925 F.3d 1000
9th Cir.2019Background
- EPA proposed and finalized Section 316(b) cooling-water-intake regulations (2011 proposed; final rule published Aug. 15, 2014). The Services (FWS and NMFS) engaged in ESA §7 consultation with EPA and prepared biological opinions and RPAs addressing impacts on listed species.
- In Dec. 2013 both Services completed draft "jeopardy" biological opinions and draft RPAs addressing the November 2013 version of the EPA rule; portions were transmitted to EPA. After EPA revised the rule (Mar. 2014), Services issued a joint final "no jeopardy" biological opinion (May 19, 2014).
- Sierra Club filed FOIA requests (Aug. 2014) seeking records generated during the consultation. The Services withheld many documents under FOIA Exemption 5 (deliberative process privilege).
- District court ordered production of 12 of 16 contested records (some redactions). Services appealed; Ninth Circuit reviewed the disputed documents in camera and evaluated whether each was both pre-decisional and deliberative.
- Ninth Circuit affirmed in part and reversed in part: it held several December 2013 draft biological opinions and accompanying instructional/statistical materials were not exempt (must be disclosed), but reversed as to two Dec. 2013 RPAs and an April 2014 NMFS draft jeopardy opinion, which it found exempt. Case remanded for segregability analysis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether contested documents are exempt under FOIA Exemption 5 (deliberative-process privilege) | Sierra Club: documents are final or factual and not protected; should be produced | Services: documents are inter-/intra- agency deliberative materials prepared during §7 consultation and thus pre-decisional and deliberative | Court: examined each document de novo; some are non-exempt, some exempt (see below) |
| Pre-decisional status of Dec. 2013 draft jeopardy biological opinions | Sierra Club: drafts represent final views on the Nov. 2013 rule and are not pre-decisional as to those opinions | Services: drafts pre-date and fed into later processes; thus pre-decisional | Court: Dec. 2013 drafts were final views about the Nov. 2013 rule (not pre-decisional as to that opinion) and therefore not protected; but April 2014 draft was pre-decisional as to the May 2014 opinion |
| Deliberative character of accompanying statistics/instructional materials and March 2014 RPA | Sierra Club: materials are factual/instructional and not deliberative; March 2014 RPA is final | Services: materials reflect internal deliberation and advice; RPAs are draft recommendations | Court: statistical and instructional documents and March 2014 RPA are not deliberative and must be produced; December 2013 RPAs are deliberative and exempt |
| Scope of Exemption 5 for inter-agency drafts exchanged during ESA §7 consultation | Sierra Club: consultation-produced drafts are public when they reflect final agency conclusions or factual material | Services: inter-agency drafts are within Exemption 5 parity and can be withheld to protect candid deliberation | Court: inter-agency nature is only a threshold; documents still must be both pre-decisional and deliberative—some met that test (Dec. 2013 RPAs, Apr. 2014 NMFS draft) and others did not |
Key Cases Cited
- NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (Sup. Ct.) (Exemption 5 equates FOIA privileges with civil discovery privileges)
- Renegotiation Bd. v. Grumman Aircraft Eng’g Corp., 421 U.S. 168 (Sup. Ct.) (Exemption 5 treats inter-agency and intra-agency memoranda similarly)
- Bennett v. Spear, 520 U.S. 154 (Sup. Ct.) (biological opinion is agency action)
- Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1 (Sup. Ct.) (documents must fall within privileges that would apply in litigation)
- 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 protects candid internal discussion)
- Nat’l Wildlife Fed’n v. U.S. Forest Serv., 861 F.2d 1114 (9th Cir.) (harm from disclosure of working drafts that reveal decision-makers’ mental processes)
- Kowack v. U.S. Forest Serv., 766 F.3d 1130 (9th Cir.) (narrow application of deliberative-process privilege)
- Cooling Water Intake Structure Coal. v. EPA, 898 F.3d 173 (2d Cir.) (review of the final cooling-water-intake rule)