FOIA Exemption 5’s Deliberative Process Privilege Overused, Abused
Participated in an amicus brief (with the Reporters Committee and other amici) filed with the U.S. Supreme Court in Fish & Wildlife Service v. Sierra Club. This case concerns the applicability of FOIA Exemption 5’s deliberative process privilege to the disclosure of certain documents prepared by the U.S. Fish and Wildlife Service and National Marine Fisheries Service as part of a formal interagency consultation process. Sierra Club sought the records under FOIA, and the services refused to disclose them, arguing that they are exempt under Exemption 5. The amicus brief argues that overuse and abuse of the deliberative process privilege is undermining the purpose of FOIA. It highlights the increasing number of withholdings made pursuant to Exemption 5 and specific examples of such withholdings that have harmed the public’s right to know.