Agencies’ Deliberative Process Documents Could Be Withheld Under Freedom of Information Act

Category: Client Update
Date: Feb 6, 2019 04:32 PM

In a case decided under the Federal Freedom of Information Act (FOIA), the Ninth Circuit Court of Appeals found that documents generated by the U.S. Fish and Wildlife Service (USFSW) and National Marine Fisheries Service (NMFS) were exempt from disclosure under the FOIA’s deliberative process privilege. 

In 2011, the Environmental Protection Agency (EPA) proposed new regulations governing cooling water intake facilities (facilities that draw water from U.S. lakes, streams, and some waterways to be used in the private manufacturing process).  As part of the rule-making process, the EPA consulted with the FWS and NMFS (the Agencies) regarding the potential impact of the new regulations on endangered species.  In early November 2014, the Agencies provided the EPA with a summary of what they believed the proposed rule would do, and the EPA responded with corrections.  The Agencies and the EPA exchanged further communications and documents during the rulemaking process.  The EPA’s final rule was published in March 2014. The Sierra Club then made an FOIA request, asking the Agencies for records generated during the rule-making process. When the Agencies declined, the Sierra Club sued.

The Ninth Circuit ordered disclosure of some documents but found that several items were protected by the Agencies’ “deliberative process privilege.” FOIA, like the California Public Records Act, requires broad disclosure of government documents. However, FOIA does not require disclosure of “inter-agency or intra-agency memorandums or letters” that come within the “deliberative process privilege.”  The privilege protects agency decisions by “ensuring that the frank discussion of legal or policy matters in writing, within the agency, is not inhibited by public disclosure.” To qualify for the privilege, documents must: 1) be generated by a government agency prior to the agency’s final decision on the issue reflected in the documents; and 2) must be deliberative. Applying this standard, the Ninth Circuit found that two categories of items the Sierra Club sought did not have to be disclosed.

First, the court found that the Agencies’ draft opinions that were created in November 2014 could remain secret. After reviewing the EPA’s proposed rule, the Agencies concluded that the rule would jeopardize species protected by the Endangered Species Act and their habitats, and proposed reasonable and prudent alternatives (RPAs) in the form of draft opinions.  The FWS generated multiple drafts of the RPA draft opinions. The court found that because the FWS RPA documents would reveal their “internal vetting process,” and were generated before the Agencies issued a formal opinion on the EPA regulations, they were not subject to disclosure. 

Second, the court found that a draft opinion the NMFS created in April 2014 that addressed the impact of a revised version of the EPA’s rule, and which was only circulated internally to the NMFS, was protected from disclosure.  The NMFS had prepared a subsequent opinion in May 2014 (also prior to the EPA’s final rule).  Reading the two opinions could reveal NMFS’s deliberations about the proposed rules, the court found.

Thus, the Ninth Circuit reversed the trial court’s order to disclose those categories of documents.

Sierra Club, Inc. v. United States Fish and Wildlife Service (9th Cir. 2018) 911 F.3d 967, 2018 WL 6713260.


California’s Public Record Act utilizes a balancing test to determine whether an agency’s withholding of documents that could reveal an agency’s deliberative process is appropriate.  An agency must show “that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” (Gov. Code section 6255 (a)).  Although the Sierra Club decision involved the FOIA, courts addressing CPRA matters could find the decision persuasive.

Contact Us

General Inquiries

Contact a Specific Office

Our Locations

Media Inquiries

Please contact Cynthia Weldon, Director of Marketing & Training, 800.981.2000.