Amicus Curiae Brief — United States Fish and Wildlife Service, et al., Petitioners v. Sierra Club, Inc.

Supreme Court briefAug 3, 2020

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No. 19-547

IN THE

Supreme Court of the United States

UNITED STATES FISH AND WILDLIFE SERVICE , et al.,

Petitioners,

—v.—

SIERRA CLUB , INC .,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF AMICI CURIAE OF THE AMERICAN CIVIL

LIBERTIES UNION, AMERICAN CIVIL LIBERTIES

UNION OF NORTHERN CALIFORNIA, AND CITIZENS

FOR RESPONSIBILITY AND ETHICS IN WASHINGTON

IN SUPPORT OF RESPONDENT

Brett Max Kaufman

Ashley Gorski

Patrick C. Toomey

Jennesa Calvo-Friedman

Alexia Ramirez

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street, 18th Floor

New York, NY 10004

Anne L. Weismann

Nikhel S. Sus

CITIZENS FOR RESPONSIBILITY

AND ETHICS IN WASHINGTON

1101 K Street, NW, Suite 201

Washington, DC 20005

David D. Cole

Counsel of Record

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

915 5th Street, NW

Washington, D.C. 20005

(212) 549-2611

dcole@aclu.org

Shilpi Agarwal

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION OF

NORTHERN CALIFORNIA

39 Drumm Street

San Francisco, CA 94111

Counsel for Amici Curiae

TABLE OF CONTENTS

PAGE

INTEREST OF AMICI CURIAE . . . . . . . . . . . . .

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . .

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

The important but limited purpose of

Exemption 5 is to shield from disclosure

agency records reflecting deliberative “give

and take,” not to categorically exempt any

record that somehow contributes to agency

decisionmaking . . . . . . . . . . . . . . . . . . . . . . . . .

To ensure proper withholding under

Exemption 5, courts should apply a

functional test that accounts for the purpose

of the exemption, the specific deliberative

process at issue, the role particular agency

records play in that process, and the contents

of those records . . . . . . . . . . . . . . . . . . . . . . . . .

III. Because the Services’ 2013 biological

opinions announced the agencies’ considered

judgment regarding a concrete question

firmly within their regulatory and scientific

purview, the opinions are not deliberative

and cannot be withheld under

Exemption 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . .

A. The court of appeals properly applied

the relevant factors to the biological

opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

B. The government’s counterarguments

are unpersuasive . . . . . . . . . . . . . . . . . . . .

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

II.

TABLE OF AUTHORITIES

PAGE(S)

Cases

ACLU v. NSA,

925 F.3d 576 (2d Cir. 2019) . . . . . . . . . . . . . . 10, 14

Animal Legal Def. Fund, Inc. v. Dep’t of Air Force,

44 F. Supp. 2d 295 (D.D.C. 1999) . . . . . . . . .

Arizona v. Gant,

556 U.S. 332 (2009) . . . . . . . . . . . . . . . . . . . . .

Arthur Andersen & Co. v. IRS,

679 F.2d 254 (D.C. Cir. 1982) . . . . . . . . . 12, 16, 18

Brennan Ctr. for Justice at

N.Y.U. Sch. of Law v. DHS,

331 F. Supp. 3d 74 (S.D.N.Y. 2018) . . . . . . .

Coastal States Gas Corp. v. Dep’t of Energy,

617 F.2d 854 (D.C. Cir. 1980) . . . . . . . . . . . passim

Collins v. Virginia,

138 S. Ct. 1663 (2018) . . . . . . . . . . . . . . . . . . .

Cty. of Maui v. Haw. Wildlife Fund,

140 S. Ct. 1462 (2020) . . . . . . . . . . . . . . . . . . .

In re Cty. of Erie,

473 F.3d 413 (2d Cir. 2007) . . . . . . . . . . . . . .

Dep’t of Air Force v. Rose,

425 U.S. 352 (1976) . . . . . . . . . . . . . . . . . . . . .

4, 5

Dietz v. Bouldin,

136 S. Ct. 1885 (2016) . . . . . . . . . . . . . . . . . . .

DOJ v. Reporters Comm. for Freedom of Press,

489 U.S. 749 (1989) . . . . . . . . . . . . . . . . . . . . .

iii

PAGE(S)

Fort James Corp. v. Solo Cup Co.,

412 F.3d 1340 (Fed. Cir. 2005) . . . . . . . . . . .

Hickman v. Taylor,

329 U.S. 495 (1947) . . . . . . . . . . . . . . . . . . . . .

Illinois v. Wardlow,

528 U.S. 119 (2000) . . . . . . . . . . . . . . . . . . . . .

Kansas v. Glover,

140 S. Ct. 1183 (2020) . . . . . . . . . . . . . . . . . . .

Karnoski v. Trump,

926 F.3d 1180 (9th Cir. 2019) . . . . . . . . . . . .

Larson v. DOS,

2005 WL 3276303

(D.D.C. Aug. 10, 2005) . . . . . . . . . . . . . . . . . .

Milner v. Dep’t of Navy,

562 U.S. 562 (2011) . . . . . . . . . . . . . . . . . . . . .

Nat’l Archives & Records Admin. v. Favish,

541 U.S. 157 (2004) . . . . . . . . . . . . . . . . . . . . 4, 5, 27

NLRB v. Robbins Tire & Rubber Co.,

437 U.S. 214 (1978) . . . . . . . . . . . . . . . . . . . . .

NLRB v. Sears, Roebuck & Co.,

421 U.S. 132 (1975) . . . . . . . . . . . . . . . . . . . . passim

N.Y. Times Co. v. DOJ,

756 F.3d 100 (2d Cir. 2014) . . . . . . . . . . . . . .

Redland Soccer Club, Inc. v. Dep’t of Army,

55 F.3d 827 (3d Cir. 1995) . . . . . . . . . . . . . . .

Renegotiation Bd. v.

Grumman Aircraft Eng’g Corp.,

421 U.S. 168 (1975) . . . . . . . . . . . . . . . . . . . . passim

PAGE(S)

Schlefer v. United States,

702 F.2d 233 (D.C. Cir. 1983) . . . . . . . . . . 7, 13, 16

Senate of the Com. of P.R. v. DOJ,

823 F.2d 574 (D.C. Cir. 1987) . . . . . . . . . . . .

Sterling Drug, Inc. v. FTC,

450 F.2d 698 (D.C. Cir. 1971) . . . . . . . . . . . .

Tax Analysts v. IRS (Tax Analysts I),

117 F.3d 607 (D.C. Cir. 1997) . . . . . . . . . . . . 11, 12

Tax Analysts v. IRS (Tax Analysts II),

294 F.3d 71 (D.C. Cir. 2002) . . . . . . . . . . . . . 14, 15

Texaco P.R., Inc. v. Dep’t of Consumer Affairs,

60 F.3d 867 (1st Cir. 1995). . . . . . . . . . . . . . .

United States v. Weber Aircraft Corp.,

465 U.S. 792 (1984) . . . . . . . . . . . . . . . . . . . . .

Vaughn v. Rosen,

523 F.2d 1136 (D.C. Cir. 1975) . . . . . . . . . . .

Statutes

5 U.S.C. § 551(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5 U.S.C. § 552,

Freedom of Information Act (“FOIA”) . . . . passim

5 U.S.C. § 552(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . .

8, 14

5 U.S.C. § 552(b)(5). . . . . . . . . . . . . . . . . . . . . . . . . passim

16 U.S.C. §§ 1531–1544,

Endangered Species Act (“ESA”) . . . . . . . . passim

16 U.S.C. § 1536 . . . . . . . . . . . . . . . . . . . . . . . . . . . .

16 U.S.C. § 1536(a)(2) . . . . . . . . . . . . . . . . . . . . . . .

PAGE(S)

16 U.S.C. § 1536(b)(3)(A) . . . . . . . . . . . . . . . . . . . .

FOIA Improvement Act of 2016,

Pub. L. No. 114–185. . . . . . . . . . . . . . . . . . . . .

Rules

50 C.F.R. § 402.14 . . . . . . . . . . . . . . . . . . . . . . . . . . .

50 C.F.R. § 402.14(a) . . . . . . . . . . . . . . . . . . . . . . . .

50 C.F.R. § 402.14(g)(5) . . . . . . . . . . . . . . . . . . . . . .

50 C.F.R. §402.14(m)(2) . . . . . . . . . . . . . . . . . . . . . .

Other Authorities

12 Fed. Proc., L. Ed. § 33:303 . . . . . . . . . . . . . . . .

76 Fed. Reg. 22,174 (Apr. 20, 2011) . . . . . . . . . . .

79 Fed. Reg. 48,300 (Aug. 15, 2014) . . . . . . . . . . . 21, 27

112 Cong. Rec. 13,031 (1966) . . . . . . . . . . . . . . . . .

120 Cong. Rec. H1787–1803 (1974) . . . . . . . . . . .

120 Cong. Rec. H10864–75 (1974) . . . . . . . . . . . .

120 Cong. Rec. S9310–43 (1974) . . . . . . . . . . . . . .

120 Cong. Rec. S19806–23 (1974) . . . . . . . . . . . . .

Black’s Law Dictionary (11th ed. 2019) . . . . . . . 15, 16

Cambridge Dictionary . . . . . . . . . . . . . . . . . . . . . . . 15, 16

Laura Meckler, Hillary Clinton’s State Dep’t

Staff Kept Tight Rein on Records,

Wall St. J., May 19, 2015 . . . . . . . . . . . . . . . .

PAGE(S)

Staff of H. Comm. on Oversight and Gov’t

Reform, 112th Cong., A New Era of

Openness? How and Why Political

Staff at DHS Interfered with the FOIA

Process (2011) . . . . . . . . . . . . . . . . . . . . . . . . . .

Subcomm. on Admin. Prac. and Proc. of the

Comm. on the Judiciary, 93rd Cong.,

Freedom of Information Act Source Book

(1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

INTEREST OF AMICI CURIAE

The American Civil Liberties Union (“ACLU”) is a

nationwide, non-partisan, non-profit organization

with approximately two million members and

supporters dedicated to the principles of liberty and

equality embodied in the Constitution and our

nation’s civil rights laws. Founded in 1920, the ACLU

regularly appears before this Court, both as direct

counsel and as amicus curiae. Documents obtained

through Freedom of Information Act requests are

often critical in shaping the ACLU’s response on a

range of important civil liberties issues. 1 The ACLU

of Northern California is a state affiliate of the

national ACLU.

Citizens for Responsibility and Ethics in

Washington (“CREW”) is a non-profit corporation,

organized under section 501(c)(3) of the Internal

Revenue Code. CREW seeks to promote accountability,

transparency, and integrity in government. CREW is

committed to protecting the right of citizens to be

informed about the activities of government officials

and empowering citizens to have an influential voice

in government decisions through the dissemination of

information, including information CREW obtains

through the Freedom of Information Act. Toward that

end, CREW uses a combination of research, litigation,

and advocacy to advance its mission.

No counsel for any party authored this brief in whole or in

part, and no counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief.

Petitioner has consented to the filing of this brief by letter on

file with amici, and Respondent’s letter consenting to the filing

of amicus briefs is on file with the clerk.

SUMMARY OF ARGUMENT

In a large and complex network of government

agencies, deliberation—within each agency, and among

the many—is essential. Recognizing that reality,

when the drafters of the Freedom of Information Act

(“FOIA”) created a default presumption that all

government records are obtainable by the public, they

also incorporated a narrow carve-out in Exemption

5—the deliberative process privilege—meant to foster

frank and collaborative government decisionmaking.

This case concerns a question that has largely

escaped judicial attention: If a record that reflects the

final determination of one agency is then considered

by another agency in an inter-agency process, how

does a court determine whether it is “predecisional”

and “deliberative,” and therefore protected under

Exemption 5, or instead decisional and therefore

disclosable?

The varying practices of government decisionmaking preclude a bright-line answer to this

question. Decades of judicial application of FOIA to

intra-agency deliberations, however, yield principles

and factors that can usefully point the way. As this

Court has already explained, the same considerations

that help courts evaluate the application of the

deliberative process privilege to intra-agency records

likewise apply to inter-agency records. The critical

questions are the function of the document itself and

the context of the administrative process that

generated it. To evaluate those questions, courts look

to multiple factors. First, courts evaluate whether a

document is meant to lay out options for an ultimate

decisionmaker, or whether it effectively constrains

another official’s (or agency’s) actions. Second, courts

examine the authors and recipients of records and

their relative positions—a relationship that is

indicative of the decisional quality of a document.

Third, the contents of records themselves often indicate

whether they are deliberative and predecisional.

Finally, courts evaluate the impact a document has in

an inter- or inter-agency process to see whether its

operative effect suggests decision or deliberation. And

each of these factors should be evaluated in light of

the FOIA’s presumption in favor of disclosure, as well

as the important but limited purposes of Exemption 5.

In this case, these considerations point to the

conclusion that the Services’ 2013 biological jeopardy

opinions are not deliberative documents, and thus

their withholding is not justified under the statute.

The court of appeals correctly determined that these

opinions represented the considered determination of

an independent agency on an issue entirely within its

regulatory authority and scientific expertise—indeed,

one that it, and it alone, is statutorily tasked with

answering. The opinion reflects not its deliberations

towards that answer, but its answer. It is a decisional

document.

The fact that the Environmental Protection Agency

(“EPA”) then considered the Services’ decision in its

own deliberation does not transform the Services’

record into a deliberative one. The EPA’s own

deliberations may be protected by Exemption 5, but

not the conclusive determination of the Services on a

matter within their authority and expertise. By

focusing on the EPA’s rulemakings, the government

seeks to redefine the Services’ 2013 opinions as

merely another advisory input into the decisionmaking at a coordinate agency. But a careful

examination of the opinions, their purpose, their

contents, and their operative effect leads to the

conclusion that they are not predecisional and

deliberative, but decisional expressions of the

Services’ final views. The fact that the EPA then

considered these final views in its own deliberative

processes does not transform the records from

decisional to predecisional.

The government’s logic turns the FOIA’s

presumption of access on its head: it dramatically

expands a narrow, limited exception to the statute,

and risks shielding countless government records

from the public, contrary to Congress’s intent. The

Court should reject the government’s bid to enlarge

its withholding authority, and should affirm the

appellate decision below.

ARGUMENT

I. The important but limited purpose of

Exemption 5 is to shield from disclosure

agency records reflecting deliberative “give

and take,” not to categorically exempt any

record that somehow contributes to agency

decisionmaking.

Passed in 1966 and strengthened several times

since, the FOIA “is often explained as a means for

citizens to know what their Government is up to.”

Nat’l Archives & Records Admin. v. Favish, 541 U.S.

157, 171 (2004) (quotation marks omitted). As this

Court has noted, the statute’s “central purpose is to

ensure that the Government’s activities be opened to

the sharp eye of public scrutiny.” DOJ v. Reporters

Comm. for Freedom of Press, 489 U.S. 749, 774 (1989).

Indeed, public scrutiny of government decisionmaking that is many times removed from the voting

booth—so that the people may “pierce the veil of

administrative secrecy”—is the FOIA’s central point.

Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976)

(quotation marks omitted). This purpose serves “to

ensure an informed citizenry, vital to the functioning

of a democratic society, needed to check against

corruption and to hold the governors accountable to

the governed.” NLRB v. Robbins Tire & Rubber Co.,

437 U.S. 214, 242 (1978). The statute is a “structural

necessity in a real democracy.” Favish, 541 U.S. at 172.

The cardinal rule of the FOIA is its presumption in

favor of the disclosure of government records. More

than forty years ago, this Court explained that the

FOIA’s “limited exemptions do not obscure the basic

policy that disclosure, not secrecy, is the dominant

objective of the Act.” Rose, 425 U.S. at 361. That

framework has not changed in the interim, and

following Congress’s command, the Court continues

to give the FOIA’s exemptions “a narrow compass.”

Milner v. Dep’t of Navy, 562 U.S. 562, 571 (2011)

(quotation marks omitted). Moreover, the Court has

explained in other contexts that exceptions to default

rules do not apply automatically upon invocation, but

rather must remain “[]tether[ed]” to “the justifications

underlying the . . . exception.” Arizona v. Gant, 556

U.S. 332, 343 (2009). The Court has refused to

“unmoor . . . exception[s] from [their] justifications . . .

and transform what was meant to be an exception

into a tool with far broader application.” Collins v.

Virginia, 138 S. Ct. 1663, 1667 (2018). 2

Congress has repeatedly recognized FOIA as central to

democratic accountability. The original 1966 bill passed by an

overwhelming margin in both chambers of Congress. 120 Cong.

Rec. H1787–1803 (1974); 120 Cong. Rec. S9310–43 (1974).

Congress strengthened FOIA in 1974, overriding a presidential

veto to do so. 120 Cong. Rec. H10864–75 (1974); 120 Cong. Rec.

S19806–23 (1974). FOIA has been amended repeatedly since then,

most recently in 2016, in order to reinforce and further expand its

reach. See FOIA Improvement Act of 2016, Pub. L. No. 114–185.

Like the other statutory exemptions under the

FOIA, Exemption 5 is a limited exception to the

statute’s default rule of disclosure. Its text permits

the withholding of “inter-agency or intra-agency

memorandums or letters that would not be available

by law to a party other than an agency in litigation

with the agency.” 5 U.S.C. § 552(b)(5). The Court has

described the exemption as encompassing records

“made in the course of formulating agency decisions

on legal and policy matters.” NLRB v. Sears, Roebuck

& Co., 421 U.S. 132, 138 (1975). Congress adopted

Exemption 5 with the “ultimate purpose” of

“prevent[ing] injury to the quality of agency

decisions,” Sears, 421 U.S. at 151, and that purpose

remains the touchstone for analysis. Exemption 5’s

incorporation of the “deliberative process privilege”

protects records over which “confidentiality is

necessary to ensure frank and open discussion and

hence efficient governmental operations.” United

States v. Weber Aircraft Corp., 465 U.S. 792, 802

(1984). As the D.C. Circuit has explained, the

privilege assures “subordinates within an agency”

that they can “feel free to provide the decisionmaker

with their uninhibited opinions and recommendations

without fear of later being subject to public ridicule or

criticism.” Coastal States Gas Corp. v. Dep’t of

Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). It helps

thwart the “premature disclosure of proposed

policies,” and prevents public “confusi[on]” resulting

from a “misleading” account of “reasons and

rationales for a course of action which were not in

fact the ultimate reasons for the agency’s action.” Id.

Importantly, “[p]redecisional communications ‘are not

exempt merely because they are predecisional; they

must also be a part of the agency give-and-take . . . by

which the decision itself is made.’” Senate of the Com.

of P.R. v. DOJ, 823 F.2d 574, 585 (D.C. Cir. 1987)

(alterations in original) (quoting Vaughn v. Rosen,

523 F.2d 1136, 1144 (D.C. Cir. 1975)).

As this Court long ago observed, “the line between

pre-decisional documents and postdecisional documents

may not always be a bright one.” Sears, 421 U.S. at

152 n.19; see Schlefer v. United States, 702 F.2d 233,

237 (D.C. Cir. 1983) (Whether an agency record is

deliberative or not, even “if readily described in

abstraction, is often blurred in concrete cases.”). The

basic distinction is between “deliberative advice and

recommendations,” Renegotiation Bd. v. Grumman

Aircraft Eng’g Corp., 421 U.S. 168, 186 (1975), and

nonprivileged documents reflecting an agency’s

decision. The former class of records, which often

express tentative opinions along the way toward

reaching the agency’s final determination, are “the

ingredients of the decisionmaking process,” and their

compelled disclosure would risk inhibiting sound

decisionmaking by revealing the thinking of

government officials intended to frankly, and

preliminarily, further the agency’s creation of policy.

Sears, 421 U.S. at 151. They are to be distinguished

from unprivileged communications that either

announce, or are “designed to explain” and justify, an

agency decision. Id. at 152. Disclosure of decisional

records promotes the “public interest in knowing the

basis for agency policy already adopted.” Id.; see

Schlefer, 702 F.2d at 237 (“The disclosure of

documents that authoritatively state an agency’s

position will neither inhibit the free exchange of

views within the agency nor confuse the public,

because the agency’s own purpose in preparing such

documents is to obviate the need for further intraagency deliberation on the matters addressed.”).

This Court has recognized that even the same agency

record may serve predecisional and postdecisional

(and thus privileged and unprivileged) functions.

Context, not labels, must dictate whether such a

document is subject to disclosure under the FOIA. In

Sears, the Court considered the “prototype of the

postdecisional document—the ‘final opinion.’” 421

U.S. at 152 n.19. 3 The Court explained that although

such a record would undoubtedly (and even

intentionally) later “provid[e] guides for decisions of

similar or analogous cases arising in the future,” such

a predecisional use of the document would not alter

the “primarily postdecisional” nature of a record that

“explain[s] a decision just made.” Id. (cleaned up).

The reason for such a document’s disclosure has little

to do with formalities such as headers, labels, or

signatures—instead, it reflects a judgment that

“disclosure [of such records] poses a negligible risk of

denying to agency decisionmakers the uninhibited

advice which is so important to agency decision.” Id.

In short, Exemption 5 is not a blank check for

government agencies to keep records secret by

pointing to how they may be used to inform other

decisions. Instead, it is a limited privilege, designed

to protect only those documents that, when created,

are truly predecisional and would reveal agency

3 The government, focusing on the FOIA’s affirmative disclosure

provisions in 5 U.S.C. § 552(a)(2), suggests that the only kind of

postdecisional (and non-deliberative) document subject to

disclosure under the FOIA is a “final opinion.” See Br. for Pet’rs

37. But while final opinions are one example of postdecisional

documents, they are not the only kind of postdecisional (and

non-deliberative) documents subject to disclosure under the

FOIA. See Grumman, 421 U.S. at 184 n.21 (discussing Sears,

421 U.S. at 153–54).

deliberations entitled to protection to serve the

statute’s purposes.

II. To ensure proper withholding under

Exemption 5, courts should apply a

functional test that accounts for the purpose

of the exemption, the specific deliberative

process at issue, the role particular agency

records play in that process, and the

contents of those records.

The government asks this Court to announce a

“clear rule[]” regarding how the deliberative process

privilege applies to agency memoranda. It argues

that without one, the privilege cannot “succeed at

promoting candor in individual agency employees.”

Br. for Pet’rs 18. But for roughly half a century, this

Court and the lower courts have embraced the

complexity of government decisional processes and

have looked not to a bright line, but to a number of

factors in making the necessarily case-by-case

judgments as to whether a particular record is

subject to Exemption 5—and it works. There is no

basis to believe that this has chilled deliberation, and

plenty of evidence to show that the prevailing

approach is both necessary and administrable.

Deliberative processes remain confidential, and the

government offers no evidence that the extant

approach has resulted either in the improper

disclosure of deliberative material, or in the chilling

of the deliberations themselves. The Court should

reaffirm that Exemption 5 is not susceptible to a

formalistic, bright-line rule, but requires a contextual

consideration of several clearly defined and

commonly applied factors, all going to the question

whether a particular record was predecisional advice

or reflects an agency’s actual decision.

The diversity in government records and

deliberative processes requires the judiciary to

employ a purpose-driven and context-dependent

approach when applying Exemption 5. The same is

true with respect to the common-law privileges that

underlie the exemption in ordinary discovery disputes.

For example, claims of the attorney–client privilege

are “assessed dynamically” rather than “demarcated

by a bright line.” In re Cty. of Erie, 473 F.3d 413, 420

(2d Cir. 2007); accord, e.g., Fort James Corp. v. Solo

Cup Co., 412 F.3d 1340, 1349–50 (Fed. Cir. 2005).

The same is true of the work product privilege. See,

e.g., Hickman v. Taylor, 329 U.S. 495, 511 (1947)

(rejecting a categorical rule that would protect “all

written materials obtained or prepared by an

adversary’s counsel with an eye toward litigation”).

And courts have also long taken a flexible, factintensive, and purpose-driven approach to assessing

the scope of the deliberative process privilege in other

contexts, such as a claim of executive privilege or as

part of a discovery dispute. See, e.g., Karnoski v.

Trump, 926 F.3d 1180, 1206 (9th Cir. 2019); Redland

Soccer Club, Inc. v. Dep’t of Army, 55 F.3d 827, 854–

55 (3d Cir. 1995); Texaco P.R., Inc. v. Dep’t of

Consumer Affairs, 60 F.3d 867, 885 (1st Cir. 1995);

see also 12 Fed. Proc., L. Ed. § 33:303 (describing the

“[f]actors to be balanced” in evaluating deliberative

process claims in non-FOIA civil litigation). By its

very nature, assessing whether a given document is

predecisional and deliberative, or post-decisional and

decisive, is necessarily a functional, rather than

formal exercise. See, e.g., ACLU v. NSA, 925 F.3d

576, 594 (2d Cir. 2019).

Overall, the “crucial” consideration in the FOIA

context, as this Court explained long ago, is “an

understanding of the function of the documents in

issue in the context of the administrative process

which generated them.” Sears, 421 U.S. at 138. This

case-by-case functional inquiry takes into account

various factors. See, e.g., Coastal States, 617 F.2d at

867 (explaining that prior case law concerning the

deliberative process privilege is of “limited help,”

because the privilege is “so dependent upon the

individual document and the role it plays in the

administrative process”). The same multi-pronged

assessment is appropriate whether one considers an

agency record in the context of an intra-, or inter-,

agency process, see Grumman, 421 U.S. at 169—

though the details of that process will inform the

result as to a particular record.

First, courts assess the function the document

played. Does it merely lay out available options for a

coordinate decisionmaker, or does it constrain agency

action by narrowing the range of permissible decisions?

In conducting this analysis, courts eschew formalistic

reliance on an agency’s labels for a document, and

instead look closely at the document’s practical purpose

and function. For example, in Tax Analysts v. IRS

(Tax Analysts I), 117 F.3d 607, 616–18 (D.C. Cir.

1997), the D.C. Circuit held that certain Field Service

Advice Memoranda (“FSAs”)—documents issued by

the Office of the Chief Counsel for the IRS, in

response to requests for legal guidance from field

revenue agents and attorneys—could not be withheld

under the deliberative process privilege. One of the

primary purposes of FSAs was to ensure that field

personnel applied the law correctly and uniformly. Id.

at 609. Even though these opinions were not

“formally binding” on IRS field personnel, and even

though they included “exploratory” analysis that

considered the “strengths and weaknesses of a case,”

the D.C. Circuit concluded that the documents were

ultimately “statements of an agency’s legal position”

that guided agency action. Id. at 609, 617.

Similarly, in Coastal States, 617 F.2d at 858, 867–

69, the D.C. Circuit held that legal opinions from the

Department of Energy’s (“DOE”) regional counsel

interpreting regulations for agency auditors were not

subject to the deliberative process privilege because

they had “operative effect”—i.e., they narrowed the

range of legitimate agency action. In arguing that the

opinions were privileged, DOE had emphasized that

regional counsel lacked “final decisionmaking

authority,” and that the opinions were not “formal” or

“binding” interpretations of the regulations. Id. at

859–60 & nn.7–8, 866–67. Yet the court looked

instead to the function and effect of the documents,

concluding that the opinions were not “informal

suggestions” that “could be freely disregarded,” id. at

860, 869, but were “akin to a ‘resource’ opinion about

the applicability of existing policy to a certain state of

facts,” id. at 868. They therefore fell outside the scope

of the deliberative process privilege. Id. 4

Second, courts routinely assess the identities and

positions of both the authors and recipients of a

record, again to help guide its assessment of whether

the records are “predecisional” or “decisional.” Is the

document meant to assist a supervisor who has

decisionmaking authority, or is it written by the

decisionmaker him or herself to announce a decision?

See, e.g., Arthur Andersen & Co. v. IRS, 679 F.2d 254,

258 (D.C. Cir. 1982) (explaining that both “the nature

While Tax Analysts I and Coastal States discuss agency

“working law”—that is, an agency’s effective law or policy—a

document need not qualify as working law to fall outside the

scope of the deliberative process privilege. See supra note 3 &

infra note 5.

of the decisionmaking authority vested in the office or

person issuing the disputed documents” and “the

positions in the chain of command of the parties to

the documents” are important considerations (cleaned

up)). “A document from a subordinate to a superior

official is more likely to be predecisional, while a

document moving in the opposite direction is more

likely to contain instructions to staff explaining the

reasons for a decision already made.” Coastal States,

617 F.2d at 868.

In making this assessment, courts take a

functional rather than formalist approach. The D.C.

Circuit’s decision in Schlefer, 702 F.2d at 237–38, is

illustrative. There, the court held that certain legal

opinions from the Office of the Chief Counsel of the

Maritime Administration to Maritime Administration

officials who requested them were not subject to the

deliberative process privilege, due in part to the

identities and ranks of the author and recipients. Id.

at 238–39. As a formal matter, the officials

requesting legal advice from the Chief Counsel had

decisionmaking responsibility for the ultimate agency

action. Id. at 238. However, as a practical matter, the

Chief Counsel occupied a “superior” position with

respect to the legal advice at issue. Id. That’s

because, in practice, “[a]gency action that depends on

statutory interpretation d[id] not occur without Chief

Counsel approval.” Id. While the Chief Counsel’s

decisions could be overruled by the head of the

agency, id. at 238 n.11, what mattered to the court

was the Chief Counsel’s authority vis-à-vis the

officials requesting legal guidance.

Third, courts consider whether the content of the

document itself sheds light on its status under

Exemption 5. Does a record purport to announce or

carry out a decision, or is it exploratory, tentative, or

inconclusive? Indeed, the very text can provide

important clues as to the document’s function. Terms

such as “[w]e believe” or “[w]e suggest” indicate nonfinality, while phrases such as “[w]e conclude” or

announcing “the position of the [agency]” indicate

that the agency has reached a final decision. Tax

Analysts v. IRS (Tax Analysts II), 294 F.3d 71, 81

(D.C. Cir. 2002). Other kinds of evidence, including

agency declarations or depositions in connection with

FOIA litigation, may also be relevant to this inquiry,

but a document’s textual clues, rather than officials’

post-hoc justifications, are more reliable indicators.

Id. at 81 (rejecting government’s post-hoc

“characterize[ation]” of the documents at issue for the

purposes of the Exemption 5 inquiry). 5

Finally, courts evaluate a document’s impact, to see

whether its operative effect suggests decision or

deliberation. The government maintains that this

factor centers on whether a record has a “binding

effect” or a “binding legal force.” Br. for Pet’rs 20, 30,

Though it is not at issue in this case, another factor often

relevant to the Exemption 5 inquiry is whether a particular

document has become a reflection of an agency’s effective legal

or policy position, either through informal agency practice or

self-conscious agency adoption—even if it were once

predecisional and deliberative. See, e.g., ACLU v. NSA, 925 F.3d

at 598. The logic behind that rule, encompassed by the so-called

“working law” and “adoption” inquiries, is based on this Court’s

decision in Sears, which observed that the FOIA was in no small

part intended to “prevent the creation of secret law.” 421 U.S. at

138 (quotation marks omitted); see 5 U.S.C. § 552(a)(2)

(requiring affirmative disclosure of various types of agency

records, including “final opinions” and “statements of policy and

interpretations which have been adopted by the agency”); see

also, e.g., Coastal States, 617 F.2d at 869 (explaining that the

FOIA does not allow agencies to “promulgate[] a body of secret

law” that is “actually appl[ied]” as “precedent” but is “protect[ed]

behind a label” such as “[t]entative”).

31, 34–35. It is true that an agency record with

“binding” effect presents an unusually simple case for

disclosure under Exemption 5. That is because

withholding such records would serve no purpose

under the FOIA, as such a document does not contain

“the ideas and theories which go into the making of

the law” but “the law itself, and as such, should be

made available to the public” lest an agency develop

“secret law.” Sterling Drug, Inc. v. FTC, 450 F.2d 698,

708 (D.C. Cir. 1971). But the converse is not true: the

fact that a document is not formally binding does not

mean that it is automatically deliberative for

purposes of Exemption 5. See Tax Analysts II, 294

F.3d at 81; see also Coastal States, 617 F.2d at 859–

60. Instead, the relevant inquiry is whether the

document has an “operative effect.” Grumman, 421

U.S. at 186–87 & n.24.

The government incorrectly asserts that in

Grumman, this Court “specifically contrasted legally

binding documents with a draft or ‘recommendation.’”

Br. for Pet’rs 33 (quoting Grumman, 421 U.S. at 186–

87). The Grumman Court analyzed whether

Exemption 5 protected reports drafted by “Regional

Boards” that could “investigate and recommend”

whether a government contractor had received

excessive profits but could not decide that question,

an authority reserved for another agency, the

“Renegotiation Board,” 421 U.S. at 185. The Court

concluded that Regional Board reports were

deliberative and predecisional. Id. at 186. But in

explaining why, the Grumman Court never used the

word “binding.” And the word it did employ—

“operative”—has a significantly different meaning.

Compare “Binding,” Black’s Law Dictionary (11th ed.

2019) (“having legal force to impose an obligation,”

“requiring obedience”), and “Binding,” Cambridge

Dictionary, https://perma.cc/RH6C-589B (“that cannot

be legally avoided or stopped”), with “Operative,”

Black’s Law Dictionary (11th ed. 2019) (“[b]eing in or

having force or effect”), and “Operative,” Cambridge

Dictionary, https://perma.cc/XR78-48PJ (“working or

being used”). The Court asked whether an agency

record had “operative effect,” i.e., whether it had a

substantive effect on another agency or a person, or

whether it was merely the “recommendation of any

agency staff member whose judgment has earned the

respect of a decisionmaker.” Grumman, 421 U.S. at

186–87 & n.24.

Courts must pay special attention to the “operative

effect” of an advising agency’s record when assessing

documents in an inter-agency process. In determining

whether an advising agency’s opinion effectively

constrains or meaningfully dictates a course of action

for the receiving agency, courts should ask, among

other things, whether the record speaks on a matter

within the authoring agency’s independent regulatory

authority and expertise, or on a matter outside those

realms. This follows from the relevance, in the intraagency context, of “the nature of the decisionmaking

authority vested in the office or person issuing the

disputed document(s).” Arthur Andersen, 679 F.2d at

258; cf. Schlefer, 702 F.2d at 238 (although the Chief

Counsel of the Maritime Administration lacked formal

decisionmaking power, “[i]n the end, the Chief Counsel

decides questions of statutory interpretation”); Coastal

States, 617 F.2d at 859–60, 867 (holding that regional

counsel’s legal opinions were not deliberative; as

experts in the law, their advice had “operative effect”

and was typically followed by “non-legal staff”).

Such multi-factor tests may not offer a “bright

line,” but they are often necessary, and courts have

shown that they are fully competent to apply them.

the

Fourth

Amendment

concepts

“reasonableness” and “reasonable suspicion,” both of

which call for the ultimate multi-factor test—“the

totality of the circumstances,” see Kansas v. Glover,

140 S. Ct. 1183, 1191 (2020); Illinois v. Wardlow, 528

U.S. 119 (2000)—the “deliberative process privilege”

is not susceptible to a bright-line rule. But that

hardly means it is unmanageable. Just as police have

been able to work with the concept of reasonableness

and reasonable suspicion in effecting seizures, so

government officials are able, with reasonable

reliability, to anticipate whether the documents they

prepare are deliberative or decisional. As with

reasonable suspicion, so with deliberative process,

many instances will clearly fall on one or the other

side of the line. 6 There will be close cases, but that is

inescapable, and the multi-factor test here focuses on

the key issue: Is the document predecisional, or does

it announce a decision?

Moreover, a functional test serves an important

FOIA interest by preventing the manipulation of

labels, the provision of self-serving descriptions, or

the withholding of formalities in order to game the

statute and avoid disclosure. For decades, the lower

courts have agreed that “simply designating a

document as a ‘draft’ does not automatically make it

privileged under the deliberative process privilege.”

6 This Court has often endorsed multifactor tests. See, e.g., Dietz

v. Bouldin, 136 S. Ct. 1885, 1894 (2016) (discussing multi-factor

test for determining whether prejudice should prevent a district

court from recalling a discharged jury); Cty. of Maui v. Haw.

Wildlife Fund, 140 S. Ct. 1462, 1476 (2020) (discussing multifactor test for determining when a permit is required under the

Clean Water Act, and explaining that sometimes “there are too

many potentially relevant factors applicable to factually different

cases for this Court now to use more specific language”).

Brennan Ctr. for Justice at N.Y.U. Sch. of Law v.

DHS, 331 F. Supp. 3d 74, 96 (S.D.N.Y. 2018)

(quotation marks omitted); accord Arthur Andersen,

679 F.2d at 257 (an agency’s “designation of . . .

documents . . . as ‘drafts’ does not end the inquiry”

under Exemption 5, because “document[s] identified

as a ‘draft’ [are not] per se exempt”). The real

question is whether such a document is actually

“deliberative in nature.” Arthur Andersen, 679 F.2d

at 258 (quotation marks omitted). And to answer it,

courts look to the details of the “individual document

and the role it plays in the administrative process.”

Animal Legal Def. Fund, Inc. v. Dep’t of Air Force, 44

F. Supp. 2d 295, 299 (D.D.C. 1999) (citing Coastal

States, 617 F.2d at 867)). If a document “does not

reveal an agency’s mode of formulating or revealing

policy-implicating judgment, Exemption 5 does not

protect it from disclosure.” Larson v. DOS, 2005 WL

3276303, at *24 (D.D.C. Aug. 10, 2005), aff’d, 565

F.3d 857 (D.C. Cir. 2009). The government asks for

clarity—but if that clarity comes in the form of a rule

that says anything labeled “draft,” or that lacks a

signature, is protected, it will undermine the FOIA’s

overriding purpose. See, e.g., 112 Cong. Rec. 13,031

(1966) (statement of Rep. Rumsfeld), reprinted in

Subcomm. On Admin. Prac. and Proc. of the Comm.

on the Judiciary, 93rd Cong., Freedom of Information

Act Source Book, at 70 (1974) (“[This] bill will make it

considerably more difficult for secrecy-minded

bureaucrats to decide arbitrarily that the people

should be denied access to information on the conduct

of Government. . . .”). 7

In the Exemption 5 analysis, an agency cannot protect nondeliberative material through self-conscious application of

“label[s].” Coastal States, 617 F.2d at 869. Yet agencies

throughout the government have misused the deliberative

III. Because the Services’ 2013 biological

opinions

announced

the

agencies’

considered judgment regarding a concrete

question firmly within their regulatory and

scientific purview, the opinions are not

deliberative and cannot be withheld under

Exemption 5.

A. The court of appeals properly applied the

relevant factors to the biological opinions.

The court of appeals properly applied the above

factors to the records at issue here, and determined

that because they represented the final decision of the

process privilege to avoid the requirements of FOIA, including

by making documents appear more informal or less “final” than

the decisions they reflect. In 2014, the Second Circuit criticized

the Department of Justice for failing to identify and disclose a

sixteen-page DOJ white paper that the agency had labeled a

“draft,” even though the document represented DOJ’s operative

legal analysis of the government’s “targeted killing” program.

See N.Y. Times Co. v. DOJ, 756 F.3d 100, 110 & n.9 (2d Cir.

2014). Similarly, officials at the State Department reportedly

developed strategies for “prospectively shield[ing] documents

from disclosure, such as by marking them as involving the

‘deliberative process.’” See Laura Meckler, Hillary Clinton’s

State Dep’t Staff Kept Tight Rein on Records, Wall St. J., May

19, 2015, https://perma.cc/C263-6D6X. More broadly, a

congressional investigation found that the Department of

Homeland Security had used Exemption 5 “inappropriately and

excessively to avoid releasing embarrassing material,” even

though the information was neither deliberative nor predecisional.

See Staff of H. Comm. on Oversight and Gov’t Reform, 112th

Cong., A New Era of Openness? How and Why Political Staff at

DHS Interfered with the FOIA Process, at 81–86 (2011),

https://perma.cc/3Q3D-VQXZ; see also Staff of H. Comm. on

Oversight and Gov’t Reform, 114th Cong., FOIA Is Broken, at

10–14 (2016), https://perma.cc/DBY7-T3U9 (describing repeated

misuse of the deliberative process privilege by the Federal

Communications Commission).

Services on an issue squarely within the Services’

authority to decide, they were not exempt from

disclosure under the FOIA. The court carefully assessed

the opinions’ function in the context of the

administrative process through which they were

generated, giving proper weight to the independent

authority of the Services with respect to the

determinations made in the documents at issue. See 16

U.S.C. § 1536 (describing the Services’ role in the

consultation process under the Endangered Species Act

(“ESA”), 16 U.S.C. §§ 1531–1544); 50 C.F.R. § 402.14

(describing the Services’ biological assessments); see

also Br. for Resp’t 7–11 (describing the statutory and

regulatory scheme in greater detail). In making that

assessment, the court examined the factual record, and

took account of how the records under consideration

were created. Because the records reflected the

Services’ decision on the EPA’s proposed rule, and did

not reveal the deliberative processes either of the

Services or the EPA, the court properly concluded that

the records were not privileged. They were “created by

a final decision-maker” and “represent[ed] 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.” Pet. App. 19a.

The EPA’s subsequent consideration of the opinions did

not transform the Services’ decisional documents into

“pre-decisional” documents. Id.

First, the court properly recognized that the

Services’ opinions did not simply lay out options for

the EPA, but had operative effect, constraining the

EPA’s actions thereafter and causing it to adopt a

new course. See Br. for Resp’t 22–27. In so doing—

and regardless of whether the Ninth Circuit was

correct to call the drafting of those opinions “final

agency actions” for the purposes of administrative

law, see Pet. App. 19a—the court properly recognized

that the Services are capable of issuing decisional

records in their own right. See 5 U.S.C. § 551(1)

(defining “agency” as “each authority of the

Government of the United States, whether or not it is

within or subject to review by another agency”). Here,

in drafting the opinions, the Services were

performing their statutorily mandated function to

determine whether the first version of the EPA’s

water-cooling-intake rule was “likely to jeopardize the

continued existence,” or “result in the destruction or

adverse modification of habitat,” of any endangered

or threatened species. 16 U.S.C. § 1536(a)(2); 50

C.F.R. § 402.14(a); see Pet. App. 3a–4a. As the court

concluded, “these opinions, created pursuant to an

ESA Section 7 formal consultation, contain the final

conclusions by the final decision-makers—the

consulting Services—regarding whether a proposed

regulation will harm protected species and habitat.”

Pet. App. 18a (emphasis added).

Second, the court considered the Services’

relationship to the EPA in the context of the interagency process. Between 2011 (when the EPA issued

its proposed rule in the Federal Register, see Nat’l

Pollutant Discharge Elimination System, 76 Fed.

Reg. 22,174 (Apr. 20, 2011)) and 2014 (when the EPA

issued a final rule in the same publication, see Nat’l

Pollutant Discharge Elimination System, 79 Fed.

Reg. 48,300 (Aug. 15, 2014)), the Services were not

simply contributing tentative or preliminary advice

or recommendations to the EPA. When the Services

produced the 2013 opinions, the question before them

was not whether some ever-evolving EPA rule would

put endangered species in biological jeopardy—it was

whether the version of the rule that the EPA had

prepared and submitted for the Services’ review

would do so. That was the question placed before

them by the statute. And that was the question the

Services answered, conclusively, with its opinions.

They were not advising EPA on what its answer

ought to be; they were providing the answer that the

Services—and no one else—are statutorily authorized

to provide. Moreover, the answer the Services gave

was not merely loose “advice” or an abstract

“recommendation” by a coordinate agency or official,

but an application of the agency’s statutorily

recognized scientific judgment, based in fact,

research, and experience, to a concrete EPA proposal.

On that question, the Services’ answer is

determinative, and the EPA has no authority to

revise the Services’ assessment.

Third, the court correctly relied on the contents of

the opinions in justifying its conclusion as to their

non-deliberative character. As the court explained,

the opinions “do not contain line edits, marginal

comments, or other written material that expose any

internal agency discussion about the jeopardy

finding.” Pet. App. 25a. They were not “prepared by

low-level officials,” id., nor do they “contain any

insertions or writings reflecting input from lower

level employees,” id.. Indeed, the opinions explicitly

“state [that] they were prepared on behalf of the

entire agency and represent that agency’s opinion.”

id.; see also Pet. App. 19a (explaining that the

December 9, 2013 biological opinion incorporated

“final edits” from, and was ready to be signed by, the

high level Services official “who was responsible for

overseeing and administering ESA consultations”).

The opinions’ contents refute the notion that they

“contain merely tentative findings.” Pet. App. 25a.

And the surrounding context of how the agencies

were treating these opinions confirms all of this: the

Services were preparing to “roll out” the opinions and

publish them in the administrative record, id.

(cleaned up), and one opinion had already “received

final edits from a senior official and was just awaiting

his autopen signature,” id. 8

The Ninth Circuit also looked to the text of the

documents to determine that they would not reveal

the Services’ (much less the EPA’s) internal

deliberations. As it concluded:

[The records] do not reveal more about the

internal deliberative process that the

Services went through before issuing their

joint May 2014 no jeopardy opinion than

what the Services themselves have already

disclosed during this litigation: that the

initial proposed regulation resulted in final

drafts of jeopardy opinions in December

2013, that the EPA received portions of those

opinions and proposed a revised regulation

at some point after that, and that the

Services ultimately issued a no jeopardy

opinion for that revised, proposed regulation.

Id. at 26a. And the court further concluded that the

opinions do not “reveal either the Services’ internal

deliberative processes that led to reaching those

opinions or the EPA’s internal deliberative process

that resulted in revising the draft regulation.” Id.

Finally, the court properly assessed the opinions’

operative effect. As it explained, “the Services’ own

8 The government emphasizes that agency declarations prepared

in this litigation demonstrate the deliberative status of the

opinions. See, e.g., Br. for Pet’rs 8. But the court was correct to

place heavier weight on its evaluation of the opinions

themselves and the context of their creation than on self-serving

post-hoc declarations.

account indicates that the EPA made changes to its

proposed regulations after December 2013—that is,

after both Services’ jeopardy opinions were completed

and partially transmitted to the EPA.” Pet. App. 19a–

20a. Under the relevant statute, “if the Services

conclude that an agency action is likely to jeopardize

listed species,” the Services and EPA must proceed to

the next step of the regulatory process: discussing and

developing “reasonable and prudent alternative[s].”

16 U.S.C. § 1536(b)(3)(A); 50 C.F.R. § 402.14(g)(5).

And that is exactly what they did. JA 37–38, 68, 102.

B. The government’s counterarguments are

unpersuasive.

The government’s arguments that the court of

appeals erred in evaluating the biological opinions

are wrong.

First, the government insists that rather than

evaluate the opinions’ deliberative character with

reference to the Services, this Court should do so with

reference to the EPA because the EPA later considered

the Services’ 2013 biological jeopardy opinions in

deciding what rule to implement. See Br. for Pet’rs

36–38. The government attempts to reframe the 2013

opinions as subordinate pieces in a long-running and

iterative rulemaking. But the fact that there was one

final EPA rule does not mean that everything that

preceded it, within and outside the EPA, reflected the

EPA’s deliberative process. See, e.g., Vaughn, 523

F.2d at 1145 (rejecting government’s argument that

an “entire process of management appraisal, evaluation,

and recommendations for improvement is a seamless

whole, that it is in its entirety a deliberative process,

and that it is this process which the Government

seeks to protect as an ongoing continuous affair”

because to accept it “would be interpreting Exemption 5

to protect too much”). Documents that reveal the EPA’s

deliberation would be protected by Exemption 5. But

a document created by the Services, and reflecting its

considered judgment, reflects nothing about the

EPA’s deliberation. And because the opinions reflect

the Services’ final assessment of the biological

jeopardy consequences of the EPA’s proposed rule,

they also do not reveal anything about the Services’

own deliberative process.

It is true that the EPA changed its rule before

issuing its final version as a matter of administrative

law. But that did not affect the decisional character of

the Services’ independent assessment of the EPA’s

proposed rule. The EPA had no authority to alter or

revise the Services’ jeopardy assessment. And when

the EPA issued its second (and later final) rule, it

triggered a distinct statutory consultation process

with the Services—and the Services subsequently

issued another definitive biological opinion, this time

on the EPA’s new proposal. Pet App. 39a–41a; see 50

C.F.R. §402.14(m)(2) (discussing termination of an

individual ESA “consultation”). Both of the Services’

opinions were decisional as to the Services. The 2013

biological opinions are the Services’ ultimate and

operative views on the particular question presented

to them at the time. The mere fact that the EPA then

considered that conclusion as part of its own

deliberation does not make the Services’ considered

judgment deliberative, just as an agency’s

consideration of an existing agency rule in developing

policy would not make the rule itself “deliberative.”

Second, the government’s argument that “an

agency’s draft document can[not] lose its privilege

when the proposed agency action under consideration

is abandoned or modified,” Br. for Pet’rs 36, is beside

the point. The Ninth Circuit did not conclude, and

Respondents do not argue, that the Services’ 2013

opinions suddenly “lost” their deliberative character

and “became” final when the EPA changed its rule.

The opinions were not deliberative in the first place,

when they were conveyed to the EPA, because they

contained the Services’ ultimate analysis of the EPA’s

first proposed rule. See Pet. App. 26a (explaining that

the opinions “are not ‘earlier draft’ versions of the no

jeopardy opinion from May 2014” because “that later

opinion addressed a new and different proposed rule”).

Third, the government’s warnings that affirming

the court of appeals would chill agency decisionmaking make little sense. The government argues

that “[i]f agency employees believed that their drafts

and recommendations could cease to be privileged

simply because a new ‘version’ of the proposal under

review might be developed, then some employees

might stop providing their best advice, and agency

deliberations ‘would be the poorer as a result.’” Br. for

Pet’rs 38 (quoting Sears, 421 U.S. at 150). But the

officials who generated the 2013 biological opinions

were not engaged in the provision of tentative advice

that could be taken or rejected; they were preparing a

document that they understood would reflect the

Services’ final assessment of the particular impact of

an EPA proposed rule that itself was public. See Pet.

App. 26a. Because the opinions reflect the Services’

final assessment, they do not reflect its deliberative

process. And because the EPA had nothing to do with

creating the opinions, their release certainly does not

in any way reveal the EPA’s deliberations.

Fourth, the government notes the opinions are

marked “draft,” and argues that a “discussion draft

does not become final unless and until an official with

authority makes a decision to adopt the draft.” Br. for

Pet’rs 40 (emphasis removed). As discussed above,

the “draft” label is not determinative, and is easily

manipulable. Moreover, the question is not whether

the 2013 biological drafts were final records—it is

whether their contents were predecisional and

deliberative and therefore deserving of protection

under Exemption 5. There is a critical difference

between a final decision and a final record—a

difference the government’s reliance on the “draft”

label seeks to obscure. For example, even if a record

is not dressed up on agency letterhead or signed with

an autopen, if its contents reflect an agency’s final

decision, it is not entitled to protection—because it is

only the deliberations that Exemption 5 is meant to

protect. The government seeks to raise the bar for

disclosure under the FOIA by expanding Exemption 5

to include everything but “final” opinions or

memoranda. But this Court rejected that notion in

Sears, and reiterated that rejection in Grumman. See

421 U.S. at 184 n.21 (discussing Sears, 421 U.S. at

153–54). The relevant question is: What legitimately

deliberative characteristics of the opinions would

withholding justifiably protect?

Applying the Exemption 5 privilege to the Services’

2013 opinions would not serve any statutory purpose.

We already know the opinions reached a conclusion—

that the 2011 EPA rule would cause biological

jeopardy—that is well within the Services’ expertise,

as Congress recognized in the ESA. We know that

portions of the Services’ 2013 biological jeopardy

opinions were transmitted to the EPA, see Pet. App.

26a–27a, and that these portions affected the EPA,

leading it to issue a revised rule, see 79 Fed. Reg. at

48,381. And not only do we know that the Services

did not find the same problem with the EPA’s revised

rule, but we know why. See id. (attaching Services’

2014 no jeopardy biological opinion to the Federal

biological jeopardy opinions would not have been

chilled by the knowledge that the opinion would

become public.

If all it takes to render an agency record

deliberative is to identify a decision, either within or

outside the agency, that involved consideration of the

record at issue, Exemption 5 will swallow the rule of

presumptive disclosure. In that scenario, even a final

and formal memorandum from the Secretary of State

about the human rights situation in a foreign country

might be withheld as deliberative simply because the

Department of Defense subsequently relied on it to

make a decision about troop movements abroad, or

the Treasury Department used it to inform an

economic sanctions decision. Yet the Secretary of

State’s memo would not reveal anything about the

deliberations of either the Defense Department or the

Treasury Department—and therefore, while the

latter two agencies’ deliberations might be protected,

the State Department memo itself would not be.

Similarly, if the government were correct, a definitive

report from the Department of Transportation about

the future of the nation’s highways might be withheld

simply because the Department of Agriculture

subsequently used it in evaluating the movement of

commodities. And it would even be open to the

government to argue that, because the President

oversees the entire executive branch, any agency

record, however authoritative and decisional from the

agency’s perspective, is merely tentative and

deliberative with respect to him, and therefore falls

within Exemption 5’s ambit.

These examples reveal the fallacy of the

government’s principal argument. It contends that

because the EPA itself reviewed the Services’

opinions in arriving at its final rule, the opinions are

deliberative. But the Services’ opinions reveal

nothing about the EPA’s own deliberations. And

because they reflect the Services’ final assessment of

the proposed rule, they also reveal nothing about the

Services’ deliberative process. The court of appeals

correctly ordered their disclosure.

CONCLUSION

The court of appeals’ judgment should be affirmed.

Respectfully submitted,

David D. Cole

Counsel of Record

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

915 5th Street, NW

Washington, D.C. 20005

(212) 549-2611

dcole@aclu.org

Brett Max Kaufman

Ashley Gorski

Patrick C. Toomey

Jennesa Calvo-Friedman

Alexia Ramirez

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street, 18th Floor

New York, NY 10004

Shilpi Agarwal

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION OF

NORTHERN CALIFORNIA

39 Drumm Street

San Francisco, CA 94111

Anne L. Weismann

Nikhel S. Sus

CITIZENS FOR RESPONSIBILITY AND

ETHICS IN WASHINGTON

1101 K Street, NW, Suite 201

Washington, DC 20005

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.