Freedom of Information: Secret Law versus Finality


The recent Supreme Court decision in Fish and Wildlife Service
v. Sierra Club presents a conflict between the public’s right to
know federal agency policies and a federal agency’s interest
in protecting its deliberative materials from public review. The
Sierra Club claimed that the Fish and Wildlife Service was violating
the Freedom of Information Act by refusing to provide
biological opinions – a required analysis of the potential
impact of regulations on endangered species – by marking
them draft and never producing a final opinion that would be
publicly available. This article analyzes the decision and
explains why the agency controls the decision as to what is
publicly available. It is not that the agency interest in privacy
is more important than the public’s right to know; the rule is
that as long as the agency is deliberating, there is not final
policy to make public.

To read the full journal publication click here.

This article was originally published in the Environmental Claims Journal on September 23, 2021.