375 F. Supp. 3d 93
D.C. Cir.2019Background
- Judicial Watch submitted a FOIA request to NOAA seeking communications between NOAA scientist Thomas Karl and OSTP Director John Holdren from 1/20/2009–1/20/2017; Commerce produced >900 pages with many redactions.
- Commerce redacted portions under FOIA Exemptions 5 (deliberative process) and 6 (privacy); Judicial Watch challenges 48 remaining redacted pages (it does not challenge Exemption 6 redactions).
- Commerce moved for summary judgment supported by declarations of NOAA FOIA Officer Mark Graff and a Vaughn index; after Judicial Watch’s challenge, Commerce submitted a supplemental declaration and revised Vaughn index.
- Commerce’s justifications relied largely on a generalized claim that disclosure could “chill” frank internal deliberations and thereby harm agency decisionmaking and public communications.
- The district court reviewed the parties’ cross-motions for summary judgment under FOIA standards (including the FOIA Improvement Act’s “foreseeable harm” requirement) and found Commerce’s justifications insufficiently specific.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Commerce validly invoked Exemption 5 (deliberative process) for the redactions | Redactions are not reasonably likely to chill deliberations and thus do not satisfy the FOIA Improvement Act’s foreseeable-harm requirement; some material is not deliberative or merely applies existing policy | Redactions protect predecisional, deliberative internal communications; release could chill frank internal discussion and hinder formulation of scientific products and responses | Court: Commerce failed to show reasonable foreseeability of harm with specificity; Commerce’s motion denied; Judicial Watch’s motion granted in part, denied in part, and held in abeyance to allow supplementation |
| Whether Commerce’s declarations and Vaughn index meet FOIA’s burden to justify withholding | Agency must link specific withheld information to reasonably foreseeable harm; generalized “chilling” assertions insufficient | Boilerplate declarations and categorical statements suffice to protect deliberative communications | Court: Declarations and Vaughn index were boilerplate and inadequate under the Act; agency may supplement declarations on remand |
| Whether segregability needed further consideration now | Judicial Watch did not press separable argument here | Agency did not develop segregation analysis in detail | Court: Did not resolve segregability; remand allows agency to address it if relying on exemptions |
| Whether to grant summary judgment to either party now | Judicial Watch seeks disclosure of redacted material | Commerce seeks to sustain redactions | Court: Commerce’s motion denied; partial relief to Judicial Watch but final disposition held pending supplemental agency input |
Key Cases Cited
- SafeCard Servs. v. SEC, 926 F.2d 1197 (D.C. Cir.) (agency affidavits accorded presumption of good faith if detailed and nonconclusory)
- Tax Analysts v. IRS, 117 F.3d 607 (D.C. Cir.) (Exemption 5 shields materials privileged in civil discovery)
- Stolt-Nielsen Transp. Grp. Ltd. v. United States, 534 F.3d 728 (D.C. Cir.) (two-part test for Exemption 5: government source and privilege applicability)
- Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854 (D.C. Cir.) (documents must be predecisional and deliberative to qualify for the deliberative process privilege)
- Rosenberg v. Dep't of Def., 342 F. Supp. 3d 62 (D.D.C.) (interpreting FOIA Improvement Act’s foreseeable-harm requirement and requiring more than generalized assertions of chilling effect)
- Sussman v. U.S. Marshals Serv., 494 F.3d 1106 (D.C. Cir.) (district court must make segregability findings before approving withholding)