Plain-English summary
Says draft biological opinions in endangered-species consultations are protected from disclosure under FOI
In United States Fish and Wildlife Service v. Sierra Club (No. 19-547), the Court held that Exemption 5 of the Freedom of Information Act — incorporating the deliberative process privilege — protects agency in-house draft biological opinions created during formal Section 7 consultations, so long as they are predecisional and deliberative. The Court reversed the Ninth Circuit and remanded the case.
Why this matters
The ruling clarifies the reach of FOIA Exemption 5 for interagency consultations under the Endangered Species Act and more broadly protects internal agency drafts, encouraging frank internal discussion and advice while limiting public access to predecisional deliberative materials. That balance affects transparency and how agencies prepare analyses that inform major regulatory and environmental decisions.
Who may feel it
- Environmental groups and public-interest requesters who use FOIA to obtain agency documents
- Federal agencies that prepare interagency consultations and internal draft analyses
- Developers, states, and others involved in projects subject to endangered-species consultations
- Attorneys, scientists, and staff who draft internal agency advice and opinions
Key questions
- Does FOIA Exemption 5 protect draft biological opinions prepared during formal Section 7 consultations under the Endangered Species Act?