911 F.3d 967
9th Cir.2018Background
- EPA promulgated final regulations for cooling water intake structures (Aug. 2014) after consulting with FWS and NMFS under ESA §7; Services prepared draft biological opinions in Dec. 2013 (jeopardy findings) and later issued a joint no-jeopardy opinion in May 2014 addressing a revised March 2014 rule.
- Sierra Club submitted FOIA requests (Aug. 2014) to obtain records generated during the consultation, including draft biological opinions, RPAs, and species-specific mitigation/instructional documents.
- The Services withheld several records under FOIA Exemption 5 (deliberative process privilege); district court ordered production of 12 contested documents (partially or fully) and withheld 4 others; Services appealed.
- On de novo review, the Ninth Circuit assessed whether each document was both pre-decisional and deliberative (the two prongs required for Exemption 5 protection under Ninth Circuit precedent).
- Court held that some documents (Dec. 2013 draft jeopardy opinions and several statistical/instructional materials and the March 2014 RPA) were not both pre-decisional and deliberative and therefore must be disclosed; other documents (Dec. 2013 RPAs and April 2014 NMFS draft jeopardy opinion) were privileged and withheld; case remanded for segregability analysis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether contested documents are pre-decisional under Exemption 5 | Dec. 2013 drafts preceded the Services’ final May 2014 opinion and thus are pre-decisional | Drafts either were final views for the Services as to the November 2013 rule, or were part of inter-agency consultation and therefore pre-decisional | Split: Dec. 2013 jeopardy opinions and many accompanying docs were not pre-decisional (they reflected final views on a different rule); Dec. 2013 RPAs and April 2014 NMFS draft were pre-decisional |
| Whether documents are deliberative (reveal mental processes) | Draft opinions and related materials reveal internal deliberations and would chill candid inter-agency exchange | Many documents are final conclusions, factual summaries, or instructional guidance and do not expose deliberative mental processes | Held that only Dec. 2013 RPAs (FWS 279, 308) and April 2014 NMFS draft (NMFS 5427.1) were deliberative; others were not |
| Effect of inter-agency transmission on privilege | Transmission to EPA during consultation makes documents inter-agency memoranda and thus privileged | Inter-agency exchange alone does not guarantee privilege; context, finality, and whether document represents agency’s final view control analysis | Court: transmission is relevant to threshold inter-/intra-agency status but does not automatically make a document privileged; finality/context determine result |
| Remedy and remand obligations | Sierra Club sought immediate disclosure of non-privileged records | Services sought reversal to withhold records and requested remand for segregability if privileged portions exist | Court affirmed disclosure of specified records, reversed as to three withheld documents, and remanded for segregability analysis |
Key Cases Cited
- NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (Supreme Court) (Exemption 5 coextensive with civil discovery privileges; inter-/intra-agency parity)
- Renegotiation Bd. v. Grumman Aircraft Eng’g Corp., 421 U.S. 168 (Supreme Court) (Exemption 5 permits inter-agency advice to remain as protected as intra-agency advice)
- Bennett v. Spear, 520 U.S. 154 (Supreme Court) (biological opinions are final agency actions)
- Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1 (Supreme Court) (Exemption 5 requires the document be within the ambit of a judicially recognized privilege)
- Assembly of Cal. v. U.S. Dep’t of Commerce, 968 F.2d 920 (9th Cir.) (pre-decisional/deliberative test and narrow construction of FOIA exemptions)
- Maricopa Audubon Soc. v. U.S. Forest Serv., 108 F.3d 1082 (9th Cir.) (deliberative process privilege aims to protect candid internal discussion)
- Carter v. Dep’t of Commerce, 307 F.3d 1084 (9th Cir.) (burden on agency to show both pre-decisional and deliberative elements)
- Nat’l Wildlife Fed’n v. U.S. Forest Serv., 861 F.2d 1114 (9th Cir.) (working drafts and editorial comparisons can reveal deliberative process)