March 15, 2021
Austin W. Manning
MGKF Litigation Blog
The Freedom of Information Act (“FOIA”) requires federal agencies to produce certain documents upon request to the general public unless one of nine exemptions applies. FOIA’s fifth exemption “protects from disclosure documents generated during an agency’s deliberations about a policy, as opposed to documents that embody or explain a policy that the agency adopts.” On March 4, 2021, in United States Fish and Wildlife Service et al. v. Sierra Club, Inc., No. 19-547, the Supreme Court of the United States held that draft biological opinions prepared by the U.S. Fish and Wildlife service (“FWS”) and National Marine Fisheries Service (“NMFS”) (collectively, the “Services”) fall within this deliberative process privilege exemption.
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