The Environmental Protection Agency consulted with two other government services to determine whether particular cooling water intake structures jeopardized aquatic wildlife. The services issued draft opinions that a particular rule would jeopardize certain species, which were never approved in final form. The EPA modified the rule, and the services issued a “no jeopardy” opinion. The Sierra Club sued under the Freedom of Information Act to obtain the draft opinions. The EPA argued that the draft opinions were protected under the deliberative process privilege. The Ninth Circuit held that the draft opinions were not entitled to the privilege because they represented the final opinion of the services.
The Court, in a 7-2 opinion by Justice Barrett—her first official majority opinion for the Court—reversed, holding that while the privilege does not apply to documents that embody an agency’s final decision, the draft opinions were protected because they reflected a “preliminary view,” not a final one, as they were treated by the services themselves. The majority opinion emphasized that the draft opinions were never adopted by the decisionmakers at the services, and the fact that the EPA changed its rule rendering the opinions moot meant they “died on vine.” Justice Breyer, joined by Justice Sotomayor, dissented, arguing that the draft opinions were “final” as to their conclusions, notwithstanding their “draft” status.
A link to the opinion in United States Fish and Wildlife Service v. Sierra Club, Inc. is here: https://www.supremecourt.gov/opinions/20pdf/19-547_08m1.pdf