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Trump-appointed Justice Amy Comey Barrett’s first opinion, supported by 6 other justices, upholds applying the Freedom of Information Act’s “deliberative process” exemption to email exchanges between the Environmental Protection Agency (EPA) and two other federal agencies while mulling a 2014 rule adoption.

The rule proposal, and discussions about it, occurred in 2014 while Obama was still president. The emails concerned biological opinions, and the rule involved regulation of water intake structures. Environmental groups sought more information than the agencies were willing to release to them about the “deliberative process” over the proposed rule within the agencies.

The exemption has been described as follows:

“The deliberative process privilege … protects ‘documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.’ The exemption is intended to preserve the quality of agency decisions by ‘encourage[ing] open, frank discussions on matters of policy,’ ‘protect[ing] against premature disclosure of proposed policies before they are finally adopted,’ and ‘protect[ing] against public confusion that might result from disclosure of reasons and rationale that were not, in fact, ultimately the grounds for an agency’s action.'”

(Source here; footnotes omitted.) That pretty much explains both what’s covered, and the rationale behind the exemption, so I don’t think I need to say any more on those topics. If someone submits a FOIA request, an agency invokes the exemption, and the requester takes the agency to court, the issue usually is whether the exemption applies to the specific documents at issue.

That’s what happened in this case. “The deliberative process privilege protects the draft biological opinions at issue here because they reflect a preliminary view — not a final decision — about the likely effect of the EPA’s proposed rule on endangered species,” Barrett wrote. According to CNN, “She said the drafts by the agencies never had final approval, hadn’t been sent to the EPA and were ‘predecisional and deliberative.'” The two dissenting justices thought the drafts reflected final decisions. (Read story here.)

This is pedestrian stuff, which makes me wonder why the Supreme Court accepted the case.

To find an answer, I checked with Scotusblog.com, which said Barrett rejected “the Sierra Club’s argument that the documents embodied a final policy conclusion and therefore should not be covered by the privilege,” because, “Although the documents were the ‘last word’ about the proposed rule, they do not represent final agency decision-making because the Environmental Protection Agency reconsidered the proposed rule and never issued it …. The draft opinions, Barrett wrote, ‘were not last because they were final; they were last because they died on the vine.'” (Read their report here.)

That’s an interesting twist. The government may have pressed the case because it wanted the Supreme Court to clarifify how the exemption applies to reports or drafts that are last in time, but never finalized because the rule or action was dropped by the agency. The problem with this for advocacy groups and private citizens is that it’s a way to hide lobbying pressure in cases where the lobbying didn’t bear fruit. The decision is a big deal, because it exempts a whole universe of documents relating to any decision that was never made. And government bureaucrats, of course, are famous for making “non-decisions.” The First Rule of Survival in bureaucracy is, “Do nothing.”

But it’s not hard to figure out why the opinion was assigned to Barrett. This is the sort of case a Chief Justice gives to a newbie for writing practice.

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