Thread by @NicoletteGlazer

I have been delaying reading the #FOIA case from SCOTUS from 3-4. So nothing like spending your Sunday morning reading a decision you know is going to f*ck up a lot of your pending litigation & heck! Admin law practice as a whole, right? Well I did and shiiish a 🧵

Here is the link to the FWS v Sierra Club case supremecourt.gov/opinions/20pdf…
and yes! it is all about exemption 5 & specifically the deliberative process privilege. If you’ve done any immigration related FOIA, this is your “b5” stamped on blackouts on ~ 85% of the docs you received.

In her 1st dec ACB provides a map for agencies to hide their activities:
“It is not always self-evident whether a doc represents an agency’s final decision, but one thing is clear: A doc is not final solely because nothing else follows it. Sometimes a proposal dies on the vine”

But “die on the vine” observ that got some attention is nothing w/out her two additions in the actual trifecta:
“What matters, then, is not whether a doc is last in line, but whether it communicates a policy on which the agency has settled.”

And did agency see it as “final”

The emphasis is now on whether the agency is the final say (the Bennett rule) but w the addition of is the agency free to change their mind on the issue.

This is perhaps an aspect that troubles me because of the context of the case (2 agencies sending proposed ”draft opinions”

... in a regulated process. It may not impact other FOIA but it will have a helluva impact on immigration related #FOIAs where the different components of DHS communicate between themselves or with other agencies (i.e HSS).

What this decision is basically telling agencies is stamp “draft” on everything and add some notation or edits in the margins. In most DHS docs this will be a sure way for a district judge to allow govt to keep the redaction. Hell, district courts are sick on FOIAs

I meant * sick of FOIAs but now that I think about they probably do get sick *on* them also. 🤢

Yeah I know she added the “That is not to say that the label “draft” is determinative. As we have explained before, a court must evaluate the documents ‘in the context of the administrative process which generated them’.”

but read the application! All down to “subject to change”

Everything in admin agency decision-making is subject to change! It is just a way to hide most everything that is not
* the final version of policy/rule/guidance
* that is published

It leaves the bulk of historical record hidden. This will be absolut devastating in 2 contexts

First, anything the Stephen Miller kept in the ‘abomination’ cabinet and/or about the posed or unfinalized regs and EOs from the Trump administration will likely be kept forever redacted unless Congress acts.

Second, the OPLA citizenship determination opinions.

For the USC memo this is really bad: the internal process “contemplates further review by the agency after receipt of the draft, and with it, the possibility of changes to the biological opinion after the Services send the agency the draft.”

I think this may shield now not only

... the draft USC memos but the final ones OPLA generates when prompted by ICE or USCIS and when a claim for derivative citizenship is made. Grrrrr!

The bit about the interagency agreements for “post-circulation changes” will finds its ugly head in almost any DHS communication or email thread (the endless ccs... yeah they put them for a reason)

”Democracy dies in darkness”, not a concern for SCOTUS!

But back to the Sierra Club decision .... Disguised as “explanation” of real “precedents”, ACB does a number on the “operative effect” rule on finality: “While we have identified a decision’s ‘real operative effect’ as an in- dication of its finality, that reference is to the ...

... legal, not practical, consequences that flow from an agency’s action.”

When I first read this I was Oh shit! this will make a huge difference in APA cases, where finality of agency decision/policies/guidance is practically final, leaving nothing else for agency to do even ..

... where no legal consequences flow from it. If this get carried into the Bennett analysis, this could be really band in immigration APAs. Remains to be seen how courts will apply it.

This: “And even Sierra Club does not contend that any email or memorandum that has the effect of changing an agency’s course constitutes a final administrative decision.”

ooof!

Here is your new b5 framework, kids: ”To determine whether the privilege applies, we must evaluate not whether the drafts provoked a response from the [agency] but whether the Services treated them as final.”

But the deliberat process privilege is not FOIA creation, it’s borrowed concept: this is why this decis could be a lot more momentous that just a niche legal precedent. The majority re-calibrated the executive privilege as a whole.

Disclosure is in order at this point: will be venting about “draft of a draft”, sooo now is the time to jump off this thread unless you’re glutton for punishment and want to ruin your Sunday.

By emphasizing that the documents at issue were by lower level agency employees sending a truly predecisonal doc up the chain to start the review, the majority has introduced a “new” category of predecisional document “the draft of the draft”.

I simply do not understand the majority approach, considering that agencies have an obligation to disclose so much in the admin record (at least this is what I thought Overton Park and Regents hold) to allow for judicial review. Adding the “draft of the draft” then the draft just

... makes the admin record into a slab of swiss cheese with uber air bubbles.

Perhaps the true reason is because the deliberative process privilege has in reality very little to do w “promoting” open decionmaking and

... and everything to do with protecting the agencies from embarrassment.

But back to dec! To save face, maj add this: “determining whether agency’s position is final 4 purposes of the [DPP] is a functional rather than formal inquiry. If evidence establishes that an agency has hidden a functionally final decision in draft form“ DPP does not apply.

Now, perhaps majority has not done FOIA cases lately, but how often have you been allowed to do discovery in FOIA case to get to the “evidence” that will allow you and the ct to decide whether the agency has engaged in a “charade”?

perhaps this is the silver lining.

FOIA b5 discovery here we come?

One last thing on the FWS v Sierra Club case ... what the F was the reason for the dissent?

it sure reads like concurring op except 2 highlight how truly unique the final-draft-draft of a draft situation is in the case. But in so doing the dissent made b5 truly impenetrable.