training & education programs

December 8, 2020 Training

"Food for Thought" Training Seminar

December 08, 2020 – Virtual 

Course #1472

SCOTUS and Exemption 5: Deliberative Process Privilege


Presented by:

Dick Huff, former co-founder of the Department of Justice, Office of Information Policy

Adam A. Marshall, Staff Attorney at Reporters Committee for Freedom of the Press 




ASAP Members paid for the 2021 membership year = $0  (Yep, you read it right: it’s FREE for members)  

Nonmembers = $15

FOIA Exemption 5 - Deliberative Process Privilege: Is it Going Away?

On November 2, the Supreme Court heard oral arguments as to whether the deliberative process privilege protects draft documents under Exemption 5 of the Freedom of Information Act. In U.S. Fish & Wildlife Service v. Sierra Club, the USFWS argues that the draft document is privileged, predecisional, deliberative material written by staff as a recommendation to agency decisionmakers with respect to a position it should take in working with the EPA. The USFWS also notes that the relevant decisionmakers did not adopt the recommendations, nor transmit them in full to the EPA.

The Sierra Club argued that if a document explains the decision made by an agency with appreciable legal consequences, Exemption 5 does not apply. The opinions explain a decision made by the USFWS, that EPA's proposed regulation jeopardized protected species and that jeopardy decision has legal consequence. Because the USFWS' conclusions got deference, it does not matter if the USFWS labels their opinions "draft" or "final."

And so, here we are.  Will SCOTUS treat deliberative process privilege like High 2? What is really at the heart of the matter, and what legal precedents come into play? Listen as Dick Huff, former co-founder of the Department of Justice, Office of Information Policy and Adam A. Marshall, Staff Attorney at Reporters Committee for Freedom of the Press delve into these arguments and provide a deeper understanding of the impact it could have for agency work products.

For Oral Arguments or transcripts:

EVENT: SCOTUS and Exemption 5: Deliberative Process Privilege

Course #: 1472

DATE: December 8, 2020

TIME: 3:00 PM – 4:00 PM EDT

LOGIN and TESTING: We will be utilizing GoToMeetings. We will have a testing period on Monday, December 7th, 2020. The link will be emailed to registrants for testing.

COST: ASAP paid members = $0  and Nonmembers = $15