UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CENTER FOR INVESTIGATIVE REPORTING,

Plaintiff,

v. No. 18-cv-1599 (DLF)

UNITED STATES DEPARTMENT OF THE INTERIOR,

Defendant.

MEMORANDUM OPINION

Before the Court is the U.S. Department of the Interior’s Motion for Summary Judgment,

Dkt. 16, and the Center for Investigative Reporting’s Cross-Motion for Summary Judgment, Dkt.

18. Based on the concessions of both parties, only one contested issue remains in this Freedom

of Information Act (FOIA) case: whether the Department has shown that disclosure of the

withheld information would result in reasonably foreseeable harm to the Department’s

deliberative processes. For the reasons that follow, the Court concludes that the Department has

not, and thus the Court will grant in part and deny without prejudice in part the Department’s

Motion for Summary Judgment and deny without prejudice the Center’s Cross-Motion for

Summary Judgment.

I. BACKGROUND

A. The Migratory Bird Treaty Act (MBTA) Request

On February 9, 2018, the Center submitted a FOIA request to the Department’s Office of

the Solicitor that sought “any emails, text messages, or other communications that mention the

Migratory Bird Treaty Act [(MBTA)]” and “any communications between the solicitor’s office and its lawyers and companies, individuals, organizations and state or local officials . . . between

January 2017 and the present.” Def.’s Statement of Facts, Dkt. 16-2, ¶ 1. 1 The Center also

asked for “any recordings of video calls or conference calls where the [MBTA] was discussed.

For example: Dan Jorjani’s schedule for May 25, 2017 shows a video call on MBTA from 12:30

to 1:30.” Id. And it requested “the personal schedule of Principal Deputy Solicitor Dan Jorjani

and Kevin Haugrud for 2017.” Id.

The Department conducted a search and located approximately 7,554 pages of responsive

records. Id. ¶ 7. It produced these records to the Center, but it withheld portions of certain

records under FOIA Exemptions 2, 5, and 6. Id. ¶ 9.

B. The Sea Level Requests

On February 9, 2018, the Center also submitted a FOIA request to the Department’s

National Park Service (NPS) related to sea level changes. Id. ¶ 11. That request sought “[a]ny

emails, text messages[,] or other communications concerning ‘Sea Level Change in the National

Park System’ report . . . between 2016 and the present”; and “[a]ny drafts of the report called

‘Sea Level Change in the National Park System’ or any drafts of reports on sea level rise and

storm surge for individual parks or for all coastal parks that were produced by Maria Caffrey,

Rebecca Beavers[,] or other scientists.” Id.

The NPS conducted a search and released 3,075 pages of responsive records. Id. ¶¶ 20–

21. The NPS withheld portions of these records under FOIA Exemptions 5 and 6. Id. ¶ 14.

On April 12, 2018, the Center submitted a second request to the NPS, seeking: “[a]ny and

all documents or recordings related to NPS report entitled Sea Level and Storm Surge

1 The Center does not dispute the Department’s Statement of Facts, apart from any legal assertions. Pl.’s Reply, Dkt. 23, at 2. Because no genuine disputes of material fact exist, this opinion cites only to the Department’s Statement of Facts.

2 Projections for National Parks”; “emails sent or received by people in the Park Service and the

Interior Department related [to] this report”; “emails sent or received by others[,] including but

not limited to Maria Caffrey (at her Colorado.edu address and her partner.nps.gov addresses) and

Brendan Moynahan, [at] [email protected]”; “original word documents of all

versions of this report dating back to August 2016”; and “any recordings of conference calls or

video calls or other videos or recordings related to this report.” Id. ¶ 23.

The NPS conducted a search and released 1,691 pages of responsive records. Id. ¶ 29.

The NPS also determined that 1,600 pages of the 3,075 pages that were responsive to the

Center’s other request were also responsive to this request. Id. ¶ 30. It withheld portions of

these records under FOIA Exemptions 2, 4, 5, 6, and 7(A). Id. ¶ 25.

C. Summary Judgment Motions

The Center filed a complaint challenging the Department’s responses to these requests.

See Dkt. 1. On April 5, 2019, the Department filed a motion for summary judgment. Dkt. 16.

The Department argued that it had satisfied its obligation under FOIA to perform a reasonable

search and that it had justifiably withheld portions of responsive records under FOIA

Exemptions 4, 5, 6, and 7(A). See Def.’s Mot. for Summ. J. 10–21. The Department explained

that Exemption 5 protects documents “that would be privileged in the civil discovery context”

and invoked the attorney-client privilege, the attorney work-product doctrine, and the executive

deliberative process privilege to withhold information under that exemption. Id. at 11. And in

invoking the deliberative process privilege, the Department argued that the withheld information

was both predecisional and deliberative, as that privilege requires. Id. at 12–15.

In its combined opposition and cross motion for summary judgment, the Center did not

challenge these issues: the adequacy of the search; the information withheld under Exemption 4;

3 the information withheld under Exemption 6; and the information withheld under Exemption 5

based on the attorney-client privilege or the attorney work-product doctrine. See Pl.’s Opp. and

Cross-Mot., Dkt. 18, 1–2, 5–7. It thus conceded them. Hopkins v. Women’s Div.,

(D.D.C. 2003) (“It is well understood in this Circuit that when a plaintiff files an

opposition to a dispositive motion and addresses only certain arguments raised by the defendant,

a court may treat those arguments that the plaintiff failed to address as conceded.”).

The Center raised just two points. It argued that the Department failed to show that it

“‘reasonably foresees that disclosure’” of the information withheld under Exemption 5 based on

the deliberative process privilege “would harm an interest protected by an exemption.’” Pl.’s

Opp. and Cross-Mot. 3 (quoting

(a)(8)(A)(i)). And it argued that the Department

failed to establish that Exemption 7(A) applies.

at 7–8. The Department subsequently agreed

to produce the records it previously withheld under Exemption 7(A) along with “a portion of the

records it withheld under deliberative process,” rendering this second issue moot.

The remaining question the Court must decide is whether the Department has shown that

disclosure of this information withheld under Exemption 5 would result in foreseeable harm to

the Department’s deliberative processes.

II. LEGAL STANDARD

A. Summary Judgment

Rule 56 of the Federal Rules of Civil Procedure mandates that “[t]he court shall grant

summary judgment if the movant shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). When a

federal agency moves for summary judgment in a FOIA case, the court views all facts and

inferences in the light most favorable to the requester, and the agency bears the burden of

4 showing that it complied with FOIA. Chambers v. U.S. Dep’t of Interior,

(D.C. Cir. 2009).

To prevail under Rule 56, a federal agency “must prove that each document that falls

within the class requested either has been produced, is unidentifiable, or is wholly exempt from

[FOIA’s] inspection requirements.” Perry v. Block,

(D.C. Cir. 1982) (per

curiam) (internal quotation marks omitted). “The system of disclosure established by the FOIA

is simple in theory”: a “federal agency must disclose agency records unless they may be withheld

pursuant to one of the nine enumerated exemptions listed in [5 U.S.C.] § 552(b).” DOJ v. Julian,

(1988). The agency bears the burden of justifying the application of any

exemptions, “which are exclusive and must be narrowly construed.” Mobley v. CIA,

(D.C. Cir. 2015).

Federal courts rely on agency affidavits to determine whether an agency complied with

FOIA. Perry,

. Agency affidavits are entitled to a presumption of good faith,

SafeCard Servs. v. SEC,

(D.C. Cir. 1991), and a court may grant summary

judgment based on an affidavit if it contains reasonably specific detail and neither contradictory

record evidence nor evidence of bad faith calls it into question, Judicial Watch v. U.S. Secret

Serv.,

(D.C. Cir. 2013). The “vast majority of FOIA cases can be resolved on

summary judgment.” Brayton v. Office of the U.S. Trade Representative,

(D.C. Cir. 2011).

III. ANALYSIS

FOIA 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). This includes all documents that would

5 normally be privileged in the civil discovery context. NLRB v. Sears, Roebuck & Co.,

(1975).

One such privilege is the deliberative process privilege, which the Department has

invoked to withhold certain documents under Exemption 5. The deliberative process privilege

allows agencies to withhold “documents reflecting advisory opinions, recommendations and

deliberations comprising part of a process by which governmental decisions and policies are

formulated.” Petroleum Info. Corp. v. United States Dep’t of Interior,

(D.C. Cir. 1992) (internal quotation and citation omitted). To invoke the deliberative process

privilege, an agency must show that the information withheld is both “predecisional” and

“deliberative.” Petroleum Info. Corp.,

.

The Center does not contest that the Department properly invoked the deliberative

process privilege to withhold information under Exemption 5. The Center instead invokes a

2016 amendment to FOIA that applies “even if a record would otherwise be exempt.” Pl.’s Opp.

and Cross-Mot. 3. That amendment allows an agency to “withhold information under [FOIA]

only if . . . the agency reasonably foresees that disclosure would harm an interest protected by an

exemption described in subsection (b) . . . or disclosure is prohibited by law.”

(a)(8)(A)(i). The Center asserts that the Department failed to meet this foreseeable harm

requirement. Pl.’s Opp. and Cross-Mot. 3.

To make this argument, the Center relies heavily on a recent case from this Court that

interprets this FOIA provision. Judicial Watch, Inc. v. Dep’t of Commerce (“Judicial Watch I”),

(D.D.C. 2019). In that case, the court concluded that both the “text and

purpose” of § 522(a)(8)(A)(i) “support a heightened standard for an agency’s withholdings under

Exemption 5.” Id. at 100. To satisfy its obligations, the agency must “articulate both the nature

6 of the harm and the link between the specified harm and specific information contained in the

material withheld.” Id. (quotation omitted). This task “requires more than speculation”— “[t]he

question is not whether the purported harms could” occur, but whether “it is reasonably

foreseeable” that they will occur. Id. at 101.

The Department does not challenge Judicial Watch I or offer a competing interpretation

of § 522(a)(8)(A)(i); it argues simply that it has satisfied its obligations under that provision. See

Def.’s Reply 3. And since the parties filed their briefs, several courts in this District have

followed the same approach as the court in Judicial Watch I. See Judicial Watch, Inc. v. U.S.

Dep’t of Justice (“Judicial Watch II”), No. 17-cv-0832 (CKK),

, at *5 (D.D.C.

Sept. 24, 2019) (holding that the government had failed to satisfy the foreseeable harm standard);

Ctr. for Investigative Reporting v. U.S. Customs & Border Prot., No. 18-cv-2901 (BAH),

, at *10 (D.D.C. Dec. 31, 2019) (same). The Court will do the same here.

A. Office of the Solicitor Withholding

There is only one record that the Office of the Solicitor withheld solely under the

deliberative process privilege. That record consists of “three pages of untitled, undated notes”

that were “attached to an email.” Supp. Moore Decl., Dkt. 22-1, ¶ 8. That email, in turn, “refers

to a draft ‘one-pager on the Dec. 22 M Opinion for the Secretary in preparation for his upcoming

budget hearings’ that the author was ‘developing.’”

The Department suggests that releasing this record would cause several harms. See

Moore Decl. ¶ 12–15. For example, the Department asserts that “given the on-going litigation

challenging the Opinion, disclosure of this record (like the other records [that the Office of the

Solicitor] withheld under Exemption 5) ‘could reasonably undermine the Department’s position

in the pending litigation and/or civil settlement negotiations,’” which “‘would significantly and

7 negatively impact SOL's perceived freedom to candidly discuss internal legal strategy.’” Def.’s

Reply 4 (quoting Supp. Moore Decl. ¶ 15)).

Though these harms are undoubtedly legitimate, the Department has not adequately

explained how disclosing this “particular” record—or some category of substantively related

records—“would harm the agency’s deliberative process.” Judicial Watch II,

, at *5. The Supplemental Moore Declaration merely asserts, without elaboration, that

these harms would result from disclosing “any” of the records that the Office of the Solicitor

withheld under the deliberative process privilege. Supp. Moore Decl. ¶ 12. This assertion falls

short of “connect[ing] the harms in any meaningful way” to the withheld notes, “such as by

providing context or insight into the specific decision-making processes or deliberations at issue,

and how they in particular would be harmed by disclosure.” Judicial Watch II,

, at *5. For instance, the Department does not say “who prepared” the notes, what the

notes were generally about, or how the notes were “ultimately used” in the deliberative process.

Ctr. for Investigative Reporting,

, at *10. These asserted harms, untethered to

any particular disclosure, are thus akin to the “general explanations and boiler plate language”

rejected in Rosenberg, Judicial Watch I, Judicial Watch II, and Center for Investigative

Reporting. Ctr. for Investigative Reporting,

, at *9.

B. National Park Service Withholdings

The Center challenges three categories of the Department’s National Park Service

withholdings.2 First, the NPS withheld emails that contained “discussions regarding one

employee’s suggested changes relating to the format for displaying data within [a] report.”

2 The NPS also withheld a fourth category of information, but during briefing the NPS agreed to release those records. See Def.’s Reply 7. That dispute is therefore moot.

8 Supp. Wilson Decl., Dkt. 22-2, ¶ 3. Second, it withheld an email that “contained internal

discussions concerning an opinion expressed by a peer reviewer.”

. Third, it withheld

emails that “contained internal communication summarizing the conversations related to a

different report, which is unrelated to this FOIA request and has not yet been finalized.”

.

The Department asserts virtually the same harms associated with releasing each category.

For the first two categories, the Department asserts that releasing this information “could inhibit

open discourse between researchers in the future for fear that expressing differences in opinion

on analyses or [on] how to present results could subject them to harassment by individuals who

disagree or who misinterpret their work and deliberations.”

¶¶ 3–4 (emphasis added). The

Department says that releasing the information in category two “could also have a chilling effect

on future participations in peer reviews or discussions aimed at improving NPS scientific

projects.”

(emphasis added). And similarly, the Department says that releasing the

information in category three

could subject NPS staff and peer reviewers who are working on and reviewing the draft report to undue harassment during the editorial process, which would not only impair the ability of NPS staff to complete that draft report but could have a chilling effect on future participation in peer reviews or discussions aimed at improving NPS scientific projects.

.

On the current record, the Department has not established a reasonably foreseeable link

between these harms and the specific information contained in the withheld records. First, the

Department merely asserts what could happen if this information were released. The Department

has not even asserted, let alone established, that it is reasonably foreseeable that disclosing these

records would lead to these harms. But the Department must show that disclosure would cause

reasonably foreseeable harms, not that it could cause such harms.

(a)(8)(A)(i).

9 The task of meeting this heightened standard “requires more than speculation.” Judicial Watch I,

. Thus, the court in Judicial Watch I rejected similarly speculative harms.

There the agency argued 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” and that failure “to have these frank deliberations could cause confusion if

incorrect or misrepresented climate information remained in the public sphere.” Yet the court

rejected those assertions as falling short “of articulating a link between the specified harm and

specific information contained in the material withheld.”

(quotation omitted). So too here.

Second, and as with the Office of the Solicitor’s withholdings, the Department has not

provided enough information about these record categories to establish a particular link between

their disclosure and these purported harms. Again, the Department must “connect the harms in

[a] meaningful way” to the withheld records, “such as by providing context or insight into the

specific decision-making processes or deliberations at issue, and how they in particular would be

harmed by disclosure.” Judicial Watch II,

, at *5.

The Department thus has failed to show that the withholdings discussed in this opinion

“would result in reasonably foreseeable harm to its deliberative process,” and so the Court must

deny the Department’s motion. Judicial Watch I,

. But “[i]n light of the

interests underlying the deliberative process privilege,” the Court will deny the Department’s

motion without prejudice. Judicial Watch II,

, at *5.

CONCLUSION

For the foregoing reasons, the Court grants in part and denies without prejudice in part

the Department’s Motion for Summary Judgment and denies without prejudice the Center’s

Cross-Motion for Summary Judgment. The parties shall jointly propose a schedule for further

10 proceedings on or before May 7, 2020. A separate order consistent with this decision

accompanies this memorandum opinion.

________________________ DABNEY L. FRIEDRICH April 7, 2020 United States District Judge

11