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Public Employees For Environmental Responsibility v. Office of Science and Technology Policy

November 8, 2011

PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY, PLAINTIFF,
v.
OFFICE OF SCIENCE AND TECHNOLOGY POLICY, DEFENDANT.



The opinion of the court was delivered by: Amy Berman Jackson United States District Judge

MEMORANDUM OPINION

Plaintiff Public Employees for Environmental Responsibility ("PEER") brings this lawsuit against Office of Science and Technology Policy ("OSTP"), alleging that OSTP violated the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2011), by failing to respond to PEER's August 11, 2010 FOIA request within the statutory period. Ex. 2 to Pl.'s Opp. & Cross-Mot. for Summ. J. ("Pl.'s Opp.") ¶ 3; Def.'s Mot. for Summ. J. ¶ 3. OSTP has produced 150 pages of responsive material, some of which was redacted in part or in full. OSTP argued that the 150 pages represented all of the responsive documents that PEER is entitled to under FOIA and that any documents not produced were exempt under 5 U.S.C. § 552(b)(5) or section 552(b)(6) ("Exemption 5" and "Exemption 6"). PEER countered, arguing that OSTP's withholdings and redactions under the Exemption 5 were excessive, but conceded that the withholdings and redactions under Exemption 6 were appropriate. Both parties have filed cross-motions for summary judgment [Dkt. #7 and #8]. For the following reasons, the Court finds summary judgment is inappropriate at this stage for either party because OSTP's Vaughn indeX is legally insufficient for the Court to determine whether the redactions and withholdings were proper under Exemption 5.

BACKGROUND

On March 9, 2009, President Barack Obama issued a memorandum ("the memorandum") assigning "to the Director of the Office of Science and Technology Policy (Director) the responsibility for ensuring the highest level of integrity in all aspects of the executive branch's involvement with scientific and technological processes." Ex. 1 to Def.'s Mot. for Summ. J. Specifically, the President instructed that "the Director shall confer, as appropriate, with the heads of executive departments and agencies, . . . [and, w]ithin 120 days from the date of this memorandum, . . . develop recommendations for Presidential action designed to guarantee scientific integrity throughout the executive branch." Id.

Pursuant to the memorandum, Director of OSTP, John P. Holdren ("the Director"), "asked federal agencies to identify employees to serve on a working group, whose purpose 'was to gather input and draft guidance and develop draft recommendations on scientific integrity for [the Director's] consideration." Def.'s Mot. for Summ. J. at 2, quoting Leonard Decl. ¶ 5. He also "solicited input from the public through a notice in the Federal Register," and "conferred with [the Office of Management and Budget] and other federal offices and agencies." Id. at 3, citing Leonard Decl. ¶¶ 6--7.

The entire process took much longer than expected and lasted approximately two years. Def.'s Mot. for Summ. J. at 3. In June 2010, the Director explained the delay to Congress:

[T]here were many, many drafts of those guidelines. And what took so long was the complexity of the task of developing guidelines that were both specific enough to add significant value . . . [and,] at the same time, would be general enough to be applicable across all the departments and agencies . . . that deal with science and technology matters. That proved to be a much more demanding task than any of us though at the outset and involved a great deal of debate with virtually every department, agency, and office with a stake in this matter.

Id., quoting Leonard Decl. ¶ 8. Then, on December 17, 2010, the Director issued "a Memorandum for the Heads of Executive Departments and Agencies on Scientific Integrity," which constituted the Director's "final determination of how to comply with the President's directive to 'develop recommendations for Presidential action designed to guarantee scientific integrity throughout the executive branch.'" Id. at 3--4, quoting Leonard Decl. ¶¶ 9--10. The Director's memorandum reflected the input he received from "the working groups, agency comments, public comments, OSTP staff expertise, comments from other federal executive branch offices and personnel, as well as his own judgment and experience." Leonard Decl. ¶ 10. It did not, however, officially adopt any of the draft recommendations or comments by any of the groups. Id. ¶¶ 9--11.

On August 11, 2010 -- prior to the release of the Director's memorandum -- PEER requested several documents from OSTP, pursuant to FOIA. Specifically, PEER requested:

(1) [A]ll communications received by OSTP from executive departments and agencies, including the Office of Management and Budget and offices and agencies within the Executive Office of the President concerning the content of these proposed policies, (2) all draft recommendations developed by the interagency panel created by OSTP with representatives from all of the major science offices and agencies, and (3) all decision memoranda, e-mails or other communications discussing the reasons for delay in publication of policies for presidential action as laid out in the March 9, 2009 Executive Memorandum.

Pl.'s Opp. at 1--2.

Though OSTP "immediately commenced a search" for the requested documents, it did not respond to PEER until September 20, 2010, when OSTP's general counsel sent a letter to PEER explaining that, "due to the extensive nature of the request, OSTP was unable to complete its review within the [statutory] response period," Leonard Decl. ¶¶ 13, 15; accord Pl.'s Opp. at 2, and "offered Plaintiff the option of narrowing its request to expedite a response," Def. Mot. for Summ. J. at 4--5. On October 13, 2010, during a telephone conference, OSTP's general counsel informed PEER that the agency was unable to provide "an expected delivery date for any of the requested documents." Pl.'s Opp. at 2.

PEER filed this lawsuit on October 19, 2010. Id.; Def.'s Mot. for Summ. J. at 5. On December 9, 2010, the parties agreed to a production schedule in which OSTP would produce all non-exempt responsive documents to PEER by February 2, 2011. Pl.'s Opp. at 2--3; Def.'s Mot. for Summ. J. at 5. Approximately 150 pages of documents were produced according to the production schedule. Pl.'s Opp. at 3.

OSTP states that its production complied with FOIA and that any withholdings are justified under Exemption 5 and Exemption 6. Def.'s Mot. for Summ. J. at 5. PEER, however, argues that the OSTP did not comply with FOIA because the produced documents contained "excessive redactions." Pl.'s Opp. at 3 ("Of the approximately 150 pages of records OSTP produced, 114 pages were ...


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