Judicial Watch, Inc. v. U.S. Department of Commerce ( 2020 )

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”), 5 U.S.C. § 552, 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”), Pub. L. No. 114-185, 130 Stat. 538. See Judicial
Watch, Inc. v. Dep’t of Commerce, 375 F. Supp. 3d 93, 101
(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., 762 F. Supp. 2d 123,
130 (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, 963 F.2d 453, 456 (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., 475 U.S. 574, 587 (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, 607 F.2d
339, 352 (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 5 U.S.C. § 552(a)(4)(B); but may rely on agency
declarations. See SafeCard Servs. v. SEC, 926 F.2d 1197, 1200
(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.” Id. (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., 375 F. Supp. 3d at 97
(quoting Stern v. FBI, 737 F.2d 84, 88 (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, 975 F.2d 871, 872 (D.C. Cir. 1992) (internal quotation
marks and citations omitted). As such, pursuant to FOIA's nine
exemptions, an agency may withhold requested information. 5
U.S.C. § 552(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.,
87 F.3d 508, 515 (D.C. Cir. 1996).
The agency bears the burden of justifying any withholding.
See Bigwood v. U.S. Agency for Int'l Dev., 484 F. Supp. 2d 68,
74 (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., 674 F. Supp. 2d 260, 267 (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, 830 F.2d 210, 224 (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., 715 F.3d 937, 941
(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., 550 F.3d 32, 37 (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.” 5
U.S.C. § 552(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, 473 F.3d 312, 321
(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,
532 U.S. 1, 8–9, 121 S. Ct. 1060, 149 L. Ed.
2d 87 (2001). The privilege serves to preserve
the “open and frank discussion” necessary for
effective agency decisionmaking. Id. at 9, 121
S. Ct. 1060. 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.,
421 U.S. 132, 150, 95 S. Ct. 1504, 44 L. Ed.
2d 29 (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, 682 F.2d 1045, 1048 (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, 617
F.2d 854, 866 (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, 823 F.2d 574, 585 (D.C. Cir. 1987);
see also Coastal States, 617 F.2d at 866 (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, 523 F.2d
1136, 1144 (D.C. Cir. 1975); see also Coastal
States, 617 F.2d at 866.
Abtew v. U.S. Department of Homeland Sec., 808 F.3d 895, 898-99
(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, 218 F.R.D. 312, 315
(D.D.C. 2003)(quoting Taxation with Representation Fund v. IRS,
646 F.2d 666, 667 (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, 279 F.
Supp. 3d 121, 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[.]” 5 U.S.C.
§ 552(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., 342 F. Supp. 3d
62, 72 (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. 436 F. Supp. 3d 90,
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,” id. at 106 (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),
2019 WL 4644029, 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, 2019 WL 4644029, 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.” Id. at 106(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.” Id. 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.
Id. 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, 808 F.3d at 898-99. 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, 806 F.3d 568, 588
(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.” Id. 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.” Id. 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.” Id. 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.” Id. 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, 642 F. 3d 1161, 1167 (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, 344 F. Supp. 2d 1, 18 (D.D.C. 2004) (quoting
Mead Data Cent., Inc. v. U.S. Dep't of Air Force, 566 F. 2d 242,
260 (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, 717 F. Supp. 2d 110, 120 (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.,
494 F. 3d 1106, 1117 (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, 550 F.3d 32, 41
(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, 271 F.
Supp. 3d 73, 97 (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.
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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
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