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 REPORTERS COMMITTEE FOR
FREEDOM OF THE PRESS AND 28 MEDIA ORGANIZATIONS
IN SUPPORT OF RESPONDENT
Bruce D. Brown
Counsel of Record
Katie Townsend
Caitlin Vogus
Adam A. Marshall
Gunita Singh
THE REPORTERS COMMITTEE FOR
FREEDOM OF THE PRESS
1156 15th St. NW, Suite 1020
Washington, D.C. 20005
bbrown@rcfp.org
(202) 795-9300
Counsel for Amici Curiae
i
TABLE OF CONTENTS
Table of Authorities..................................................... ii
Interest of Amici Curiae ............................................. 1
Summary of the Argument ......................................... 2
Argument ..................................................................... 5
I.
Overuse and abuse of the deliberative
process privilege is undermining the
purpose of FOIA. ……………………………….5
A. Agencies’ overuse of the deliberative
process privilege has harmed the public’s
right to know……………………………………..8
B. Congress has recognized and sought to
curb agencies’ abuse of the deliberative
process privilege………………………………. 14
II.
The Services’ interpretation of what
constitutes “predecisional” material would
enable further abuse of the deliberative
process privilege……………………………….20
Conclusion ................................................................. 22
ii
TABLE OF AUTHORITIES
Cases
Am. Ctr. for Law & Justice v. Dep’t of Justice, 392 F.
Supp. 3d 100 (D.D.C. 2019) ................................... 10
Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d
854 (D.C. Cir. 1980) ........................................... 3, 21
Ctr. for Investigative Reporting v. Customs & Border
Prot., 436 F. Supp. 3d 90 (D.D.C. 2019) .................. 3
Dep’t of Air Force v. Rose, 425 U.S. 352 (1976) .......... 5
Dep’t of Interior v. Klamath Water Users Protective
Ass’n, 532 U.S. 1 (2001) ........................................... 5
Dep’t of Justice v. Julian, 486 U.S. 1 (1988) .............. 5
Dep’t of Justice v. Landano, 508 U.S. 165 (1993) ...... 5
Dep’t of Justice v. Reporters Comm. for Freedom of
the Press, 489 U.S. 749 (1989) ............................. 2, 5
Dep’t of Justice v. Tax Analysts, 492 U.S. 136 (1989)..
................................................................................... 5
Dep’t of State v. Ray, 502 U.S. 164 (1991) .................. 5
F.B.I. v. Abramson, 456 U.S. 615 (1982) .................... 5
John Doe Agency v. John Doe Corp., 493 U.S. 146
(1989) ........................................................................ 5
Judicial Watch, Inc. v. Dep’t of State, 285 F. Supp. 3d
249 (D.D.C. 2018) ................................................... 10
Mills v. Alabama, 384 U.S. 214 (1966)....................... 2
Milner v. Dep’t of Navy, 562 U.S. 562 (2011) ............. 5
Nat’l Ass’n of Home Builders v. Defenders of Wildlife,
551 U.S. 644 (2007) ................................................ 21
NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214
(1978) .................................................................. 5, 21
NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975)
................................................................................. 20
Statutes
5 U.S.C. § 552 .................................................... passim
iii
Other Authorities
114 Cong. Rec. S1496 (Mar. 15, 2016).................. 4, 17
2016 U.S.C.C.A.N. 321 .............................................. 17
Chris Good, The Solyndra Scandal: What It Is and
Why It Matters, The Atlantic (Sept. 15, 2011),
https://perma.cc/3YY3-8U3F ............................... 8, 9
CJ Cairamella, VA Hides Names of Hospitals Where
Vets Died from Delays, The Wash. Free Beacon
(Mar. 28, 2014), https://perma.cc/Q8H4-33WR .... 12
Dell Cameron, FCC Says Releasing ‘Jokes’ It Wrote
About Ajit Pai Colluding with Verizon Would
‘Harm’ Agency, Gizmodo (Feb. 6, 2018),
https://bit.ly/2WwizA8 ........................................... 11
Department of Justice Guide to the Freedom of
Information Act, Exemption 5 (Aug. 6, 2019),
https://perma.cc/7CJA-RMUC ............................. 6, 7
Department of Justice, Data, www.foia.gov/data.html
............................................................................... 7, 8
Ensuring Transparency Through the Freedom of
Information Act (FOIA): Hearing Before the
Committee on Oversight and Government Reform,
House of Representatives, 114th Cong. (2015),
https://perma.cc/S8RW-GCE5 ............................... 16
Eric Lichtblau, Nazis Were Given ‘Safe Haven’ in
U.S., Report Says, N.Y. Times (Nov. 13, 2010),
https://perma.cc/8U4V-U5DK ................................ 13
FOIA Improvement Act of 2016, Pub. L. No. 114–
185, 130 Stat. 538 (2016) ............................. 6, 16, 19
FOIA Oversight and Implementation Act of 2015,
H.R. Rep. No. 114–391……………………………3, 18
Freedom of Information Act and Amendments of 1974
(P. L. 93–502) Source Book: Legislative History,
Texts, and Other Documents, Joint Comm. Report
(1975), http://perma.cc/HAM4-Y8A9 ....................... 6
iv
Freedom of Information Act Source Book: Legislative
Materials, Cases, Articles, Subcomm. on Admin.
Practice and Procedure of the Comm. on the
Judiciary (1974), https://perma.cc/TFV9-JYNC ..... 6
Gerald Wetlaufer, Justifying Secrecy: An Objection to
the General Deliberative Privilege, 65 Ind. L.J. 845
(1990) ...................................................................... 19
H. Res. 406, 106th Cong. (2000) ............................... 11
H.R. 653, 114th Cong. (2016) ………………..………. 18
In Hunt for Nazis, an Incomplete History, N.Y.
Times, https://perma.cc/T3T9-23CF ...................... 14
Joe Stephens and Carol Leonnig, White House
Pushed $500 Million Dollar Loan to Solar
Company Now Under Investigation, The
Washington Post (Sept. 13, 2011),
https://perma.cc/MH3J-U9RR ................................. 9
John Dunbar, Associated Press, Voted Items at FCC
Are Secret, Agency Says, Fox News (Jun. 18, 2008),
https://perma.cc/SX6F-BARU ................................ 12
Justice Department Censors Nazi-Hunting History,
The National Security Archive (Nov. 13, 2010),
https://perma.cc/KH2S-NW6Q .............................. 13
Katie Townsend & Adam A. Marshall, Striking the
Right Balance: Weighing the Public Interest in
Access to Agency Records under the Freedom of
Information Act, in Troubling Transparency (David
E. Pozen & Michael Schudson, eds., 2018) ............. 8
Marian Wang, What’s Happening With That Solar
Company Scandal? Here’s Our Guide on Solyndra.,
ProPublica (Sept. 15, 2011),
https://perma.cc/ZG8M-U5C3 .................................. 9
Matthew Mosk, et al., Emails: Obama White House
Monitored Huge Loan to ‘Connected’ Firm, ABC
News (Sept. 13, 2011), https://perma.cc/5FSL-8Q9R
................................................................................... 9
v
Michael S. Schmidt, Hillary Clinton Used Personal
Email Account at State Dept., Possibly Breaking
Rules, N.Y. Times (Mar. 2, 2015),
https://perma.cc/5N8Y-UL2U ................................ 10
Nate Jones, Document Friday: Someone from the
Department of State thought that punishing
Pakistan for “providing refuge and assistance” to
Osama bin Laden was “a bunch of crap!!”,
Unredacted (May 13, 2011),
https://perma.cc/W6T8-SRNK ............................... 11
Nate Jones, The Next FOIA Fight: The B(5)
“Withhold It Because You Want To” Exemption,
Unredacted (Mar. 27, 2014),
https://perma.cc/2QP7-RYCY .................................. 4
Ryley Graham, What is the ‘Deliberative Process’
Privilege? And Why is it Used So Often to Deny
FOIA Requests?, Reporters Committee for Freedom
of the Press (Apr. 30, 2020), https://perma.cc/H42C777U.......................................................................... 4
S. Rep. No. 813 (1965) ................................................. 5
Shilpa Narayan, Proper Assertion of the Deliberative
Process Privilege: The Agency Head Requirement,
77 Fordham L. Rev. 1183 (2008) ........................... 19
Solyndra-FOIA-Final-Responsive-Documents,
DocumentCloud (last accessed May 29, 2020),
https://bit.ly/2OEendf............................................... 9
U.S. House of Rep., Comm. on Oversight and Gov’t
Reform, A New Era of Openness? How and Why
Political Staff at DHS Interfered with the FOIA
Process (Mar. 2011), https://perma.cc/UVS3-8HFN
................................................................................. 15
U.S. House of Rep., Comm. on Oversight and Gov’t
Reform, FOIA Is Broken: A Report (Jan. 2016),
https://perma.cc/5AMZ-Y9CA ................................ 16
vi
U.S. House of Rep., Comm. on Gov’t Reform—
Minority Staff, Secrecy in the Bush Administration
(Sept. 14, 2004), https://perma.cc/N6F5-5FU7 ..... 15
1
INTEREST OF AMICI CURIAE1
Amici curiae are the Reporters Committee for
Freedom of the Press, Atlantic Media, Inc., Cable
News Network, Inc., The Center for Investigative
Reporting (d/b/a Reveal), The Center for Public
Integrity, Dow Jones & Company, Inc., First
Amendment Coalition, First Look Media Works, Inc.,
Gannett Co., Inc., International Documentary Assn.,
Investigative Reporting Workshop at American
University, Los Angeles Times Communications LLC,
The Media Institute, MPA - The Association of
Magazine Media, National Geographic Partners,
National Press Club Journalism Institute, The
National Press Club, National Press Photographers
Association, National Public Radio, Inc., The New
York Times Company, The News Leaders Association,
News Media Alliance, POLITICO LLC, Quartz Media,
Inc., Radio Television Digital News Association,
Society of Environmental Journalists, Society of
Professional Journalists, Tully Center for Free
Speech, and The Washington Post (collectively,
“amici”).
Amici file this brief in support of Respondent
Sierra Club, Inc. Amici are news organizations or
1 Pursuant to Supreme Court Rule 37.6, counsel for amici curiae
state that no party’s counsel authored this brief in whole or in
part, no party or party’s counsel made a monetary contribution
intended to fund the preparation or submission of this brief, and
no person other than the amici curiae, their members, or their
counsel made monetary contributions intended to fund the
preparation or submission of this brief. Petitioners have
provided written consent to the filing of this amici brief.
Respondent has provided blanket consent to the filing of all amici
briefs in this case.
2
organizations that represent the interests of
journalists and the press. Amici and the reporters
and news outlets for which they advocate rely on the
Freedom of Information Act, 5 U.S.C. § 552 (“FOIA” or
“the Act”), to obtain government records, which they
use to inform the public about “[o]fficial information
that sheds light on an agency’s performance of its
statutory duties.” Dep’t of Justice v. Reporters Comm.
for Freedom of the Press, 489 U.S. 749, 750 (1989).
FOIA is a critical tool for amici and the press at large,
whose role is to serve “as a powerful antidote to any
abuses of power by government officials and as a
constitutionally chosen means for keeping officials . . .
responsible” and accountable. Mills v. Alabama, 384
U.S. 214, 219 (1966).
Amici have a strong interest in ensuring that
agencies invoking the deliberative process privilege to
withhold records under FOIA Exemption 5, 5 U.S.C. §
552(b)(5), do so in a manner consistent with the plain
text and purpose of the Act.
The Court’s
interpretation of the deliberative process privilege in
this case bears directly on amici’s ability to gather
records and disseminate information of public
interest.
SUMMARY OF THE ARGUMENT
Respondent seeks certain records from
Petitioners U.S. Fish & Wildlife Service and National
Marine Fisheries Service (collectively, the “Services”)
pursuant to FOIA. The records at issue convey the
Services’ conclusion that particular action proposed
by the Environmental Protection Agency (“EPA”)
would result in jeopardy to species protected by the
3
Endangered Species Act.
The Services denied
Respondent access to those records, contending they
are subject to the deliberative process privilege and
are exempt from disclosure under FOIA Exemption 5,
5 U.S.C. § 552(b)(5).
Amici agree with the Court of Appeals that the
records at issue are not exempt from disclosure under
Exemption 5 because they are neither predecisional
nor deliberative.2 See, e.g., Br. for Resp. (“Resp.’s Br.”)
at 19–21; Pet. App. 18a–20a; 21a–27a; see also Coastal
States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866
(D.C. Cir. 1980) (holding that records may be withheld
under FOIA’s deliberative process privilege only if
each contested document is both “predecisional” and
“deliberative”). Amici write to provide additional
information and context about the federal
government’s use and abuse of the deliberative
process privilege, which is routinely invoked to hide
embarrassing
and
politically
inconvenient
information, even when the disclosure of such records
is of fundamental importance to the public. Indeed,
the abuse of the deliberative process privilege has
become so pervasive that it is now frequently referred
to as the “withhold it because you want to” exemption.
See, e.g., Ctr. for Investigative Reporting v. Customs &
Border Prot., 436 F. Supp. 3d 90, 105 (D.D.C. 2019)
(citing to H.R. Rep. 114-391, a Congressional report
expressing “concern regarding overuse” of the
deliberative process privilege, noting it is referred to
as the “withhold it because you want to” exemption);
Nate Jones, The Next FOIA Fight: The B(5) “Withhold
2 Amici agree with Respondent’s argument that the records at
issue in this case are not deliberative. See, e.g., Resp.’s Br. at 31–
34.
4
It Because You Want To” Exemption, Unredacted
(Mar. 27, 2014), https://perma.cc/2QP7-RYCY; Ryley
Graham, What Is the ‘Deliberative Process’ Privilege?
And Why Is It Used So Often to Deny FOIA Requests?,
Reporters Committee for Freedom of the Press (Apr.
30, 2020), https://perma.cc/H42C-777U.
In arguing that the records are exempt from
disclosure, the Services urge this Court to apply a
sweeping, practically limitless interpretation of what
constitutes predecisional material. The Services
argue that the records at issue are necessarily
predecisional merely because they have labeled them
as drafts. See, e.g., Pets.’ Br. at 5. This categorical
approach is not only contrary to the Act, see Resp.’s
Br. at 21–22, but will invite further overuse of the
deliberative process privilege.
As Senator John Cornyn stated in connection
with the Act’s most recent amendments, FOIA’s
purpose is to “build on what our Founding Fathers
recognized hundreds of years ago: that a truly
democratic system depends on an informed citizenry
to hold their leaders accountable.” 114 Cong. Rec.
S1496 (Mar. 15, 2016) (statement of Sen. Cornyn).
Because FOIA’s purpose to ensure an informed
citizenry is, as Congress has recognized, already
stymied by rampant overuse of the deliberative
process privilege, the Services’ arguments should be
rejected. For the reasons set forth herein, amici urge
the Court to affirm the Court of Appeals’ judgment
below.
5
ARGUMENT
I.
Overuse and abuse of the deliberative
process privilege is undermining the
purpose of FOIA.
FOIA
makes
government
records
presumptively open to the public in order to “ensure
an informed citizenry, vital to the functioning of a
democratic society, needed to check against
corruption.” NLRB v. Robbins Tire & Rubber Co., 437
U.S. 214, 242 (1978). As this Court has observed,
FOIA reflects “a general philosophy of full agency
disclosure unless information is exempted under
clearly delineated statutory language.” Dep’t of Air
Force v. Rose, 425 U.S. 352, 360 (1976) (citing S. Rep.
No. 813, at 3 (1965)). That framework serves the
important function of ensuring the public knows
“what the Government is up to[.]” Dep’t of Justice v.
Reporters Comm. for Freedom of the Press, 489 U.S.
749, 780 (1989).
This Court has long recognized that, in
furtherance of FOIA’s structure and function, the
statute’s exemptions to disclosure are to be construed
narrowly. See, e.g., Rose, 425 U.S. at 361; F.B.I. v.
Abramson, 456 U.S. 615, 630 (1982); Dep’t of Justice
v. Julian, 486 U.S. 1, 8 (1988); John Doe Agency v.
John Doe Corp., 493 U.S. 146, 152 (1989); Dep’t of
Justice v. Tax Analysts, 492 U.S. 136, 151 (1989); Dep’t
of State v. Ray, 502 U.S. 164, 180 (1991); Dep’t of
Justice v. Landano, 508 U.S. 165, 181 (1993); Dep’t of
Interior v. Klamath Water Users Protective Ass’n, 532
U.S. 1, 8 (2001); Milner v. Dep’t of Navy, 562 U.S. 562,
565 (2011). This principle of narrow construction is
especially important in the context of the deliberative
6
process privilege because Congress has not defined it,3
unlike other FOIA exemptions,4 and because of its
rampant use and abuse by executive branch agencies
to withhold information from the public. Indeed, in
recognition of the seriousness and breadth of the
problem, Congress has amended the Act in recent
years to curtail agencies’ use of the deliberative
process privilege.
When Congress enacted FOIA in 1966, it
sought to achieve a “workable balance” between the
public’s right to be informed and the government’s
legitimate interests in keeping some information
secret. See generally Freedom of Information Act
Source Book: Legislative Materials, Cases, Articles,
Subcomm. on Admin. Practice and Procedure of the
Comm.
on
the
Judiciary
(1974),
26–27,
https://perma.cc/TFV9-JYNC.
In the Act’s early years, the balance between
secrecy and openness tilted largely in favor of
disclosure to the public; government agencies
reported denying fewer than 1 percent of all FOIA
requests in full or in part. See Freedom of Information
Act and Amendments of 1974 (P. L. 93–502) Source
Book: Legislative History, Texts, and Other
Documents, Joint Comm. Report (1975), 104–5,
http://perma.cc/HAM4-Y8A9 (reporting 2,195 full or
3 In the 2016 amendments to FOIA, Congress imposed a 25-year
sunset on the privilege but did not otherwise define it. See FOIA
Improvement Act of 2016, Pub. L. No. 114–185, 130 Stat. 538
(2016).
4 Indeed, the Department of Justice itself describes Exemption
5’s text as “opaque language.” Department of Justice Guide to
the Freedom of Information Act, Exemption 5 at 1 (Aug. 6, 2019),
https://perma.cc/7CJA-RMUC.
7
partial denials in response to 254,637 requests
between July 1967 and July 1971).
In the decades that followed, however, agencies
steadily began withholding substantially more
information. In fiscal year 2008, agencies asserted a
FOIA exemption to deny, in full or in part,
approximately 22 percent of all FOIA requests. See
Department of Justice, Data, www.foia.gov/data.html
(reporting 124,828 full or partial denials in fiscal year
2008, 21.59 percent of the 578,172 requests processed
that year). By 2019, that percentage had doubled;
agencies asserted an exemption to withhold
information in response to almost 44 percent of all
requests. See id. (reporting 385,347 full or partial
denials in fiscal year 2019, 43.8 percent of the 877,966
requests processed that year).
Agencies withhold massive swaths of records
each year pursuant to Exemption 5.5 In 2018, for
example, agencies invoked Exemption 5 a total of
61,135 times to withhold government records
requested under the Act. See id. In 2019, that rose to
74,050 invocations. Id. In other words, of the full or
partial denials of records across the federal
government in 2019, Exemption 5 was cited
approximately 19 percent of the time. The growth in
the use of that exemption by some agencies is
particularly worrisome: in the mere seven years that
the Consumer Financial Protection Bureau has been
in existence, for example, its use of Exemption 5 has
5 The federal government does not delineate between privileges
in reporting data under Exemption 5, but the deliberative
process privilege is the most commonly invoked. Department of
Justice Guide to the Freedom of Information Act, Exemption 5,
supra note 4, at 14.
8
almost tripled. See id. (reporting 99 uses in FY2019
over 435 requests processed, versus 35 uses in FY2013
over 209 requests). During the same time period,
Exemption 5’s use at the Federal Bureau of
Investigation rose more than five-fold. See id. (608
uses in FY2019 versus 117 uses in FY2013).
The tremendous increase in agency reliance on
FOIA’s exemptions to withhold records, and on
Exemption 5 in particular, has generated “widespread
concern among journalists, academics, lawyers, and
the general public that FOIA’s ‘workable balance’ has
tilted so far in favor of government secrecy that . . .
the [A]ct is failing to serve its core purpose.” Katie
Townsend & Adam A. Marshall, Striking the Right
Balance: Weighing the Public Interest in Access to
Agency Records under the Freedom of Information Act,
in Troubling Transparency 227 (David E. Pozen &
Michael Schudson, eds., 2018).
A. Agencies’ overuse of the deliberative process
privilege has harmed the public’s right to know.
Excessive invocation of the deliberative process
privilege by agencies obstructs the ability of
journalists and the public to gather important
information about the conduct of government.
Consider, for example, the Department of Energy’s
$535 million loan to Solyndra, a solar-panel
manufacturer, under the green-infrastructure
provisions of President Obama’s major stimulus bill in
2009. In 2011, Solyndra defaulted on the loan, unable
to pay it back to the government—and, ultimately,
U.S. taxpayers. Chris Good, The Solyndra Scandal:
What It Is and Why It Matters, The Atlantic (Sept. 15,
2011), https://perma.cc/3YY3-8U3F.
9
Emails later obtained by reporters showed that
“OMB officials privately said they felt pressured to
approve the loan prematurely.” Id. According to news
reports, “The Obama White House tried to rush
federal reviewers for a decision on a nearly halfbillion-dollar loan” to Solyndra “so Vice President
Biden could announce the approval at a September
2009 groundbreaking for the company’s factory.” Joe
Stephens and Carol Leonnig, White House Pushed
$500 Million Dollar Loan to Solar Company Now
Under Investigation, Wash. Post (Sept. 13, 2011),
https://perma.cc/MH3J-U9RR; see also Matthew
Mosk, et al., Emails: Obama White House Monitored
Huge Loan to ‘Connected’ Firm, ABC News (Sept. 13,
2011), https://perma.cc/5FSL-8Q9R.
News outlet ProPublica reported on multiple
“red flags” concerning Solyndra and OMB officials’
concern that “they were being rushed” to approve the
loan “without adequate time to assess the risk to
taxpayers.” Marian Wang, What’s Happening with
That Solar Company Scandal? Here’s Our Guide on
Solyndra.,
ProPublica
(Sept.
15,
2011),
https://perma.cc/ZG8M-U5C3. But when ProPublica
submitted a FOIA request to the Department of
Energy to learn more about whether and to what
extent the Obama Administration backed greenenergy companies like Solyndra without conducting
the requisite due diligence, it received records riddled
with redactions pursuant to Exemption 5.
See
Solyndra-FOIA-Final-Responsive-Documents,
DocumentCloud (last accessed May 29, 2020),
https://bit.ly/2OEendf (displaying a heavily redacted
production of records, contributed by Michael Grabell
of ProPublica). These redactions obscured entire
10
emails and portions of emails throughout a 706-page
production, keeping large swaths of agency
communications about Solyndra hidden from view.
Agencies have used the deliberative process
privilege to hide embarrassing and politically
inconvenient records. For example, reporting from
The New York Times that former Secretary of State
Hillary Clinton exclusively used a private email
server for her government work, see Michael S.
Schmidt, Hillary Clinton Used Personal Email
Account at State Dept., Possibly Breaking Rules, N.Y.
Times (Mar. 2, 2015), https://perma.cc/5N8Y-UL2U,
spawned multiple FOIA lawsuits in which the
privilege has been used to successfully shield records.
The Department of Justice successfully invoked the
privilege to withhold “talking points prepared for
Attorney General Lynch pertaining to her decision . . .
to accept the recommendation of the Federal Bureau
of Investigation (FBI) that its investigation of
Secretary Clinton’s use of a personal email system
during her time as Secretary of State be closed.” Am.
Ctr. for Law & Justice v. Dep’t of Justice, 392 F. Supp.
3d 100, 105 (D.D.C. 2019) (cleaned up); see also
Judicial Watch, Inc. v. Dep’t of State, 285 F. Supp. 3d
249, 251 (D.D.C. 2018) (holding deliberative process
privilege may shield records pertaining to, inter alia,
requests from Secretary Clinton or her staff for
approval to use an iPad or iPhone for official
government business).
Use of the deliberative process privilege to
withhold embarrassing material ranges from the
farcical to the deadly serious. On one end, it has been
cited by the FCC to withhold drafts of the script for a
skit presented at the Federal Communications Bar
11
Association annual dinner. Dell Cameron, FCC Says
Releasing ‘Jokes’ It Wrote About Ajit Pai Colluding
with Verizon Would ‘Harm’ Agency, Gizmodo (Feb. 6,
2018), https://bit.ly/2WwizA8. The agency claimed
that release of drafts of the skit would “harm the
[FCC’s] deliberative process[.]” Id. (follow link to
response letter).
In another particularly piffling example, the
State Department used the deliberative process
privilege to redact an employee’s unprofessional
comment made on a House Resolution. In 2000, the
House of Representatives introduced a resolution
“[e]xpressing the sense . . . that Pakistan should be
designated as a state sponsor of terrorism.” H. Res.
406, 106th Cong. (2000).
The resolution was
motivated, in part, by what the House perceived as the
“Pakistani Government’s demonstrated reluctance to
halt the use of its soil for terrorist organizations[,]”
including that it “provided refuge and assistance to
Osama Bin Laden[.]” Id. When the National Security
Archive obtained a copy of the resolution from the
Department of State through FOIA, it bore a
redaction pursuant to the deliberative process
privilege;
after
successfully
administratively
appealing, the unredacted document revealed that
State had concealed a handwritten annotation to the
House Resolution that stated simply, “What a bunch
of crap!!” Nate Jones, Document Friday: Someone
from the Department of State thought that punishing
Pakistan for “providing refuge and assistance” to
Osama bin Laden was “a bunch of crap!!”, Unredacted
(May 13, 2011), https://perma.cc/W6T8-SRNK.
On the other end of the spectrum,
embarrassing records withheld under the deliberative
12
process privilege can have serious consequences for
public health. In 2014, the Department of Veterans
Affairs (“VA”) “withheld the names of hospitals where
19 veterans died because of delays in medical
screenings,”
claiming
the
information
was
“preliminary.” CJ Cairamella, VA Hides Names of
Hospitals Where Vets Died from Delays, The Wash.
Free Beacon (Mar. 28, 2014), https://perma.cc/Q8H433WR. The denial, made in response to a FOIA
request from the Tampa Tribune, sparked outrage
and prompted Senator Bill Nelson to demand answers
from the VA: “Veterans across this country have a
right to know about their local VA facility’s record of
care . . . They cannot be adequately served if they do
not fully understand their benefits and in some cases,
are not fully informed about the care they need.” Id.
The deliberative process privilege has been
wielded to withhold final agency decisions affecting
billions of dollars in commerce. In 2008, the FCC cited
the privilege to withhold a document setting forth
rules for an upcoming spectrum auction that the
Commission adopted in a 4-1 vote. See John Dunbar,
Associated Press, Voted Items at FCC Are Secret,
Agency Says, Fox News (Jun. 18, 2008),
https://perma.cc/SX6F-BARU. That auction would
later raise nearly $20 billion. Id. Although the FCC
rules were approved in a public vote, the agency
claimed that they were “predecisional” and refused to
release them, arguing there were subsequent
“editorial changes” that allowed them to keep the
voted-on document secret. Id.
In
another
concerning
incident,
the
Department of Justice used the deliberative process
privilege to withhold a report about the United States
13
government’s Nazi-hunting operations, as well as its
role in creating a “safe haven” for Nazis and their
collaborators after World War II. The press and the
public were eager to review the report to understand
the actions taken by U.S. officials in the aftermath of
the terror of Nazi Germany. See Eric Lichtblau, Nazis
Were Given ‘Safe Haven’ in U.S., Report Says, N.Y.
Times (Nov. 13, 2010), https://perma.cc/8U4V-U5DK.
Despite the fact the DOJ finalized the report in 2006,
it refused to release it until 2010, after it was sued by
the National Security Archive for unlawfully denying
a FOIA request for it. Id. The Justice Department
claimed that the report “was never formally completed
and did not represent [the agency’s] official findings,”
id., citing “numerous factual errors and omissions,”
but declining to explain what they were. Id.
Even after the Justice Department was forced
to process the report for release under FOIA, it
redacted large portions of it, claiming they were
protected by the deliberative process privilege. See
Justice Department Censors Nazi-Hunting History,
The National Security Archive (Nov. 13, 2010),
https://perma.cc/KH2S-NW6Q. But when The New
York Times obtained an unredacted copy of the report,
it became clear that the DOJ’s redactions were being
employed to withhold embarrassing—and, in some
cases, shameful—matters that were nonetheless of
fundamental historical importance, such as:
•
References to what American officials knew
about the atrocities committed by Otto von
Bolschwing, a Nazi associate of Adolph
Eichmann, who had become a CIA asset;
14
•
Information about Arthur Rudolph, a German
Scientist who ran a slave labor camp and
went on to become a NASA scientist,
including allegations that he forced “slave
laborers to watch hangings[;]”
•
References to the Department of Justice’s
belief that there was “definitive proof” that
the Swiss had accepted Nazi gold and that the
Truman Administration had underestimated
the size of the gold purchases; and
•
Passages regarding misconduct allegations
an appellate judge raised against prosecutors
in 1994 in the case against Ohio autoworker
John Demjanjuk, who was alleged to be
responsible for war crimes and crimes against
humanity in Nazi extermination camps.
In Hunt for Nazis, an Incomplete History, N.Y. Times,
https://perma.cc/T3T9-23CF (comparing redacted and
unredacted portions of report). If not for the Times’
reporting, this information may have been hidden
forever by the deliberative process privilege.
B. Congress has recognized and sought to curb
agencies’ abuse of the deliberative process
privilege.
In recent years, Congress has held hearings to
understand and address agencies’ increasing use of
FOIA’s exemptions to justify government secrecy. In
doing so, Congressional leaders have paid special
attention to agencies’ abuse of Exemption 5 and the
deliberative process privilege. For example, in 2004,
the minority staff of the House Committee on
Government Reform, Special Investigations Division,
15
issued a report that explored the “consistent pattern”
of FOIA being “undermined” given “repeated . . .
expan[sion]” of exemptions to withhold information.
U.S. House of Rep., Comm. On Gov’t Reform—
Minority Staff, Secrecy in the Bush Administration at
iii (Sept. 14, 2004), https://perma.cc/N6F5-5FU7. In
one cited example, the report explains that when The
Wilderness Society sued the Department of the
Interior (DOI) under FOIA for records about the
inventory of federal lands eligible for protection as
wilderness areas, the DOI attempted to withhold
records under the deliberative process privilege that
were neither predecisional nor deliberative. Id. at 23.
In 2011, a report by staff for Darrell Issa, thenChairman of the United States House of
Representatives Committee on Oversight and
Government Reform, compared redacted emails,
obtained through FOIA by the Associated Press from
the Department of Homeland Security, with
unredacted versions the Committee requested. See
U.S. House of Rep., Comm. on Oversight and Gov’t
Reform, A New Era of Openness? How and Why
Political Staff at DHS Interfered with the FOIA
Process 81–87 (Mar. 2011), https://perma.cc/UVS38HFN. The report found that emails had been
withheld from the AP under Exemption 5 not because
they were predecisional and deliberative, but simply
because they were “embarrassing to the Department’s
political appointees.” Id. at 84
In 2015, the House Committee on Oversight
and Government Reform held a two-day hearing on
problems with the FOIA process, including the
overuse of exemptions. See Ensuring Transparency
Through the Freedom of Information Act (FOIA):
16
Hearing Before the Committee on Oversight and
Government Reform, House of Representatives, 114th
Cong. 114-80 (2015), https://perma.cc/S8RW-GCE5.
Thereafter, then-Chairman Jason Chaffetz released a
report titled, simply, “FOIA Is Broken.” U.S. House of
Rep., Comm. On Oversight and Gov’t Reform, FOIA Is
Broken: A Report (Jan. 2016), https://perma.cc/5AMZY9CA.
Chairman Chaffetz’s report found that agencies
“overuse and misapply exemptions, withholding
information and records rightfully owed to FOIA
requesters.” Id. at iii. It specifically emphasized
Exemption 5, noting it is “frequently misapplied.” Id.
at 10. In one example highlighted in the report, the
FCC
withheld
a
clearly
“post-decisional
communication” under the deliberative process
privilege—a statement reflecting the agency’s official
position on a policy matter, the language of which had
already been “approved” for a speech. Id. at 10. The
report further explained that some “[m]embers of the
media” had completely abandoned the FOIA process
as a newsgathering tool “because delays and
redactions made the request process wholly useless
for reporting to the public.” Id. at ii. According to the
report, one freelance journalist who contacted the
Committee stated: “I often describe the handling of
my FOIA request as the single most disillusioning
experience of my life.” Id.
Congress took action to correct some of the most
egregious overuses of exemptions by passing S.337,
the FOIA Improvement Act of 2016. See Pub. L. No.
114–185, 130 Stat. 538 (2016). As Senator Charles
Grassley stated in support of the bill, S.337 was
intended to address a “culture of government secrecy”
17
that “has served to undermine FOIA’s fundamental
promise.” 114 Cong. Rec. S1494 (Mar. 15, 2016),
https://perma.cc/KQW7-655R (statement of Sen.
Grassley).
The legislative history of S.337 makes clear
that Congress was concerned, in particular, with
agency overuse of the deliberative process privilege.
As the Senate Report states:
There is a growing and troubling trend
towards relying on these discretionary
exemptions to withhold large swaths of
Government information, even though
no harm would result from disclosure.
For
example,
according
to
the
OpenTheGovernment.org 2013 Secrecy
Report,
Federal
agencies
used
Exemption
5,
which
permits
nondisclosure of information covered by
litigation privileges such as the attorneyclient privilege, the attorney work
product doctrine, and the deliberative
process privilege, more than 79,000
times in 2012—a 41% increase from the
previous year.
2016 U.S.C.C.A.N. 321, 323. The House Report for
H.R. 653, a parallel bill in the House of
Representatives, likewise explained:
Federal agencies most commonly invoke
[Exemption 5] to withhold records
protected by attorney client privilege,
attorney work product privilege, and the
deliberative process privilege. The
18
deliberative process privilege is the most
used privilege and the source of the most
concern regarding overuse . . . . The
deliberative process privilege has
become the legal vehicle by which
agencies
continue
to
withhold
information
about
government
operations.
FOIA Oversight and Implementation Act of 2015,
H.R. Rep. No. 114–391 at 10, https://perma.cc/A5UQCLJF.6
The 2016 amendments to FOIA impose new,
additional requirements that must be met before
records may be withheld under one of FOIA’s
discretionary exemptions, including Exemption 5.
Specifically, the amendments impose a “foreseeable
harm” requirement, prohibiting a government agency
from withholding information that falls within the
scope of an exemption unless it “reasonably foresees
that disclosure would harm an interest protected by”
that exemption, or disclosure is otherwise prohibited.
5 U.S.C. § 552(a)(8). Congress also imposed a 25-year
limitation on the deliberative process privilege. Id. §
552(b)(5).
Questions exist about whether the government
can, in fact, demonstrate harm from the release of
records that only fall within the scope of the
deliberative process privilege.
Regarding the
H.R. 653, the “FOIA Oversight and Implementation Act of
2016,” was a similar effort by the House of Representatives to
reform FOIA that passed that chamber but was eventually
overtaken by S.337.
See H.R. 653, 114th Cong. (2016),
https://perma.cc/2EEG-NKJZ.
6
19
privilege, critics have noted that there is a serious
“lack of empirical evidence to support its value in
administrative governance.” Shilpa Narayan, Proper
Assertion of the Deliberative Process Privilege: The
Agency Head Requirement, 77 Fordham L. Rev. 1183,
1192 (2008). One author has written that when
executive branch officials leave office,
they immediately sell to the highest
bidder, for personal profit, their selfserving account of what went on in the
behind-the-scenes deliberations in which
they may have played some part. [. . .]
Thus, it is common knowledge that
everyone who really matters will, at the
earliest possible moment, publish his
account of the deliberations in which he
was involved. It is equally well-known
that those officials are, even as they
engage
in
those
deliberations,
generating contemporaneous records, for
use in connection with that publication.
Gerald Wetlaufer, Justifying Secrecy: An Objection to
the General Deliberative Privilege, 65 Ind. L.J. 845,
888 (1990). However, “[n]o one, least of all those who
have not yet left office, criticizes the practice in terms
of the oft-recited deliberative rationale.” Id.
The FOIA request at issue in this case is not
governed by the 2016 amendments because it was
submitted before their effective date. See Pub. L. No.
114–185, 130 Stat. 544–45 (2016). Nevertheless, the
plain text of the Act, as recently amended, makes
20
clear Congress’s intent to curb agencies’ abuse of the
deliberative process privilege.
II.
The Services’ interpretation of what
constitutes “predecisional” material
would enable further abuse of the
deliberative process privilege.
In this case, Respondent seeks jeopardy
opinions written by the Services in 2013 which convey
a conclusion that particular action proposed by the
EPA would result in jeopardy to species protected by
the Endangered Species Act, and was therefore
prohibited. Pet. App. 19a–20a. The Services insist
that because the jeopardy opinions at issue were “not
adopted or finalized” or “circulate[d] . . . in full to
EPA,” Pets.’ Br. at 21, those opinions are, by default,
predecisional for the purposes of the deliberative
process privilege and may be withheld, id. at 20–21.
That reading is a grave distortion of both the purpose
and intended application of FOIA.
Amici agree with Respondent that FOIA
requires that courts not look solely to the label
agencies attach to documents, but rather to their
function and substance when determining whether
records are predecisional. See Resp.’s Br. at 21–22;
49–51. Agencies do not have license to simply declare
a record “nonfinal” in order to withhold it under the
deliberative process privilege. FOIA requires that
courts conduct a functional, pragmatic inquiry, that
looks to the “force and effect” of the record instead of
its label. See, e.g., NLRB v. Sears, Roebuck & Co., 421
U.S. 132, 153 (1975).
21
The Services’ proffered interpretation of
“predecisional,” if accepted, also risks agencies’
development of “a body of secret law which it is
actually applying in its dealings with the public but
which it is attempting to protect behind a label.”
Coastal States, 617 F.2d at 869. This, too, is contrary
to FOIA’s purpose to foster an informed public “vital
to the functioning of a democratic society.” NLRB, 437
U.S. at 242; see also Resp.’s Br. at 28, 48–49.
The Services’ jeopardy opinions at issue here
have the force and effect associated with a final
agency action. See Nat’l Ass’n of Home Builders v.
Defenders of Wildlife, 551 U.S. 644, 652 (2007)
(explaining that when Fish & Wildlife Service and the
National Marine Fisheries Service reach a jeopardy
determination, the action-agency must abandon the
proposed action, modify it by adding further wildlife
protections, or seek a Cabinet-level exemption to move
forward on its proposed course). The Services had
concluded that the EPA’s proposed rule “in its thencurrent form was likely to cause jeopardy” to
endangered or threatened species and “negatively
impact their designated critical habitat.” Pet. App.
5a.
The records therefore “contain the final
conclusions by the final decision-makers—the
Services”—regarding whether the EPA’s proposed
Intake-Structures Rule, in its then-current form,
would jeopardize threatened and endangered species.
Pet. App. 18a; Resp.’s Br. at 13, 24. They are,
accordingly, not predecisional and are required to be
released under FOIA.
22
CONCLUSION
For the foregoing reasons, amici curiae
respectfully urge the Court to affirm the judgment of
the Court of Appeals.
Respectfully submitted,
Bruce D. Brown
Counsel of Record
Katie Townsend
Caitlin Vogus
Adam A. Marshall
Gunita Singh
REPORTERS COMMITTEE FOR
FREEDOM OF THE PRESS
1156 15th St. N.W., Suite
1020
Washington, D.C. 20005
bbrown@rcfp.org
(202) 795-9300
August 3, 2020
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.