Court Favors Deliberative-Process Privilege Protections over FOIA Transparency Goals
This post was originally published on SCOTUSblog. Reprinted under Creative Commons license CC BY-NC-ND 3.0.
Notwithstanding the Freedom of Information Act's primary goal of promoting transparency in government decision-making, the Supreme Court on Thursday ruled by a 7-to-2 vote that the public policy of facilitating agency candor in exercising its expertise in preliminary agency deliberations can outweigh such transparency and accountability concerns. Justice Amy Coney Barrett delivered the 11-page opinion, her first majority opinion since joining the court in October. It was a natural debut given that the case, U.S. Fish and Wildlife Service v. Sierra Club, was the first oral argument that Barrett heard after joining the bench.
The case presented the question of whether FOIA's deliberative-process privilege exempts from disclosure certain documents prepared during a statutorily required interagency consultation process between the U.S. Fish and Wildlife Service and National Marine Fisheries Service (collectively, "the services") and the Environmental Protection Agency.
In the interest of transparency, FOIA provides the public with a right to access federal records, but exempts certain records from disclosure, including those that would be privileged against discovery in civil litigation. These include records that fall under the deliberative-process privilege, which promotes candor …
On January 21, 2009, President Obama issued a Presidential Memorandum that I’m hopeful will be the start of undoing much of the excessive secrecy practiced by the previous administration. The memorandum, established that the Freedom of Information Act (FOIA) “should be administered with a clear presumption: In the face of doubt, openness prevails.”
A recent CPR report, By the Stroke of the Pen: Seven Executive Orders to Launch the Obama Agenda, had recommended that President Obama take this exact step. The report also recommends additional actions that would undo other policies adopted by the Bush administration that made government less transparent. Another Presidential Memorandum, Transparency and Open Government, sets the stage for additional steps to be taken, although it does not commit the administration to adopt any specific policies to foster more transparency.
While Congress created exemptions to FOIA disclosure, it also for the most part …
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