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 seeks

records of communications between Thomas Karl, a NOAA scientist,

and John Holdren, Director of the White House Office of Science

and Technology Policy, from January 20, 2009, through January

20, 2017. In March 2019, this Court, in response to the parties’

initial cross motions, denied Commerce’s Motion for Summary

Judgment and held in abeyance Judicial Watch’s Motion for

Summary Judgment 1 in order to provide Commerce with the

1 The Court granted Judicial Watch’s motion to the extent it sought a ruling that Commerce must provide a more detailed Vaughn Index, and denied Judicial Watch’s motion to the extent it sought a ruling that Commerce must provide the withheld information forthwith. See Order, ECF No. 20. 1 opportunity to supplement its declaration to satisfy the

“foreseeable harm” standard set forth in the FOIA Improvement

Act (“FIA”),

Stat. 538. See Judicial

Watch, Inc. v. Dep’t of Commerce,

(D.D.C. 2019).

Pending before the Court are the parties’ second 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, Commerce’s

Renewed Motion for Summary Judgment is GRANTED, the portion of

Judicial Watch’s initial Motion for Summary Judgment that was

held in abeyance is DENIED, and Judicial Watch’s Second Motion

for Summary Judgment is DENIED.

I. Background

A. Factual Background

The following facts are not in dispute. Judicial Watch

submitted a FOIA request to NOAA on February 6, 2017, requesting

“[a]ny and all records of communications between NOAA scientist

Thomas Karl and Director of the Office of Science and Technology

Policy at the White House John Holdren” between “January 20,

2009 through January 20, 2017.” Compl., ECF No. 1 at 2 ¶ 2. 2

2When 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 “NOAA confirmed that it received the request on February 8,

2017, assigning the request Tracking Number DOC-NOAA-2017-

000580.” Id. at ¶ 7. Since this action has been pending,

Commerce has “produced over 900 pages of records consisting of

email communications between Thomas Karl and John Holdren . . .

.” Pl.’s Mot., ECF No. 16-1 at 9. What remains at issue are

Commerce’s redactions to a total of 48 pages. Def.’s Renewed

Mot. for Summ. J., ECF No. 23 at 4.

B. Procedural History

On May 15, 2019, Commerce filed a Renewed Motion for

Summary Judgment. See Def.’s Mot., ECF No. 23. Commerce

submitted a third declaration of Mark H. Graff, NOAA’s FOIA

Officer, to support its renewed motion for summary judgment, see

Third Decl. of Mark H. Graff (“Third Graff Decl.”), ECF No. 23-

2; as well as an updated Vaughn index, Def.’s Renewed Mot. for

Summary J. (“Def.’s Mot.), Ex. 2, ECF No. 23-2. On June 11,

2019, Judicial Watch filed a second Cross-Motion for Summary

Judgment/Opposition challenging the redactions made by Commerce

to certain pages of produced documents on the basis of Exemption

5. Pl.’s Cross-Mot., ECF No. 25 at 9. 3 Commerce filed its

Reply/Opposition on July 15, 2019, see Def.’s Reply, ECF No. 26;

3 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 Opp’n, ECF No. 15 at 9. 3 and on July 22, 2019, Judicial Watch filed its Rely, see Pl.’s

Reply, ECF No, 28. 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

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.

4 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,

(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 marks

omitted).

B. FOIA Exemptions

Congress enacted FOIA to “open up the workings of

government to public scrutiny through the disclosure of

government records.” Judicial Watch, Inc.,

(quoting Stern v. FBI,

(D.C. Cir. 1984)

(internal quotation marks and alterations omitted). Although the

legislation is aimed toward “open[ness] . . . of government,”

5 id.; 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) (internal quotation

marks and citations 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).

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).

“Ultimately, an agency’s justification for invoking a FOIA

6 exemption is sufficient if it appears logical or plausible.”

Judicial Watch, Inc. v. U.S. Dep't of Def.,

(D.C. Cir. 2013) (internal quotation marks omitted).

III. Analysis

Commerce argues that it properly invoked Exemption 5 for

its withholdings for two reasons: (1) the redactions in the

documents are protected under the deliberative process

privilege; and (2) the documents in their entirety are protected

under the presidential communications privilege. Def.’s Mot.,

ECF No. 23 at 6-7. Both of these privileges fall under Exemption

5. See Loving v. Dep't of Def.,

(D.C. Cir.

2008). As explained below, the Court finds that the redactions

in the documents are protected under the deliberative process

privilege. Accordingly, the Court need not address whether the

documents in their entirety are protected by the presidential

communications privilege.

A. Exemption 5

As the Court of Appeals for the District of Columbia

Circuit (“D.C. Circuit”) has explained,

FOIA Exemption 5 exempts from public disclosure “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.”

(b)(5). Exemption 5 incorporates the privileges that the Government may claim when litigating against a private party, including the governmental attorney-client

7 and attorney work product privileges, the presidential communications privilege, the state secrets privilege, and the deliberative process privilege. See Baker & Hostetler LLP v. Department of Commerce,

(D.C. Cir. 2006).

. . . . This “privilege rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news.” Department of the Interior v. Klamath Water Users Protective Association,

, 8–9,

,

(2001). The privilege serves to preserve the “open and frank discussion” necessary for effective agency decisionmaking.

,

. The privilege protects “documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” NLRB v. Sears, Roebuck & Co.,

,

,

(1975) (internal quotation marks omitted). As we have stated, officials “should be judged by what they decided, not for matters they considered before making up their minds.” Russell v. Department of the Air Force,

(D.C. Cir. 1982) (brackets omitted).

To qualify for the deliberative process privilege, [the information] must be both pre- decisional and deliberative. See Coastal States Gas Corp. v. Department of Energy,

(D.C. Cir. 1980). “[The information] is ‘predecisional’ if it precedes, in temporal sequence, the ‘decision’ to which it relates.” Senate of the Commonwealth of Puerto Rico v. Department of Justice,

(D.C. Cir. 1987); see also Coastal States,

(pre- decisional documents are “generated before the adoption of an agency policy”). And [the information] is deliberative if it is “a part of the agency give-and-take—of the deliberative process—by which the decision

8 itself is made.” Vaughn v. Rosen,

(D.C. Cir. 1975); see also Coastal States,

.

Abtew v. U.S. Department of Homeland Sec.,

(D.C. Cir. 2015). The deliberative process privilege is to be

construed “as narrowly as consistent with efficient Government

operation.” United States v. Philip Morris,

(D.D.C. 2003)(quoting Taxation with Representation Fund v. IRS,

(D.C. Cir. 1981)). “[W]hen claiming the

deliberative process privilege, the agency must, at the very

least, explain in its Vaughn Indices and/or declarations, for

each contested document withheld in part or in full, (1) what

deliberative process is involved, (2) the role played by the

documents [at] issue in the course of that process, and (3) the

nature of the decisionmaking authority vested in the office or

person issuing the disputed document[s], and the positions in

the chain of command of the parties to the documents.” Ctr. for

Biological Diversity (“CBD”) v. U.S. Envtl. Prot. Agency,

, 147 (D.D.C. 2017)(internal quotation marks and

citations omitted).

In 2016, Congress passed the FIA, which, relevant to this

case, 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

9 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 FIA, 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 [FIA], an

agency must release a record—even if it falls within a FOIA

exemption—if releasing the record would not reasonably harm an

exemption—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).

To satisfy the foreseeable harm standard, “an agency must

identify specific harms to the relevant protected interests that

10 it can reasonably foresee would actually ensue from disclosure

of the withheld materials and connect the harms in a meaningful

way to the information withheld.” Ctr. for Investigative

Reporting v. U.S. Customs and Border Prot.

,

105 (D.D.C. 2019) (cleaned up). “[G]eneric, across-the-board

articulations of harm that largely repeat statements already

found in the Vaughn Index,”

(internal quotation marks

and citation omitted); and “boilerplate” or “nebulous

articulations of harm are insufficient,” Judicial Watch, Inc. v.

U.S. Dep’t of Justice (Judicial Watch II), No. CV 17-0832 (CKK),

, at *5 (D.D.C. Sept. 24, 1999). Instead, the

agency needs to provide “context or insight into the specific

decision-making processes or deliberations at issue, and how

they in particular would be harmed by disclosure.” Ctr. for

Investigative Reporting, 436 F.Supp.3d at 107 (quoting Judicial

Watch II,

, at *5). In satisfying this burden,

“agencies may take a categorial approach and group together like

records . . . but when using a categorical approach, an agency

must provide more than nearly identical boilerplate statements

and generic and nebulous articulations of harm.”

(internal quotation marks and citations omitted).

11 1. Deliberative Process Privilege 4

Commerce has submitted declarations of Mr. Graff to explain

why the withheld information falls within the deliberative

process privilege. In his first declaration, Mr. Graff states

that

NOAA withheld portions of emails discussing drafts of future scientific papers including the National Climate Assessment, substantive discussions of draft reports, deliberative discussions of the scientific interpretation of solar wind data, an opinion-based discussion of postures and/or impressions on a CATO Report and how to calculate global temperature data, deliberations on climate change misdirection and draft talking points, opinions-based deliberations on a ranking exercise and scientific news articles, deliberations and opinions for a draft Memorandum for the President, and similar pre- decisional, deliberative conversations that were shared in the open and frank exchange of ideas, drafts, and postures between agencies.

Graff Decl., ECF No. 14-2 at 3 ¶ 12. Mr. Graff states that “the

information was predecisional because NOAA was still considering

its position on certain environmental reports, a draft climate

and annual report, draft talking points, ranking exercises,

discussions and opinions for a draft Memorandum intended for the

President of the United States, and substantive responses and

4 The Court did not address whether the withholdings fall within the scope of the deliberative process privilege in its prior Opinion in this case. Accordingly, the Court considers the declarations and Vaugh indices attached to Commerce’s initial summary judgment briefing as well as Judicial Watch’s opposition. 12 scientific interpretations of environmental data.”

at 3-4 ¶

13. Mr. Graff states that

the information was deliberative because it reflects the internal comments, discussions, and recommendations of various members of NOAA’s staff, The National Environmental Satellite, Data, and Information Service (NESDIS), and/or White House Office of Science and Technology Policy (OSTP) regarding the interpretation of scientific data, responses to environmental reports, and drafting reports and scientific papers.

at 4 ¶ 14. The second Vaughn index describes the

predecisional and deliberative nature of each piece of withheld

information. See Second Vaughn Index, ECF No. 17-3 at 1-30.

The Court has carefully reviewed Mr. Graff’s declaration

and the second Vaughn index. Mr. Graff’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. See Abtew,

. Mr.

Graff’s declaration and the second Vaughn index taken together

describe the deliberative process involved and the role played

by the withheld information. See CBD, 279 F. Supp. 3d at 147.

Finally, Mr. Graff’s declaration and the second Vaughn index

taken together explain the “nature of the decisionmaking

13 authority” and the “chain of command” of the persons involved in

the email chains. Id.

Judicial Watch’s objections—that Mr. Graff’s initial

“declaration and [the initial] Vaughn Index do not adequately

support its claims of deliberative process privilege” because

“each of the withheld emails in question appears either: 1)

deliberative but not likely to chill future government decision-

making if released; 2) not genuinely deliberative, but just

conducting government business; or 3) not deliberative of a

government policy decision, but only about application of

existing policy,” Pl.’s Consol. Br. in Opp’n to Mot. for Summ.

J. and in Supp. of Cross Mot. Summ. J., ECF No. 16-1 at 10; are

unpersuasive in light of the detailed information provided in

the second and third Vaughn indices and Mr. Graff’s initial and

third declarations. Accordingly, the Court in its discretion

declines to conduct an in camera review of the withheld

material. Mobley v. Cent. Intelligence Agency,

(D.C. Cir. 2015).

2. Foreseeable Harm

Commerce has submitted the Third Declaration of Mr. Graff

to explain why, in Commerce’s opinion, release of the

information being withheld under Exemption 5 would cause

reasonably foreseeable harm to the interests protected by that

14 Exemption. 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.

Third Graff Decl., ECF No. 23-2 at 3-4 ¶ 12.

Mr. Graff states that disclosure of the information being

withheld in the first three categories would pose the same

foreseeable harm. Mr. Graff 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.”

at 4 ¶ 13. 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.”

at 4 ¶

15 14. Mr. Graff 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,” Mr. Graff 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.”

at 4 ¶

15.

Mr. Graff’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. See Ctr. for Investigative Reporting, 436 F.

Supp. 3d at 107. 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.

16 With regard to the fourth category of withheld material,

Mr. Graff 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.” Third

Graff Decl., ECF No. 23-2 at 5 ¶ 16. Furthermore, “if draft

press talking points are released, and the draft differs from

what was actually released to the press, it would cause

significant public confusion—incorrectly implicating an agency

change of posture, improperly suggesting deceit or concealment

if draft topics are ultimately not discussed with the press, or

incorrectly implying disagreement on agency positions while the

wording, posture, and topics are still being formed.” Id.

Finally, “if disclosed, those who debate the press statements

and talking points will not be candid in their reviews,

diminishing the quality and vigor of inter- and intra-agency

discussions before agency statements are made to the press.” Id.

at 5 ¶ 17.

Mr. Graff’s explanation for this category is also

sufficient to satisfy the foreseeable harm standard. As with the

first three categories of withheld information, the explanation

does not repeat the justifications for withholding the

information provided in the Vaughn index, but rather describes

the specific harms to the deliberative process that would result

17 from disclosure of the information. See Ctr. for Investigative

Reporting, 436 F. Supp. 3d at 107. And again, while Commerce has

taken a categorical approach, 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.

Judicial Watch acknowledges that the deliberative process

privilege protects: (1) “preserving frank discussions between

subordinates and superiors”; and (2) “preventing public

confusion”; but argues that Commerce has not met its burden of

showing foreseeable harm to those protected interests because

Commerce’s “real reason” for withholding the information is fear

of “agency embarrassment” and “painting the agency in a negative

light” which “Congress has eliminated as lawful grounds for

withholding under FIA.” Pl.’s Consol. Br. in Opp’n to Def.’s

Renewed Mot. for Summ. J. and in Supp. of Pl.’s Second Cross-

Mot. for Summ. J. (“Pl.’s Opp’n and Cross Mot.”), ECF No. 24 at

8 (citing 162 CONG. REC. H3714, 114th Cong. 2nd Sess., Vol. 162

No. 93, Statement of Congressman Meadows (June 13, 2016) (noting

that pursuant to the FIA, “agencies may no longer withhold

information that is embarrassing or could possibly paint the

agency in a negative light simply because an exemption may

technically apply. This will go a long way toward getting rid of

18 the withhold-it-because-you-want-to exemption.”). 5 Judicial Watch

also argues that there is no foreseeable harm of confusion to

the public because “[e]veryone already knows that scientists can

and do occasionally disagree.” Id. at 9. Finally, Judicial Watch

disputes that the “public confusion” interest justifies

withholding the fourth category of information apparently

because the fact that government scientists occasionally

disagree with each other is not ground for invoking the “public

confusion” interest. Id. at 12-14.

The Court finds Judicial Watch’s arguments unpersuasive.

Commerce has met its burden of articulating the foreseeable harm

disclosure of the information would have on the ability of

agency scientists to “engage in meaningful scientific debate and

collaboration” to arrive at “quality agency decisions.” Third

Graff Decl., ECF No. 23-2 at 4 ¶ 14. This is entirely

distinguishable from withholding information that could

embarrass an agency or paint it in a negative light. Similarly,

Judicial Watch’s argument regarding the fourth category of

withheld materials is non responsive to Commerce’s argument.

5 The Court rejects Judicial Watch’s contention that Mr. Graff’s declaration “describes a culture of fear and secrecy within NOAA,” Pl.’s Opp’n and Cross Mot.”), ECF No. 24 at 9-11; and its argument based on that assertion as Judicial Watch has clearly mischaracterized Mr. Graff’s third declaration. 19 B. Segregability

Under FOIA, “even if [the] agency establishes an exemption,

it must nonetheless disclose all reasonably segregable,

nonexempt portions of the requested record(s).” Roth v. U.S.

Dept. of Justice,

(D.C. Cir. 2001)

(internal quotation marks and citation omitted). “[I]t has long

been the rule in this Circuit that non-exempt portions of a

document must be disclosed unless they are inextricably

intertwined with exempt portions.” Wilderness Soc'y v. U.S.

Dep't of Interior,

(D.D.C. 2004) (quoting

Mead Data Cent., Inc. v. U.S. Dep't of Air Force,

(D.C. Cir. 1977)). Thus, an agency must provide “a detailed

justification and not just conclusory statements to demonstrate

that all reasonably segregable information has been released.”

Valfells v. CIA,

(D.D.C. 2010)

(internal quotation marks and citation omitted).

However, “[a]gencies are entitled to a presumption that

they complied with the obligation to disclose reasonably

segregable material,” which must be overcome by some “quantum of

evidence” from the requester. Sussman v. U.S. Marshals Serv.,

(D.C. Cir. 2007). Commerce represents that

it has “carefully reviewed each responsive record on a page-by-

page and line-by-line basis in an attempt to identify reasonable

segregable, non-exempt information” and has determined that

20 there no more reasonably segregable information and that all

segregable information has been produced. Def.’s Mot, ECF No. 23

at 10; Third Graff Decl., ECF No. 23-2 at 6 ¶¶ 20-23. Judicial

Watch, citing persuasive authority outside of this circuit,

asserts that Commerce’s “declaration offers only boilerplate

language about a segregability review.” Pl.’s Consol. Br. in

Opp’n to Mot. for Summ. J. and in Supp. of Cross Mot. Summ. J.,

ECF No. 16-1 at 21.

Defendants have submitted thoroughly detailed declarations,

in combination with supporting documentation, which support and

satisfy FOIA's segregability requirement. See, e.g., Johnson,

310 F. 3d at 776; Loving v. Dep't of Defense,

(D.C. Cir. 2008). Contrary to Judicial Watch’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.” Third Graff Decl., ECF No. 23-2 at 6 ¶ 20; see

also Taylor Energy Co., LLC v. U.S. Dep’t of Interior,

(D.D.C. 2017). Furthermore, Judicial Watch has

provided no basis to question the good-faith presumption

afforded to these representations. See Johnson, 310 F. 3d at

776. Accordingly, the Court concludes that Commerce has

satisfied its segregability obligations under FOIA.

21 IV. Conclusion

For the reasons stated, Commerce’s Renewed Motion for

Summary Judgment is GRANTED, the portion of Judicial Watch’s

initial Motion for Summary Judgment that was held in abeyance is

DENIED, and Judicial Watch’s Second Motion for Summary Judgment

is DENIED. An appropriate order accompanies this Memorandum

Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge November 25, 2020

22