Justice Barrett Leads Supreme Court Vote to Limit FOIA Access

Supporting secrecy for government agencies, US Supreme Court Justice Amy Coney Barrett – in her first majority opinion – led a 7-2 vote that will bar access under the Freedom of Information Act (FOIA).

The court restrained how many documents would fall under FOIA, a tool frequently used by reporters, activists and other seeking details of government decisions and actions as well as the deliberations that went into them.

The decision is seen as a blow to pro-transparency groups and FOIA supporters who said the act was designed to make official documentation accessible to the public.

Her debut opinion, reversing an Appeals Court ruling, came in a case that was the first she heard as Justice on Nov. 2, 2020. Barrett’s nomination by former President Donald Trump has been seen as provocation by many.

It came in a case brought by The Sierra Club and groups looking for more information about an Environmental Protection Agency 2014 rule concerning the operation of cooling water intake structures and whether they would hurt protected species.

Barrett said the records were protected to prevent revealing deliberations inside an agency before it makes a final decision, an exemption she wrote, even to documents reflecting agencies’ last words on a given subject.

“A document is not final solely because nothing else follows it,” she wrote. “Sometimes a proposal dies on the vine,” The New York Times reported of her opinion.

The Ninth Circuit Appeals Court in San Francisco felt, in a split 2-1 decision, that draft decisions reflected an agency's final conclusions and must be disclosed, but Barrett countered that argument.

“That happens in deliberations – some ideas are discarded or simply languish,” she wrote. “Yet documents discussing such dead-end ideas can hardly be described as reflecting the agency’s chosen course. What matters, then, is not whether a document is last in line, but whether it communicates a policy on which the agency has settled.”

Barrett wrote that it was not enough that the drafts “proved to be the agencies’ last word about a proposal’s potential threat to endangered species,” but she showed worry that confidential discussions could later come out in the media, the Times said.

JUST THINKING

FOIA is a law designed to allow the public greater access to records from the government and requires the disclosure of documents held by a federal agency unless they fall within certain exceptions.

While the case which brought the decision related to the request from the environmental groups for documents about harm to endangered species, it could pertain to other cases in which journalists or others also require access to deliberations.

The challenge focused on records related to the US Fish and Wildlife Service's and National Marine Fisheries Service's consultations with the EPA, but while thousands of documents were released, others were withheld over "deliberative process privilege."

Barrett, giving a hint about her apparent bent to favor confidentiality for the government, said that 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”.

She said the drafts by the agencies never had final approval, hadn't been sent to the EPA and were "predecisional and deliberative,” but in so doing, the court kept the environmentalists from knowing the process that went into a decision.

Barrett easily got a majority for her opinion although Justices Stephen Breyer and Sonia Sotomayor dissented. Breyer doubted whether the documents kept hidden were really drafts, writing he thought they reflected final decisions and should "normally fall outside, not within" the exemption.

While President Trump had a rather controversial relationship to the media, Barrett's record as a U.S. Appeals Court judge gave little indication how she would rule on freedom of the press issues despite her conservative views.

Before her appointment, The Reporters Committee for Freedom of the Press wrote that, "To our knowledge, Judge Barrett has not had occasion to address most press rights issues — the reporter’s privilege, say, or government transparency, or the traditional privacy torts. She joined only one decision touching on the substance of defamation law.”