Judicial Watch, Inc. v. U.S. Dep't of Commerce

• Decision Date: 22 March 2019
• Docket Number: Case No. 17-cv-1283 (EGS)
• Citation: 375 F.Supp.3d 93
• Court: U.S. District Court — District of Columbia
• Parties: JUDICIAL WATCH, INC., Plaintiff, v. U.S. DEPARTMENT OF COMMERCE, Defendant.

375 F.Supp.3d 93

JUDICIAL WATCH, INC., Plaintiff,

v.U.S. DEPARTMENT OF COMMERCE, Defendant.

Case No. 17-cv-1283 (EGS)

United States District Court, District of Columbia.

Signed March 22, 2019

Chris Fedeli, Judicial Watch, Inc., Washington, DC, for Plaintiff.

Marsha Wellknown Yee, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

Emmet G. Sullivan, United States District Judge

This case arises out of a Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, request that Plaintiff Judicial Watch, Inc. ("Judicial Watch") made to Defendant United States Department of Commerce's ("Commerce") National Oceanic and Atmospheric Administration ("NOAA"). Judicial Watch sought records of communications between Thomas Karl, NOAA scientist, and John Holdren, Director of the Office of Science and Technology Policy at NOAA, from January 20, 2009, through January 20, 2017. Judicial Watch's challenges are now limited to Commerce's redactions to specific pages in those records.

Pending before the Court are the parties' cross-motions for summary judgment. Upon consideration of the motions, the oppositions and the replies thereto, the applicable law, the entire record, and for the reasons stated below, Judicial Watch's motion for summary judgment is GRANTED in PART , DENIED in PART , and HELD IN ABEYANCE in PART and Commerce's motion for summary judgment is DENIED .

I. Background

Unless otherwise noted, the following facts are taken from the Complaint, ECF No. 1, and from Commerce's Statement of Material Facts, Def.'s Mot., Statement of Material Facts ("SMF"), ECF No. 14-1.

This case involves a FOIA request by Judicial Watch directed to NOAA, in which Judicial Watch sought "[a]ny and all records of communications between NOAA scientist Thomas Karl and Director of the Office of Science and Technology Policy John Holdren" from "January 20, 2009, through January 20, 2017." Compl., ECF No. 1 ¶ 5. Commerce produced over 900 pages of records consisting of email communications between Thomas Karl and John Holdren, a large portion of which were partially redacted. Pl.'s Cross-Mot., ECF No. 15 at 9.¹

After production, Commerce moved for summary judgment. See Def.'s Mot., ECF No. 14. Commerce's motion was supported by the declaration of Mark H. Graff, NOAA'S FOIA Officer, see Def.'s Mot., Decl. of Mark Graff, ECF No. 14-2 at 1-6, as well as a Vaughn index, id. at 12–15. Mr. Graff's declaration explained the scope of NOAA's use of a FOIA exemption to disclosure based on the deliberative process privilege, Exemption 5, and why the redacted material met that exemption. Id. at 1–6. In further support of its motion for summary judgment, Commerce later submitted another declaration of Mr. Graff. See Second Decl. of Mark Graff, ECF No. 17-2, and a Revised Vaughn Index, ECF No. 17-3, both of which elaborated on Commerce's redactions pursuant to Exemption 5.

Judicial Watch opposed Commerce's motion and filed a cross-motion for summary judgment challenging the redactions made by Commerce to certain pages of produced documents on the basis of Exemption 5. Pl.'s Cross-Mot., ECF No. 15 at 9.² The parties' motions are now ripe for disposition.

II. Legal Standards

A. Summary Judgment

FOIA cases are typically and appropriately decided on motions for summary judgment. Gold Anti–Trust Action Comm., Inc. v. Bd. of Governors of Fed. Reserve Sys. , 762 F.Supp.2d 123, 130 (D.D. C 2011) (citations omitted). Summary judgment is warranted "if the movant shows [by affidavit or other admissible evidence] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A party opposing a summary judgment motion must show that a genuine factual issue exists by "(A) citing to particular parts of materials in the record ... or (B) showing that the materials cited do not establish the absence ... of a genuine dispute[.]" Fed. R. Civ. P. 56(c). Any factual assertions in the moving party's affidavits will be accepted as true unless the opposing party submits his own affidavits or other documentary evidence contradicting the assertion. See Neal v. Kelly , 963 F.2d 453, 456 (D.C. Cir. 1992). However, "the inferences to be drawn from the underlying facts ... must be viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (internal quotation marks omitted).

An agency has the burden of demonstrating that "each document that falls within the class requested either has been produced, is unidentifiable, or is wholly [or partially] exempt from the Act's inspection requirements." Goland v. CIA , 607 F.2d 339, 352 (D.C. Cir. 1978) (internal citation and quotation omitted). In reviewing a summary judgment motion in the FOIA context, the court must conduct a de novo review of the record, see 5 U.S.C. § 552(a)(4)(B), but may rely on agency declarations. See SafeCard Servs. v. SEC , 926 F.2d 1197, 1200 (D.C. Cir. 1991). Agency affidavits or declarations that are "relatively detailed and non-conclusory" are accorded "a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents." Id. (internal citation and quotation omitted).

B. FOIA Exemptions

Congress enacted FOIA to "open up the workings of government to public scrutiny through the disclosure of government records." Stern v. FBI , 737 F.2d 84, 88 (D.C. Cir. 1984) (alterations and internal quotation marks omitted). Although the legislation is aimed toward "open[ness] ... of government," id. , Congress acknowledged that "legitimate governmental and private interests could be harmed by release of certain types of information," Critical Mass Energy Project v. Nuclear Regulatory Comm'n , 975 F.2d 871, 872 (D.C. Cir. 1992) (citations and quotations omitted). As such, pursuant to FOIA's nine exemptions, an agency may withhold requested information. 5 U.S.C. § 552(b)(1)-(9). However, because FOIA established a strong presumption in favor of disclosure, requested material must be disclosed unless it falls squarely within one of the exemptions. See Burka v. U.S. Dep't of Health and Human Servs. , 87 F.3d 508, 515 (D.C. Cir. 1996).

In 2016, Congress passed the FOIA Improvement Act ("Act"), which amended FOIA. See Pub. L. No. 114-185, 130 Stat. 538. Relevant to this case, the Act codified the "foreseeable harm" standard established by the Department of Justice in 2009 and used to defend an agency's decision to withhold information. See S. REP. NO. 114-4, at 3 & n.8 (2015)(citing Office of Att'y Gen., Memorandum for Heads of Executive Departments and Agencies, Subject: Freedom of Information Act (Mar. 19, 2009) ); S. REP. NO. 114-4, at 7–8. Under the "foreseeable harm" standard, the Department of Justice would "defend an agency's denial of a FOIA request only if (1) the agency reasonably fores[aw] that disclosure would harm an interest protected by one of [FOIA's] statutory exemptions, or (2) disclosure was prohibited by law." U.S. Dep't of Justice, Guide to the Freedom of Information Act 25 (2009 ed.), https://www.justice.gov/archive/oip/foia_guide09/procedural-requirements.pdf (internal quotation marks omitted).

Accordingly, as amended by the FOIA Improvement Act, the statutory text now provides that: "An agency shall ... withhold information under this section only if ... (I) the agency reasonably foresees that disclosure would harm an interest protected by [a FOIA] exemption; or (II) disclosure is prohibited by law[.]" 5 U.S.C. § 552(a)(8)(A). Stated differently, "pursuant to the FOIA Improvement Act, an agency must release a record—even if it falls within a FOIA exemption—if releasing the record would not reasonably harm an exemption—protected interest" and if the law does not prohibit the disclosure. Rosenberg v. U.S. Dep't of Def. , 342 F.Supp.3d 62, 72 (D.D.C. 2018) (citation omitted).

The agency bears the burden of justifying any withholding. See Bigwood v. U.S. Agency for Int'l Dev. , 484 F.Supp.2d 68, 74 (D.D.C. 2007). "To enable the Court to determine whether documents properly were withheld, the agency must provide a detailed description of the information withheld through the submission of a so-called ‘Vaughn index,’ sufficiently detailed affidavits or declarations, or both." Hussain v. U.S. Dep't of Homeland Sec. , 674 F.Supp.2d 260, 267 (D.D.C. 2009) (citations omitted). Although there is no set formula for a Vaughn index, the agency must "disclos[e] as much information as possible without thwarting the exemption's purpose." King v. Dep't of Justice , 830 F.2d 210, 224 (D.C. Cir. 1987).

III. Analysis

Judicial Watch's challenges are now limited to Commerce's redactions to a total of 48 pages.³ Commerce relies on FOIA's Section 5 exemption to disclosure, specifically the exemption under the deliberative process privilege. See Def.'s Mot. ECF No. 14 at 6–7. In response, Judicial Watch argues that the redacted documents are either: (1) deliberative but not likely to chill future government decision-making if released; (2) not genuinely deliberative, but rather just conducting government business; or (3) not deliberative of a government policy decision, but only about application of existing policy. See Pl.'s Cross-Mot., ECF No. 15 at 10.

A. Exemption 5

Exemption 5 exempts from disclosure "inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5). Thus, "Exemption 5 permits an agency to withhold materials normally privileged from discovery in civil litigation against the agency." Tax Analysts v. IRS , 117 F.3d 607, 616 (D.C. Cir. 1997). To qualify as exempt under Exemption 5, "a document must meet two conditions: its source must be a Government agency, and it must fall within the ambit of a privilege against discovery...