161 F. Supp. 3d 120
D.D.C.2016Background
- In Jan 2014 OSTP Director John Holdren posted a 2-minute White House video and a blog post linking the Polar Vortex to global warming; CEI sought correction under the Information Quality Act (IQA).
- OSTP denied CEI’s correction request, treating Holdren’s and the blogger’s statements as personal opinions exempt from IQA correction; OSTP’s General Counsel affirmed that view on appeal.
- CEI submitted a FOIA request seeking (a) documents about OSTP’s refusal to correct and (b) records on the video’s production; OSTP produced 11 pages (with redactions) and later identified 47 draft pages of the OSTP response letter, which it withheld under FOIA Exemption 5 (deliberative process privilege).
- OSTP later disclosed that one five-page draft had been shared with outside academic Dr. Jennifer Francis; OSTP invoked the consultant corollary to the deliberative privilege to withhold that draft as well.
- The court reviewed the materials in camera and ruled: (1) the 47 internal draft pages are protected by the deliberative process privilege and properly withheld; (2) the five-page draft shared with Dr. Francis is not covered by the consultant corollary and must be disclosed; and (3) OSTP failed to justify withholding portions of 11 email pages under Exemption 5 and must produce them (subject to Exemption 6).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether draft internal letters are exempt under Exemption 5 (deliberative process) | Drafts reflect factual material that must be segregated and disclosed | Drafts are predecisional and deliberative, reflecting agency "give-and-take" and thus exempt | Held: Drafts (47 pages) are predecisional and deliberative; properly withheld in full (no segregable portions) |
| Whether the consultant corollary covers a draft shared with an outside academic (Dr. Francis) | Francis had an evident professional stake in the issue (proponent of the theory); thus not a neutral consultant and her draft is not intra-agency | Outside expert provided technical advice sought to aid deliberations; consultant corollary applies so draft exempt | Held: Corollary does not apply; Francis had professional/reputational interests tied to the theory, so the five-page draft must be disclosed |
| Whether withheld email communications about the video are covered by deliberative process privilege | Emails concern internal deliberations about the video and are exempt | Emails are not part of agency policy formation because OSTP treated the video as personal opinion, so they are not deliberative | Held: OSTP failed to show emails were part of policy formulation; must produce withheld email material (Exemption 6 redactions preserved) |
| Whether discovery is warranted based on OSTP’s late disclosure of the Francis draft | OSTP’s error suggests inadequate search and possible bad faith; plaintiff should be allowed discovery into search adequacy and contacts | Agency affidavits are presumptively in good faith; correction of an earlier error shows cooperation, not bad faith; discovery unnecessary | Held: Denied. OSTP’s correction does not overcome presumption of good faith; no discovery permitted |
Key Cases Cited
- Russell v. Department of the Air Force, 682 F.2d 1045 (D.C. Cir.) (drafts of agency history protected to avoid chilling candid deliberation)
- Dudman Communications Corp. v. Department of the Air Force, 815 F.2d 1565 (D.C. Cir.) (drafts and editorial judgments exempt; disclosure chills deliberation)
- Department of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1 (2001) (Exemption 5 requires inter- or intra-agency communications; distinguishes consultants with independent interests)
- Public Citizen v. Department of Justice, 111 F.3d 168 (D.C. Cir.) (consultant corollary: outside consultants can be treated as intra‑agency if created to aid deliberations and lack independent interests)
- National Security Archive v. CIA, 752 F.3d 460 (D.C. Cir.) (limits on segregating factual material from drafts; drafting process itself protected)
- SafeCard Services, Inc. v. SEC, 926 F.2d 1197 (D.C. Cir.) (agency affidavits in FOIA must be reasonably detailed and non‑conclusory; presumption of good faith)