Jud. Watch, Inc. v. U.S. Dep't of Com., No. 17-1283, 2020 WL 6939807 (D.D.C. Nov. 25, 2020) (Sullivan, J.)

Jud. Watch, Inc. v. U.S. Dep't of Com., No. 17-1283, 2020 WL 6939807 (D.D.C. Nov. 25, 2020) (Sullivan, J.)

Re:  Request for records of communications between NOAA scientist and Director of the White House Office of Science and Technology Policy, from January 20, 2009 through January 20, 2017

Disposition:  Granting defendant's renewed motion for summary judgment; denying plaintiff's held in abeyance motion for summary judgment

• Exemption 5, Deliberative Process Privilege:  The court holds that "[defendant's] explanation and the information in the second Vaughn index are sufficient to demonstrate that the withheld information qualifies for the deliberative process privilege."  "Specifically, for each piece of information withheld under this privilege, Commerce has explained in detail the predecisional and deliberative nature of the withheld information."  "[Defendant's] declaration and the second Vaughn index taken together describe the deliberative process involved and the role played by the withheld information."  "Finally, [defendant's] declaration and the second Vaughn index taken together explain the 'nature of the decisionmaking authority' and the 'chain of command' of the persons involved in the email chains."
   
• Exemption 5, Foreseeable Harm:  The court holds that "[defendant's] explanation is sufficient to satisfy the foreseeable harm standard."  "The explanation does not repeat the justifications for withholding the information provided in the third Vaughn index, but rather describes the specific harms to the deliberative process that would result from disclosure of the information."  "Commerce has taken a categorical approach, but the harms Commerce has articulated are far from 'generic and nebulous.'"  "Furthermore, these harms are connected in a meaningful way to the information being withheld because of the predecisional and deliberative nature of the information."  The court relates that "Commerce divides the withheld information into four primary categories:  i. a draft analysis of the lab work conducted by NOAA's Environmental Science Research Lab, or other NOAA scientists, ii. discussions with OSTP about the different scientific interpretation and impacts of environmental data sets, iii. discussions with OSTP regarding a draft Memorandum analyzing either a Cato Institute memorandum or a Wall Street Journal article, and iv. communications between NOAA and OSTP deliberating the content and presentation of press releases and talking points."  The court relates that "[defendant] states that disclosure of the information being withheld in the first three categories would pose the same foreseeable harm."  "[Defendant] states that agency scientists 'have expressed increasing fear and trepidation in deliberating the merits, methodologies, conclusions, and peer review of their data sets, indicating they feel "under siege" for the work they perform.'"  "He further states that, due to the risk of disclosure, agency scientists 'cannot engage in meaningful scientific debate and collaboration in order to make quality agency decisions with respect to environmental science and data regarding climate change as their internal discussions and debate are at risk of public criticism and critique.'"  "[Defendant] states that agency scientists 'do not want to appear to contradict each other, challenge their colleagues' conclusions, or take a position opposing other government scientists or agencies' because they 'fear . . . their debate being misconstrued, and having their position publicly aired as discordant with other scientific conclusions by agency personnel or the scientific community.'"  "Noting that one 'scientist left the agency in part due to the contentious public scrutiny of his scientific deliberations,' [defendant] states that the 'fear of public criticism for personal scientific viewpoints directly impedes NOAA's ability to make informed, well-debated agency decisions regarding environmental data sets.'"  "With regard to the fourth category of withheld material, [defendant] states that disclosure 'would impede the agency's ability to internally discuss postures, proposed responses, and to debate relative merits of different possible agency positions before making official agency statements to the press.'"
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  The court holds that "Defendants have submitted thoroughly detailed declarations, in combination with supporting documentation, which support and satisfy FOIA's segregability requirement."  "Contrary to [plaintiff's] assertion of boilerplate language, Commerce has met its segregability burden by submitting attestations of its declarant that the records were reviewed 'on a page by page and line by line basis in an attempt to identify reasonably segregable, non-exempt information.'"  "Furthermore, [plaintiff] has provided no basis to question the good-faith presumption afforded to these representations."