USFWS V. SIERRA CLUB: EXPANDING THE DELIBERATIVE PROCESS PRIVILEGE
Written by Kathleen Leuschen1
In United States Fish and Wildlife Service v. Sierra Club, Inc.,2 the U.S. Supreme Court held that the deliberative process privilege protected draft documents issued under the federal Endangered Species Act (ESA)3 from disclosure pursuant to the federal Freedom of I nformation Act (FOIA),4 reversing a decision by the Ninth Circuit Court of Appeal. The Supreme Court held that so long as the drafts are "predecisional," representing an agency’s early discussion about how to approach a future decision, then the deliberative process privilege protects them from disclosure. This holding will impact future public requests for information under FOIA, and may impact disclosure under other public records laws, like the California Public Records Act.5 It may also reduce cost and controversy for public agencies. Sierra Club represents the highest court’s underscoring of the importance of the policies underlying the privilege, which are to foster candor and innovation in internal public agency decisionmaking.
FOIA AND THE DELIBERATIVE PROCESS PRIVILEGE