Court favors deliberative-process privilege protections over FOIA transparency goals

Notwithstanding the Freedom of Information Act’s primary goal of promoting transparency in government decision-making, the Supreme Court on Thursday ruled by a 7-to-2 vote that the public policy of facilitating agency candor in exercising its expertise in preliminary agency deliberations can outweigh such transparency and accountability concerns. Justice Amy Coney Barrett delivered the 11-page opinion, her first majority opinion since joining the court in October. It was a natural debut given that the case, U.S. Fish and Wildlife Service v. Sierra Club, was the first oral argument that Barrett heard after joining the bench.

The case presented the question of whether FOIA’s deliberative-process privilege exempts from disclosure certain documents prepared during a statutorily required interagency consultation process between the U.S. Fish and Wildlife Service and National Marine Fisheries Service (collectively, “the services”) and the Environmental Protection Agency.

In the interest of transparency, FOIA provides the public with a right to access federal records, but exempts certain records from disclosure, including those that would be privileged against discovery in civil litigation. These include records that fall under the deliberative-process privilege, which promotes candor in agency decision-making by protecting from disclosure documents that are “predecisional” and “deliberative.”

At issue in this case were records prepared by the services during the interagency consultation process required under Section 7 of the Endangered Species Act, which prohibits federal agency actions that jeopardize the continued existence of listed species or their habitats. In 2011, EPA proposed regulations for structures known as cooling water intakes, which draw large volumes of water from the ocean or other water bodies in order to cool down industrial equipment. The agency consulted with the services regarding the regulations’ potential to cause “jeopardy” due to the harm such intake structures can cause to aquatic life. Services staff completed draft biological opinions in December 2013, finding that EPA’s proposed regulations would jeopardize listed species and identifying “reasonable and prudent alternatives.” Consultation continued, and in 2014, EPA sent the services a revised rule. The services issued a final biological opinion finding “no jeopardy,” and EPA issued its final rule in that same year.

Sierra Club then submitted a FOIA request for the December 2013 biological opinions, among other documents. A federal district court ruled that the documents were not protected, and the U.S. Court of Appeals for the 9th Circuit agreed in part, determining that some of the documents, including the December 2013 biological opinions, were not privileged.

Joining Barrett in the majority to overturn the 9th Circuit were Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Elena Kagan, Neil Gorsuch and Brett Kavanaugh. Unsurprisingly, the court adopted the argument that a proposal that “dies on the vine” remains predecisional and deliberative because “[w]hat matters … is not whether a document is last in line, but whether it communicates a policy on which the agency has settled.” Barrett wrote that courts should look to whether “the agency treats the document as its final view on the matter,” and further specified that the document will have a “real operative effect” and will not leave agency decision-makers “free to change their minds.”  

The majority rejected Sierra Club’s argument that the 2013 biological opinions had a real operative effect on EPA. Barrett emphasized that, for documents to fall outside the deliberative-process privilege, they must have legal consequences, not merely practical consequences — a distinction she had raised during oral argument. Barrett described a final biological opinion as having legal consequences if it “alters ‘the legal regime to which the action agency is subject, authorizing it’ to take action affecting an endangered species ‘if (but only if) it complies with the prescribed conditions.’” A draft biological opinion, on the other hand, she described as having only practical consequences if the agency “adopt[s] an alternative approach that avoids jeopardizing an endangered species.” She reasoned that “many documents short of a draft biological opinion could prompt an agency to alter its rule,” such as emails or memoranda, which clearly would not be considered an agency’s final decision.

Barrett went on to explain that the services did not treat the 2013 biological opinions as final, and contended the documents were in fact drafts of drafts — “a far cry from an ‘agency decision already made.’” She ran through the series of arguments the services provided. The decision-makers did not approve the documents, did not send them to EPA, and determined that “more work needed to be done.” Satisfied by these factors, Barrett concluded that the “deliberative process worked as it should have: The Services and the EPA consulted about how the rule would affect aquatic wildlife until the EPA settled on an approach that would not jeopardize any protected species.”

Barrett seemed to indicate during oral argument that she favored a bright-line standard over a fact-intensive inquiry. However, to address concerns that agency officials may label a document as “draft” to avoid disclosure, she wrote that “if the evidence establishes that an agency has hidden a functionally final decision in draft form, the deliberative process privilege will not apply.” In the present case, however, she wrote that the services “did not engage in such a charade.”

Interestingly, Barrett did not go into any detail to explain how, if at all, disclosure of the draft biological opinions in contexts such as this case might discourage agency candor. In light of its paramount concern for guarding agency space to deliberate, the court seems to dismiss any need for an explicit showing of a potential chilling effect on such deliberations.

The court reversed the 9th Circuit and remanded to the district court to determine whether any portions of the documents can be separated out from the privileged portions.

Justice Stephen Breyer, joined by Justice Sonia Sotomayor, dissented, providing five reasons the 2013 biological opinions reflect a final agency decision. First, Breyer reasoned that “[t]he mere possibility of a future change does not alter the finality, or the final effect, of the original document.” He pointed to cases in which the services have issued a final biological opinion, but then have withdrawn it and issued a new biological opinion.

Second, Breyer emphasized that a final biological opinion and draft opinion “serve the same functions within the administrative process.” The only difference, he noted, is that the services must make the draft biological opinion available to EPA before the final biological opinion is issued. Breyer then pointed out a distinction the majority glossed over — consultation over the transmitted draft biological opinion was to determine reasonable alternatives to EPA’s original proposed action, not to change the services’ environmental analysis. The purpose of providing EPA with a draft biological opinion is “simply [to] allow[] the EPA to make its choice before a Final Biological Opinion issues.”

Third, Breyer pointed out that it is the draft biological opinion, not the final opinion, that “triggers within EPA the process of deciding what to do about [the services’] conclusions.” Breyer referenced how uncommon it is for the services to issue a final biological opinion finding jeopardy — only twice over about a seven-year period in which over 6,800 formal consultations occurred.

Fourth, Breyer argued the public policy of encouraging agency candor in deliberations is not undermined by allowing disclosure. The services and even EPA commonly disclosed draft biological opinions to the public and are required to do so if requested by a private applicant. Thus, services staff understand draft biological opinions may be disclosed. Breyer further suggested that this discrepancy between disclosure requirements for private and agency applicants creates a needless anomaly.

Finally, Breyer contended that the regulatory requirement not to issue a final biological opinion once a draft opinion is under review and the limits the draft biological opinion placed on EPA’s available alternatives constitute legal consequences, not merely practical ones.

Breyer concluded the fact-intensive question as to whether some of the documents at issue are draft biological opinions or drafts of draft biological opinions remains, given that some of the documents contain “highlighting and editing marks.” He would remand to the 9th Circuit to make this determination and conduct a segregability analysis if the court determines certain documents to be drafts of drafts. 

For open government advocates, the majority’s characterization of the services’ consultation and biological opinion issuance process may be cause for concern. The majority seems to suggest that the only time a biological opinion that finds jeopardy can be disclosed is if an agency decides to risk moving forward without any changes to its proposed action, or seeks a rarely granted exemption from a cabinet-level committee. As such, the decision may serve to further obscure government decision-making from public scrutiny and limit public involvement. On the other hand, the court undoubtedly left the door open for fact-specific inquiry in future cases regarding whether draft documents are “functionally final.” And in remanding the case, it affirmed that even when documents are privileged, federal agencies nonetheless must release any factual, non-deliberative information within any protected documents.

Posted in Featured, Merits Cases

Recommended Citation: Alejandro Camacho and Melissa Kelly, Court favors deliberative-process privilege protections over FOIA transparency goals, SCOTUSblog (Mar. 6, 2021, 2:38 PM), https://www.scotusblog.com/2021/03/court-favors-deliberative-process-privilege-protections-over-foia-transparency-goals/

If you think personal and professional corruption and malfeasance of public sector employees is relegated to Third World countries, “Banana Republics” and other non-English speaking countries, I envy your ability to compartmentalize your life and avoid contemplation of subjects which increase your heartbeat rate past 60 beats per minute.

Americans like to believe bribery, kickbacks, and payoffs involving federal officials could not happen here, not where the Ten Commandments is the original law of this country. Those persons working for any federal government in our hemisphere and having character flaws must be “south of the border” in Mexico (involved with drug cartels) and maybe Brazil (where Petrobras was paying legislators for federal contracts, and it cost the president his job). Oddly, both of these Latin American countries are predominantly Catholic, a religiously based population, but the corruption flag is flown by many people from many countries, even people in the United States.

Human nature knows no boundaries. If you read two of the books written by Niccolo Machiavelli (Discourses and The Prince), both published in the early 1600’s, you will read truisms which apply today. Machiavelli did not write solely about how to be an effective politician, having no scruples, he delved into the mind of the corrupt man which drove politician and federal worker to ignore his conscience.

After having been privy to a number of federal corruption instances, and now being a plaintiff in a matter involving a contractor (known as a Fiscal Agent) which has received three (3) contracts since 2008 to disburse US Treasury payments, and charging a fee to do so, the “dots” to be connected are becoming more clear. The denial of corruption with regard to federal contracts awarded by the US Treasury cannot be justified when facts are presented.

The public can submit Freedom of Information requests in an attempt to determine how a federal contract was awarded, who or what group had the final authorization, and what did the applicant submit in order to persuade the decision makers to choose a specific applicant. The interestingly enough, this request is submitted to the same agency which denied the informal or unofficial request, necessitating the FOI Request.

I have written on this subject but some points bear repeating in order to make a different point. The pattern of continued submissions of false information to US Treasury in an attempt to continue being a Fiscal Agent, along with investigations and audits detailing violations of the Fiscal Agent Agreement, did not deter the “decision makers” at the Bureau of Fiscal Service to continue a relationship with said Fiscal Agent, Comerica Bank.

While it was documented that Comerica Bank falsified consumer feedback information (using an “in-house” survey rather than one being independent), Comerica Bank also made the assertion that the infrastructure was available for Comerica Bank to handle the program of over five million debit cards. There was no infrastructure, and Bureau of Fiscal Service decision makers known as the “Evaluation Team” refused to be interviewed because they knew that I knew the contract was tainted. Comerica Bank used a third party call center named Conduent, not a bank, to field customer service call. This has been an ultimate disaster for debit card holders needing to address fraud matters.

Not only did Comerica Bank not have a call center, according to a Conduent manager Comerica Bank houses no debit card customer information or files within their system; Conduent controls all calls, and all banking activity. But wait; Conduent is not a bank. This is part of the reason Comerica Bank and Conduent are defendants in a number of lawsuits in federal court.

You ask how do employees of the Bureau of Fiscal Service, Department of Treasury, justify and ignore the fraudulent submission of documents in order to obtain a lucrative federal contract? These employees feel untouchable as they and their lawyers ignore FOI requests and subpoenas. The legislators in Brazil felt they had the same insulation as they took money from Petrobras officials, and Mexican law enforcement taking money from cartels.

US federal employees have no reason to be smug. Criminals in any country know that the only catalyst necessary to persuade a federal employee to commit a crime, take a bribe, turn a blind eye, or ignore an investigation is quite simply motivation, and motivation can take many forms.

The Social Security Administration has been exposed as having a toxic culture; they protect incompetence within the agency, refuse to engage in dialogue which would require accountability, attack anyone who would dare challenge competence or integrity of an employee, deny that any SSA employee is complicit with criminal fraud activity, and shield SSA from any attempt of transparency.

For the past two years, I have been involved in exposing malfeasance in a federal program, Direct Express, which was created by Bureau of Fiscal Service (BFS, Dept of Treasury). This program, administered by the contract holder (Comerica Bank and its subcontractor Conduent) is a debit card program from which federal payments (Social Security, Veterans Administration, Civil Service, Railroad, and others) are made available on the Direct Express debit card rather than a bank account or alternative debit card. Comerica Bank offered no transaction alerts on the Direct Express card and violated Regulation E (federal banking law). BFS was well aware of the lack of oversight, hiding this malfeasance from the public.

In comes Social Security System Administration employees and denial of complicity in ignoring or involvement with identity fraud. Direct Express cardholders have been victimized by fraud on their accounts. Many have had their addresses fraudulently changed at SSA, then the fraudster communicates the address change to the Direct Express program (Comerica Bank) to have a new card issued to the new address. When the fraudster receives the new Direct Express card (unknown to the original cardholder) the fraudster uses the new card at the designated time of the month (usually the third of the month) to withdraw money before the original cardholder knows the money is missing. This transaction can take place thousands of miles from the address of the original cardholder. Once the original cardholder realizes their money is missing, they contact the subcontractor Conduent to report the crime and have a new card issued. Conduent is rarely efficient in handling this process, but we are now focusing on SSA transparency and accountability.

I experienced the exact scenario: I was a Direct Express cardholder. On June 29, 2018 a fraudster contacted SSA, changed my address, and I was fortunate to have discovered the fraud within 5 days of the crime during an chance visit to a local SSA office. I reinstated the correct address before suffering any loss. Over the past 18 months many requests have been made by me to determine how the fraudster communicated with SSA to make the change. Was my address changed by email, an online account, regular mail, by telephone, or some other method?

For well over a year SSA refused to reveal the requested information. I did not ask for the identity of any suspected complicit employee, only the method. Many emails and letters were sent to SSA, and eventually a Freedom of Information (FOI) request was made. Initially SSA denied the FOI request. Persistence prevailed. After being denied the FOI request on more than one occasion, a subsequent request generated a response from an FOI official: SSA had conducted an “investigation and conducted meetings” on the matter and stated via email that if I wanted to know how my account was compromised I would have to pay $1,444.00 for 29 hours of their “work” to determine how my address was changed. This was SSA’s version of “we will charge a ridiculous fee and the victim will never pay to get the information.”

All an SSA employee needed to do was to go to my account, see the date of the address change (which I furnished), and see how it was changed. This did not take 29 hours of work. If the fraudster communicated with a criminal employee of SSA, all the fraudster would need to do is give my proprietary information to a corrupt or incompetent SSA employee and that employee would have it changed. The network of fraudsters allows crimes to happen and SSA is not exempt, but SSA is deterring me from information on MY account.

Personal and professional accountability as well as transparency does not exist in SSA. They protect their own. When I brought up the matter on LinkedIn, I was attacked by a male SSA employee. He said things he would never say to my face (or he would not say it twice). The matter has now been sent to and official of Office of Inspector General of SSA with whom I have communicated for over a year.

The lesson for everyone is not to give up when you are dealing with federal officials who conceal their corrupt activities. Keep pushing.

The US Department of Treasury serves many functions, which include dispensing and collecting tax dollars. The Bureau of Fiscal Service, a division of Treasury, collects and dispenses handles this function of Treasury.

With regard to dispensing money, Bureau of Fiscal Service, to be referred to as BFS, pays independent contractors to be the conduit to pay benefits to a select group of Social Security and Veteran benefit recipients. These payments are made to debit cards, and each debit card program has a bank which oversees the dispensation of the funds. The banks which dispense funds are identified as “Fiscal Agents” of BFS.

Many persons receiving VA disability benefits, and those receiving Social Security benefits, receive their monthly payments on a debit card which was a program developed as the Direct Express program, and the card is a Direct Express debit card. When a person applies for either of these benefits, they have an option to have their monthly payment placed into a bank account or on the Direct Express debit card. The reason some choose to use the Direct Express debit card is because they have no bank account, cannot get a bank account, or simply choose to use the debit card.

Comerica Bank is the Fiscal Agent for the Direct Express program, and has been the only Fiscal Agent since the inception of the program in 2008. Comerica Bank has three times been named the Fiscal Agent of this program in spite of two scathing OIG Treasury reports (14-031 and 17-034) along with the interim report published on July 29,2019 (19-041).

In November 2018, BFS made the announcement that bids from banks were to be received for the new Fiscal Agent agreement to be named in May, 2019. After “qualifying” the potential candidate banks, BFS announced around March of 2019 that “oral presentations” would be accepted by prospective banks before a BFS “Evaluation Team.” Direct Express cardholder victims of fraud and Regulation E (15USC1693) violations by Comerica Bank submitted written requests to BFS to be allowed to make a presentment to this Evaluation Team.

Thomas Santaniello, the representative of BFS, refused to allow any citizen and/or victims of the BFS program to address the Evaluation Team. A request to identify the members of this group was ignored.

A formal investigation of BFS and an audit of BFS and its Direct Express program (including Comerica Bank) were being conducted at the same time the evaluation process of choosing the new Fiscal Agent was being conducted. May 16, 2019 passed, and the naming of the new Fiscal Agent was postponed indefinitely.

Special Counsel of OIG Treasury began a new investigation of thirty (30) Direct Express cardholder victims around October 2019. Therefore, three investigations of BFS were being conducted as BFS was deciding the new, or incumbent, Fiscal Agent.

An inquiry was made to Thomas Santaneillo of BFS by a congressional staffer of member of the US House of representatives. One of the questions to Santaniello was this:

“Q3.  How much is Treasury currently paying to Comerica to manage each Direct Express Account? (I have heard $5 and $2—which is accurate?) Also was this fee written into the original Fiscal Agent Agreement between Comerica and the Treasury?”

“A3. The exact fees paid to Financial Agents are confidential commercial information and/or trade secrets of the Financial Agent and therefore not for public dissemination. “

Not only was BFS, and its watchdog Santaniello, not willing to allow victims of a BFS program to address the group which was to name the next or incumbent Fiscal Agent, Santaniello refused to tell a congressional staffer how much money BFS was paying Comerica Bank as the Fiscal Agent of the Direct Express program.

Tom Gribben, who became the new commissioner of BFS in mid 2019 has yet to address the current lack of transparency of BFS. The prior lack of transparency of BFS was exposed by Michael Clements of the General Accounting Office (GAO) 17-176 dated January 25, 2017. The lack of integrity and transparency of BFS is not new.

In early January 2020, BFS awarded the new Fiscal Agent contract to Comerica Bank while the three investigations continued. The justification of this award has yet to be published.

It is hard to believe Santaniello could unilaterally prohibit victims of a BFS program from addressing BFS, and also refuse to answer a question from a congressional staffer with respect to money paid to Comerica Bank. Furthermore, there is no evidence that Mr. Gribben condoned this refusal by Santaniello to be accountable to the victims of a BFS program or to any citizen. Is Mr. Gribben “out of the loop” as the new commissioner?

Payment to government contractors through BFS should not be secret. Victims of BFS should be able to voice their opinions and present evidence of their disapproval. It appears BFS is scared other “evidence” will arise.

Since 2008, Comerica Bank was chosen as the Fiscal Agent for a program that was created by Bureau of Fiscal Service, a division of US Treasury. Fiscal Service was created by Treasury to collect and dispense funds, with “Fiscal Agents” being banks or other institutions acting as contractors for Fiscal Service to implement the functions of collecting and dispensing federal money.

As with all government contracts, a contractor has to bid on the contract. Comerica Bank, as the Fiscal Agent for the Direct Express program (which dispenses Social Security, VA, and other funds onto a Direct Express debit card) was found to have submitted false and incomplete information on their bid application (as noted in federal reports). Not only did Fiscal Service ignore falsified submissions, a connection between Comerica Bank and Fiscal Service (which granted the contract) allowed Comerica Bank to alter the original agreement, enabling Comerica Bank to receive tens of millions of dollars while ignoring complaints from Direct Express cardholders. The cake was baked.

Veterans, Social Security recipients of all types, and other eligible persons, were subjected to violations of Regulation E (15USC1693), which governs many aspects of electronic transmission of funds at financial institutions. Cardholders were not receiving provisional credit after reporting fraud, fraud claims were being dismissed with no investigation conducted, no mobile alerts were given to advise cardholders when fraudsters were using their debit card account, and persons having no banking experience were managing this program. Comerica Bank used a call center subcontractor, Conduent, to handle all cardholder issues, and cardholders suffered greatly.

Veterans, and others, lost monthly payments. Rent, electricity, food, medication, and other monthly expenses could not be paid.

After over almost two years of constant “bombardment” of facts and narratives to OIG Treasury and a year of contact with the VA, we had a breakthrough: Steve Lepper (Maj Gen, USAF, Ret.) contacted me this week after having had conferences with VA Secretary Wilkie. The VA had previously endorsed Veterans using the Direct Express program for Veterans to receive benefits on a debit card. Our work in exposing the corruption and lack of oversight by Bureau of Fiscal Service resulted in Mr. Lepper, President and CEO of Association of Military Banks of America ( https://www.ambahq.org/ ) contacting me on Monday, December 16, 2019 to discuss a change in direction for VA benefits being electronically transmitted to veterans. On Tuesday December 17, 2019, Mr. Lepper sent me a copy of a press release announcing the official collaboration of the VA with the AMBA. This announcement is a great victory for Veterans and others against corruption and malfeasance within the Bureau of Fiscal Service, and promotes “Veterans helping Veterans.”

We could not be more happy for our Vets to now have their financial benefits protected.

The Bureau of Fiscal Services, a division of US Treasury, dispenses money to different recipients; Social Security (and Social Security Disability), VA benefits, Railroad retirement, Civil Service retirees, and others. The program created is Direct Express, and a Direct Express debit card was created. Comerica Bank twice won a bid to administer the program, then used a call center company, Conduent, to handle banking calls. Comerica Bank did not include ordinary safety parameters or transaction notifications on the Direct Express debit card, thus the fraud was rampant.

OIG Treasury commissioned an investigation based upon evidence and documents provided by J.B. Simms, a Direct Express card holder. OIG Chief Counsel (now commissioner) Richard Delmar commissioned the investigation, which has been ongoing since June 2018 to present (October, 2019). This investigation will examine Bureau of Fiscal Services, Comerica Bank, and Conduent.

News reporter Sandra Chapman of WTHR Indianapolis reported the following on September 26, 2019:
In a memo to the Commissioner of the U.S. Bureau of Fiscal Services, the Audit Director, Katherine Johnson, said the Office of the Inspector General of the Treasury was supposed to be alerted within one week of “any instance of a possible violation of federal criminal laws.” And that alert should have come related to the fraud in the Direct Express Program.​
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But Fiscal Services said due to the Right to Financial Privacy Act (RFPA), Comerica, the bank with the Direct Express contract, only reported “insider crimes” of fraud, bribery or embezzlement by its employees or subcontractors.​
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The OIG said that interpretation is inaccurate and that the limited information Comerica provided about fraud in the Direct Express program was not enough to launch an audit or investigation. That is why the Inspector General’s Office said it was unaware of the extent of the fraud involving nearly 500 victims nationwide, including Kreegar.​

While this investigation continues, Bureau of Fiscal Services promotes the false notion that benefit recipients have to use the Direct Express debit card or have a bank account. This is not true, any debit card can be used to receive benefits. More of lack of oversight by Bureau of Fiscal services will be exposed.

Each government agency has an Office of Inspector General. This part of each government agency supposedly holds persons accountable who work for the agency within which the specific OIG (Office of Inspector General) resides. A more definitive explanation, taken from a federal website is this: The Office of Inspector General investigates complaints or allegations of wrongdoing or misconduct by employees or contractors that involve or give rise to fraud, waste or abuse within the programs or operations of the [agency from which it is located].

This means each agency investigates itself, almost like an “agency internal affairs” setup. The OIG of each agency submit reports of their work, referred to as “audits” and these audits are published for the public to read and found on the internet at the index of each agency website. The audits are the result of an investigation. There is a difference between an investigation and an audit; each function can be used to generate inquiries by the other, but from what I have seen, the investigation is fed to the audit group, and the audit group publishes the findings.

My experience is with OIG Veteran Affairs and OIG Treasury. Both of these OIG office have been found to have failed to report incriminating information or to hold either agency of which they audit to be accountable. An introductory letter from the agency auditor identifying and summarizing the report is sent to the Commissioner or other high ranking official of the agency. A reply from the recipient of the report is included the end of the report. The recipient thanks the OIG office for submitting the audit, makes excuses for shortcomings, will promise to do better, and nothing happens.

Hopefully the lack of full investigations, accountability, and enforcement will diminish. Since my involvement with OIG audits/investigations of the Bureau of Fiscal Services (a collection and dispensing division of US Treasury) I have found the General Counsel and selected Treasury Agents to be receptive to the failings of their office in two previous audits of the Bureau of Fiscal Services.

As we await a new report, we hope to see a more objective manner in which to run government agencies.

If you are a citizen, employed in the private sector, you understand what it is like having to deal with public sector/”government” employees who have the power to regulate what you do, and they are not accountable to you. You ask them questions, and they will tell you the information is not available for you to see or know. Programs and policies are created behind closed doors. They answer to no one. They are not accountable to you. Their behavior is covered up. They never get fired, thus, where there are no consequences for bad behavior, there is no accountability. I will focus on a few government agencies in which bad behavior was exposed, and no one suffered, except maybe the citizens.