This action deals with materials generated during the U.S. Environmental Protection Agency’s (EPA) proposed new regulations under § 316(b) of the federal Clean Water Act for cooling water intake structures and its consultation with the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS; and together the Services) about potential impacts under the federal Endangered Species Act (ESA).  The consultation was to ensure that the agency’s action would not be likely to jeopardize the continued existence or result in the destruction or adverse modification of habitat of any endangered or threatened species. Plaintiff Sierra Club made a request under the Freedom of Information Act (FOIA) to the Services for records generated during EPA’s rulemaking process in connection with the cooling water intake structure regulations. The Services withheld many of the documents under “Exemption 5” of FOIA, which shields documents subject to the “deliberative process privilege” and this appeal from the U.S. District Court’s ruling followed. [Sierra Club, Inc. v. U.S. Fish and Wildlife Service, 911 F.3d 967 (9th Cir. Dec. 21, 2018).]

FOIA Exemption 5: Must be Pre-decisional and Deliberative

Because FOIA mandates a policy of broad disclosure of government documents, agencies may only withhold documents under the act’s exemptions. Under Exemption 5, FOIA’s general requirement to make information available to the public does not apply to interagency or intra-agency memorandums or letters that would not be available by law to a party other than another agency in litigation with the agency. The deliberative process privilege, claimed by the Services in this case, permits agencies to withhold documents:

• . . .to prevent injury to the quality of agency decisions by ensuring that the frank discussion of legal or policy matters in writing, within the agency.

Thus, to qualify under this exemption, a document must be both “pre-decisional and deliberative.”

A document is pre-decisional if it is:

• . . .prepared in order to assist an agency decision-maker in arriving at his [or her] decision, and may include recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency.

Similarly, deliberative materials include subjective documents which reflect the personal opinions of the writer rather than the policy of the agency or that inaccurately reflect or prematurely disclose the views of the agency. Under the “functional approach,” the Ninth Circuit considered whether the contents of the documents reveal the mental processes of the decision-makers and would expose the Services’ decision-making process:

• . . .in such a way as to discourage candid discussion within the agency and thereby undermine [their] ability to perform [their] functions.

The Ninth Circuit’s Decision

The court noted that although some of the biological opinions in this action were not publiclyissued, they nonetheless represented the Services’ final views and recommendations regarding the EPA’s then-proposed regulation:

• Both the Supreme Court and this court have held that the issuance of a biological opinion is a final agency action. Bennet v. Spear, 520 U.S. 154, 178 (1997); Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv., 450 F.3d 930, 940 (9th Cir. 2006). So our focus is on whether each document at issue is pre-decisional as to a biological opinion, not whether it is pre-decisional as to the EPA’s rulemaking.

Where a document is created by a final decision-maker and represents the final view of an entire agency as to a matter which, once concluded, is a final agency action independent of another agency’s use of that document, it is not pre-decisional. Here, the record reflected the finality of the conclusions in many of the draft opinions, which had been approved by final decision-makers at each agency and were simply awaiting signature. Therefore, these opinions were not within the scope of FOIA’s Exemption 5.

Only some of the draft jeopardy opinions could reveal inter- or intra- agency deliberations and were thus exempt from disclosure. Those documents were successive drafts of the Services’ recommendations for the proposed rules, and comparing the drafts would shed light on the internal vetting process.

But many of the documents did not contain line edits, marginal comments, or other written material that exposed any internal agency discussion about the jeopardy findings. Nor did they contain any insertions or writings reflecting input from lower level employees. Since they did not reveal any internal discussions about how recommendations were vetted, those materials were not deliberative.

Conclusion and Implications

This opinion highlights the fact that FOIA’s exemptions must be interpreted narrowly because the act is meant to promote public disclosure. For purposes of withholding documents under Exemption 5, an agency has the burden to prove that the documents are both pre-decisional and deliberative, and therefore are not subject to disclosure.  The opinion may be accessed online at the following link:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/12/21/17-16560.pdf

(Nedda Mahrou)