April 19, 2021

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Justice Amy Coney Barrett’s first majority written opinion limits reach of FOIA

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Barrett’s debut majority opinion came in a case that was the first she heard as a justice, back on November 2.

The case at hand concerned FOIA, a law designed to allow the public greater access to records from the government. It mandates the disclosure of documents held by a federal agency unless they fall within certain exceptions.

On Thursday, the court narrowed the category of documents subject to release, dealing a loss to those seeking more government transparency and who argue that FOIA was meant to lift the curtain and give the public insight into a government’s decision-making process.

The Sierra Club and other groups had brought the challenge, seeking more information about an Environmental Protection Agency 2014 rule concerning the operation of cooling water intake structures and whether they would hurt protected species.

Specifically, the groups sought records related to the US Fish and Wildlife Service’s and National Marine Fisheries Service’s consultations with the EPA. Although the services turned over thousands of documents, they invoked the “deliberative process privilege” for some draft opinions.

“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. She said the drafts by the agencies never had final approval, hadn’t been sent to the EPA and were “predecisional and deliberative.”

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The confirmation of Barrett, nominated by President Donald Trump to fill the seat of the late Justice Ruth Bader Ginsburg, was rushed so that she could take the bench before the presidential election. She was confirmed on October 26, a little over a month after Ginsburg’s death, by a Senate vote of 52-48.

Barrett garnered the necessary majority for her opinion on the case, but Justices Stephen Breyer and Sonia Sotomayor dissented.

Breyer questioned whether the documents at issue really functioned as drafts, writing that he thought they reflected final decisions and should “normally fall outside, not within,” the exemption.

2021-03-04 14:50:13

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