995 F.3d 1014
D.C. Cir.2021Background
- PCTC (trade group for coal-tar sealant producers) requested USGS records underlying two studies that identified coal-tar pavement sealant as a major PAH source: an urban lakes study and a house-dust study.
- USGS produced raw data but withheld roughly 196 unpublished computer model runs (inputs/outputs) under FOIA Exemption 5 and withheld participant addresses and identifying details from the house-dust study under Exemption 6.
- PCTC argued it needed the model runs to replicate and test the scientists’ exploratory choices and to rebut alleged methodological bias; it sought participant addresses to assess confounders in the dust study.
- The District Court granted summary judgment to USGS; PCTC appealed. The D.C. Circuit reviewed de novo whether the withheld materials fit Exemptions 5 and 6.
- The court held USGS failed to demonstrate the model runs were pre-decisional and deliberative (Exemption 5) and reversed/remanded that issue for further proceedings; it affirmed withholding of participant location and questionnaire identifiers under Exemption 6.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether unpublished model runs are pre-decisional (Exemption 5) | Model runs are not privileged; needed to replicate analysis and expose alleged manipulation of inputs | Model runs are part of the agency’s deliberative process used to arrive at the decision to publish | USGS failed to show model runs were used by decisionmakers; not established as pre-decisional — remanded for further fact development |
| Whether disclosure of model runs is protected as deliberative (chilling effect) | Disclosure follows scientific norms and won’t chill candid inquiry; public release improves scrutiny | Release would discourage candid internal exploration, confuse public, and harm agency decisionmaking | USGS did not prove disclosure would chill candid intra-agency discussion or harm decisionmaking; categorical withholding improper at summary judgment |
| Whether house-dust participants’ addresses and identifiers may be withheld (Exemption 6) | PCTC needs addresses to replicate study and assess confounders; public interest in validation | Release would invade participants’ privacy and add no meaningful public insight because questionnaires and matchable data were already produced | Affirmed — participants have more-than-de minimis privacy interest and disclosure would not advance public interest in agency operations; Exemption 6 applies |
Key Cases Cited
- Milner v. Dep’t of Navy, 562 U.S. 562 (narrow construction of FOIA exemptions)
- Petroleum Info. Corp. v. U.S. Dep’t of Interior, 976 F.2d 1429 (D.C. Cir.) (Exemption 5 pre-decisional/deliberative framework)
- Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854 (D.C. Cir.) (agency burden to describe deliberative process and role of documents)
- Dudman Commc’ns Corp. v. Dep’t of Air Force, 815 F.2d 1565 (D.C. Cir.) (disclosure may be barred where it would chill candid intra-agency discussion)
- Formaldehyde Inst. v. Dep’t of Health & Human Servs., 889 F.2d 1118 (D.C. Cir.) (peer-review comments protected where nondisclosure necessary to preserve candid expert review)
- Renegotiation Bd. v. Grumman Aircraft, 421 U.S. 168 (definition of pre-decisional materials)
- Dep’t of State v. Wash. Post Co., 456 U.S. 595 (Exemption 6 protects personal privacy)
- U.S. Dep’t of Def. v. FLRA, 510 U.S. 487 (privacy interest analysis under Exemption 6)
- Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26 (D.C. Cir.) (public interest must shed light on agency operations to overcome privacy)
- In re Clinton, 970 F.3d 357 (D.C. Cir.) (discovery in FOIA cases is rare; prefer resolution by affidavit/summary judgment)