UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JUDICIAL WATCH, INC.,

Plaintiff,

v. Case No. 17-cv-1283 (EGS)

U.S. DEPARTMENT OF COMMERCE,

Defendant.

MEMORANDUM OPINION

This case arises out of a Freedom of Information Act

(“FOIA”),

, 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,

at 12–15. Mr. Graff’s declaration explained

1 When citing electronic filings throughout this Memorandum Opinion, the Court cites to the ECF header page number, not the original page number of the filed document. 2 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.

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.,

(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

2 Commerce also redacted personal information from the documents based on FOIA Exemption 6, but plaintiffs do not challenge Commerce’s reliance on that exemption. Pl.’s Cross-Mot., ECF No. 15 at 9. 3 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,

(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.,

(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,

(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

(a)(4)(B), but may rely on agency

declarations. See SafeCard Servs. v. SEC,

, 1200

4 (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.”

(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,

(D.C. Cir.

1984)(alterations and internal quotation marks omitted).

Although the legislation is aimed toward “open[ness] . . . of

government,”

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,

(D.C. Cir.

1992)(citations and quotations omitted). As such, pursuant to

FOIA's nine exemptions, an agency may withhold requested

information.

(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.,

(D.C. Cir. 1996).

In 2016, Congress passed the FOIA Improvement Act (“Act”),

which amended FOIA. See

Stat. 538.

5 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[.]”

(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—

6 protected interest” and if the law does not prohibit the

disclosure. Rosenberg v. U.S. Dep't of Def.,

(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.,

(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.,

(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,

(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

3 Judicial watch initially challenged 53 redacted pages. However, after Judicial Watch filed its motion for summary judgment, Commerce released three documents to Judicial Watch with the redactions removed, 827, 817, 722. Second Graff Decl., ECF No. 17-2 at 2. Commerce has also released documents 70 and 75 with the redactions removed. Pls’s Cross-Mot. ECF No. 15 at 19, n.11. Plaintiffs have therefore withdrawn their objections to these documents. See Pl.’s Reply, ECF No. 19 at 7. 7 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.”

(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,

(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 under judicial standards that would

govern litigation against the agency that holds it.” Stolt–

Nielsen Transp. Grp. Ltd. v. United States,

(D.C. Cir. 2008)(internal quotation marks and citation omitted).

One of the privileges against discovery that Exemption 5

encompasses is the deliberative process privilege, which

8 protects from disclosure documents that would reveal an agency's

deliberations prior to arriving at a particular decision. Dent

v. Exec. Office for U.S. Attorneys,

, 267–68

(D.D.C. 2013).

To fall within the scope of the deliberative process

privilege, withheld materials must be both “predecisional” and

“deliberative.” Mapother v. Dep’t of Justice,

(D.C. Cir. 1993). A communication is predecisional if “it was

generated before the adoption of an agency policy” and

deliberative if it “reflects the give-and-take of the

consultative process.” Coastal States Gas Corp. v. Dep’t of

Energy,

(D.C. Cir. 1980). “Even if the

document is predecisional at the time it is prepared, it can

lose that status if it is adopted, formally or informally, as

the agency position on an issue[.]”

The deliberative process

privilege is to be construed “as narrowly as consistent with

efficient Government operation.” United States v. Phillip

Morris,

(D.D.C. 2003)(quoting Taxation with

Representation Fund v. IRS,

(D.C. Cir. 1981)).

Judicial Watch argues that Commerce has failed to meet the

foreseeable harm standard codified in the Act. Pl.’s Cross-Mot.,

ECF No. 15 at 11. In Commerce’s motion for summary judgment it

offered the following justification for claiming the

9 deliberative process privilege through the declaration of Mr.

Graff:

The release of such information could have a chilling effect on the discussions within the agency in the future, discouraging a frank and open dialogue among agency employees during the formulation of scientific papers NOAA creates, environmental reports, and inter- agency collaborations on responses to scientific data and memoranda.

Graff Decl., ECF No. 14-2 at 4. Perhaps realizing that its

justification left much to be desired in light of the

foreseeable harm standard, Commerce responded to Judicial

Watch’s cross-motion for summary judgment with another

declaration elaborating on what foreseeable harm would occur if

the withheld information was released:

By way of further explanation regarding the foreseeable harm for releasing the material, the release of the withheld information could have a chilling effect on the discussions within the agency in the future, discouraging a frank and open dialogue among agency employees during the formulation of scientific papers NOAA creates, environmental reports, and inter-agency collaborations on responses to scientific data and memoranda. These deliberations are essential to ensuring that the right information is delivered to public in the form of reports, analyses, and other publications and announcements. In addition, these deliberations are important to determining whether—and what type of—official responses are needed to address interpretations of scientific information on climate matters by media and outside groups. Failure to have these frank deliberations could cause confusion if incorrect or

10 misrepresented climate information remained in the public sphere.

Second Graff Decl., ECF No. 17-2 at 2–3.

Despite the fact that the Act was enacted several years

ago, there are few cases which analyze what is required under

the foreseeable harm standard. The most in-depth discussion

occurred in Rosenberg v. Dep’t of Def.,

(D.D.C. 2018). In Rosenberg, a reporter from the Miami Herald

sought emails relating to a military task force in Guantanamo

Bay, Cuba.

. The agency released several redacted

documents and argued the redactions were proper under FOIA

Exemption 5.

at 77–80. Applying the “foreseeable harm”

standard, the court found that the agency had failed to explain

how the disclosures of information withheld under Exemption 5

would harm the agency’s deliberative process.

. The

court noted that the foreseeable harm requirement does not go

“so far as to require the government to identify harm likely to

result from disclosure of each of its Exemption 5 withholdings”

but the government at least needed to do more than

“perfunctorily state that disclosure of all the withheld

information—regardless of category or substance—would jeopardize

the free exchange of information.” Id.(emphasis in original).

The Court finds the analysis in Rosenberg persuasive and

agrees that the text and purpose of the Act both support a

11 heightened standard for an agency’s withholdings under

Exemption 5. The text of the Act states an agency may only

withhold information if “the agency reasonably foresees that

disclosure would harm an interest protected by [a FOIA]

exemption.”

(a)(8)(A). In other words, even if an

exemption applies, an agency must release the document unless

doing so would reasonably harm an exemption-protected interest.

See Rosenberg,

. The purpose of the Act was

to establish a “presumption of openness,” and its passing was

based on the recognition that “from the beginning, agencies have

taken advantage of these exemptions to withhold any information

that might technically fit.” 162 Cong. Rec. H3714-01, H3717162

(2016)(noting that although some agencies “have made an effort

to comply with the letter of the law, very few have complied

with the spirit of the law”). To that end, Congress sought to

require an agency to “first determine whether [it] could

reasonably foresee an actual harm” before the agency claims an

exemption.

Furthermore, an “inquiry into whether an agency

has reasonably foreseen a specific, identifiable harm that would

be caused by a disclosure would require the ability to

articulate both the nature of the harm and the link between the

specified harm and specific information contained in the

material withheld.” H.R. REP. NO. 114-391, at 9 (2016).

12 Applying the standard to this case, the Court finds that

the declarations and supporting Vaughn indexes fall short of

what is required under the Act. 4 In Mr. Graff’s first declaration

he explained that release of the withheld information “could

have a chilling effect on the discussion within the agency in

the future” and “discourage[] a frank and open dialogue among

agency employees.” See Graff Decl., ECF No. 14-2 at 4. He

further explained in his second declaration that the

“foreseeable harm” in releasing the withheld information was

that it “could have a chilling effect on the discussions within

the agency” and added that these “deliberations are essential to

ensuring that the right information is delivered to [the]

public” and that failure “to have these frank deliberations

could cause confusion if incorrect or misrepresented climate

information remained in the public sphere.” Second Graff Decl.,

ECF No. 17-2 at 2–3. These general explanations of the

possibility of a “chilling effect” fall short of articulating “a

link between the specified harm and specific information

4 In its cross-motion for summary judgment and opposition Commerce failed to engage with the reasonably foreseeable standard. Indeed, the only response that Commerce advanced was that no case law supported Judicial Watch’s argument that a heightened standard exists. See Def.’s Reply, ECF No. 17 at 2. (noting Judicial Watch fails to cite any legal support for the standard). 13 contained in the material withheld.” See H.R. REP. NO. 114-391, at

9 (2016).

The Revised Vaughn Index, although seemingly more specific,

contains comparable boiler plate language to justify the

redactions. For each withheld document Commerce simply states

that “the redacted material is being withheld under exemption

(b)(5)” and that the “release of the redacted material would

have the foreseeable harm of discouraging a frank and open

dialogue among interagency staff.” See, e.g., Revised Vaughn

Index, ECF No. 17-3 at 1-6 (using identical language to explain

claim of exemption for each page). If the mere possibility that

disclosure discourages a frank and open dialogue was enough for

the exemption to apply, then Exemption 5 would apply whenever

the deliberative process privilege was invoked regardless of

whether disclosure of the information would harm an interest

protected by the exemption.

However, in enacting the legislation, Congress intended

that the technical application of an exemption was not

sufficient without a showing that disclosure also harmed an

interest the exemption sought to protect in the first place.

Commerce has provided no explanation as to why disclosure is

likely to discourage frank and open dialogue as to the specific

withholdings—or categories of withholdings—in this case. See

Rosenberg,

(noting that a categorical

14 approach in which an agency identifies the harm likely to result

from each disclosure of certain categories of documents is

sufficient). Commerce simply posits that such disclosures “could

chill speech” and could have an effect on interagency

discussion. See Second Graff Decl., ECF No. 17-2 at 2 (emphasis

added). The question is not whether disclosure could chill

speech, but rather if it is reasonably foreseeable that it will

chill speech and, if so, what is the link between this harm and

the specific information contained in the material withheld. In

other words, the Act requires more than speculation, which is

all that Commerce has provided through its declarations and

Vaughn indexes.

Because Commerce has failed to satisfactorily show that the

redactions under Exemption 5 would result in reasonably

foreseeable harm to its deliberative process, the Court denies

Commerce’s motion. However, the Court will allow Commerce to

supplement its declaration on remand to satisfy the “foreseeable

harm” standard, rather than grant summary judgment in Judicial

Watch’s favor. As the agency will have another opportunity to

supplement its declarations as to Exemption 5, the Court need

not address the issue of whether further segregation of the

redacted information from information that may be disclosed is

possible. See Sussman v. U.S. Marshals Serv.,

(D.C. Cir. 2007)(stating a district court must make

15 specific findings of segregability regarding the documents to be

withheld, “before approving the application of a FOIA

exemption”).

IV. Conclusion

For the reasons stated above, 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. An appropriate order accompanies this Memorandum

Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge March 22, 2019

16