Chart showing 7-2 vote alignment (Roberts, Thomas, Alito, Kagan, Gorsuch, Kavanaugh Barrett in majority; Breyer and Sotomayor in dissent)

The federal government does not have to fully disclose certain draft environmental documents under the Freedom of Information Act, even if those documents reflect an agency’s final view about a policy proposal that it later abandons, the Supreme Court ruled Thursday. Justice Amy Coney Barrett wrote the opinion, her first majority opinion since joining the court in October.

The court sided 7-2 against the Sierra Club, which filed a FOIA request for “draft biological opinions” that environmental officials produced in 2013. Those opinions analyzed potential threats to endangered species from a proposed rule on underwater structures used to cool down industrial equipment.

The government argued that the documents were covered by FOIA’s “deliberative process” privilege, which allows the government to withhold documents that are generated as part of an agency’s process of formulating a new policy. Barrett agreed, rejecting the Sierra Club’s argument that the documents embodied a final policy conclusion and therefore should not be covered by the privilege.

Although the documents were the “last word” about the proposed rule, they do not represent final agency decision-making because the Environmental Protection Agency reconsidered the proposed rule and never issued it, Barrett wrote.

The draft opinions, Barrett wrote, “were not last because they were final; they were last because they died on the vine.”

The court sent the case, U.S. Fish and Wildlife Service v. Sierra Club, back to a federal district court for further analysis of whether any parts of the documents can be separated from the privileged material and thus disclosed under FOIA.

Justice Stephen Breyer, joined by Justice Sonia Sotomayor, dissented.

Check back soon for an in-depth analysis of the opinion.

Recommended Citation: James Romoser, In Barrett’s first majority opinion, court sides with government in FOIA dispute, SCOTUSblog (Mar. 4, 2021, 12:31 PM),