Does the FOIA deliberate process privilege “die on the vine” when an agency changes its mind?

Mary F. Samuels, ABA, Oct. 30, 2020

After a landmark Freedom of Information Act (FOIA) decision in 2019 regarding Exemption 4, the U.S. Supreme Court is set to provide clarity on another controversial FOIA exclusion—Exemption 5.

In Food Marketing Institute v. Argus Leader Media, 139 S. Ct. 2356 (2019), the Supreme Court rejected the 40-year-old “competitive harm” test associated with FOIA Exemption 4 as inconsistent with the language of the statute. Little more than a year later, on November 2, 2020, the Court will hear oral arguments regarding the scope of the much-disputed Exemption 5. Exemption 5 is invoked frequently by federal agencies, but courts often find that an agency has overreached in asserting the exemption. In U.S. Fish and Wildlife Service v. Sierra Club, No. 19-547, the Supreme Court must determine whether documents prepared by federal agencies during interagency consultation under the Endangered Species Act (ESA) are protected from compelled disclosure under FOIA—in particular, when one agency’s decision caused another agency to change its mind on its proposed rulemaking.

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