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Competitive Enterprise Institute v. Office of Science & Technology Policy

United States District Court, District of Columbia

February 10, 2016

Competitive Enterprise Institute, Plaintiff,
v.
Office of Science and Technology Policy, Defendant.

MEMORANDUM OPINION

Amit P. Mehta United States District Judge.

I. INTRODUCTION

Starting on January 8, 2014, the White House’s website hosted a video featuring the Director of the White House Office of Science & Technology Policy (OSTP), Dr. John Holdren, in which Holdren asserted that there was a growing body of evidence linking the weather phenomenon known as the “Polar Vortex” to global warming. A blog post on the White House’s website on that same date made a similar claim. Plaintiff Competitive Enterprise Institute (CEI) thereafter petitioned OSTP under the Information Quality Act to correct the two claims, asserting that the linkage between the Polar Vortex and global warming-a connection some scientists had questioned-was dubious. In a letter addressed to CEI dated June 6, 2014, OSTP refused to make the requested corrections.

CEI then filed a request under the Freedom of Information Act (FOIA) seeking two categories of records. First, CEI asked for documents concerning OSTP’s refusal to correct the claims made in the video and the blog post. Second, CEI sought disclosure of documents relating to OSTP’s production of the video. OSTP produced some documents with redactions and withheld others in full. According to OSTP, the redacted and withheld material is subject to the deliberative process privilege and thus exempt from production under FOIA Exemption 5, 5 U.S.C. § 552(b)(5).

Before the court are the parties’ cross-motions for summary judgment, along with a request by Plaintiff for discovery regarding the adequacy of OSTP’s search. For the reasons explained herein, Defendant’s Motion is granted in part and denied in part and Plaintiff’s Cross-Motion is granted in part and denied in part.

II. BACKGROUND

A. Factual Background

1. CEI’s Request for Correction

On January 8, 2014, a video entitled The Polar Vortex Explained in 2 Minutes, featuring the Director of OSTP, Dr. John P. Holdren, was posted to the White House website. Def.’s Mot. Summ. J., ECF No. 9 [hereinafter Def.’s Mot.], Exhibits [hereinafter Exs.], ECF No. 9-2, at 2.[1] In that video, Holdren stated that “[a] growing body of evidence suggests that the kind of extreme cold [, i.e., the Polar Vortex] being experienced by much of the United States as we speak is a pattern that we can expect to see with increasing frequency as global warming continues.” Id. at 3. That same day, OSTP Senior Communications Advisor and Web Editor Becky Fried wrote a blog post that featured the video and asserted that “we also know that this week’s cold spell is of a type there’s reason to believe may become more frequent in a world that’s getting warmer, on average, because of greenhouse-gas pollution.” Id.

Three months later, on April 14, 2014, CEI submitted to OSTP a request for correction of information under the Information Quality Act (also known as the Data Quality Act) (the “Request for Correction”). Id. at 2-12. CEI is a “public policy research and educational institute in Washington, D.C., dedicated to opposing overregulation and to promoting economically sustainable environmental policy.” Compl. ¶ 7. According to CEI, OSTP guidelines “require the agency to correct any published information that does not meet ‘basic standards of quality, including objectivity, utility and integrity.’”[2]

CEI asked OSTP to correct Holdren’s and Fried’s statements positing a connection between the Polar Vortex and global warming. CEI sought correction of these statements because “the evidence (including the conclusions of peer-reviewed scholarly articles) indicates that the kind of extreme cold experienced in the United States this past winter is not linked to global warming” and that “Holdren’s claim of ‘a growing body of evidence’ is contradicted by peer-reviewed studies.” Def.’s Mot., Exs. at 3. CEI summarized and cited numerous studies refuting and criticizing Holdren’s claim, id. at 4-9, and requested that OSTP remove the video and the blog post from the White House website and also take other corrective measures.

2. OSTP’s Response to CEI’s Request for Correction

On June 6, 2014, Tamara Dickinson, OSTP’s Principal Assistant Director for Environment and Energy, sent a three-page letter to CEI denying its Request for Correction (the “OSTP Letter”). Id. at 14-17. The OSTP Letter first acknowledged receipt of CEI’s Request for Correction and summarized it. Id. at 14. It then summarized Holdren’s statements in the video about the possible link between the Polar Vortex and global warming and stated that “Dr. Holdren firmly stands by the integrity and accuracy of his statements in the polar vortex video.” Id. at 15. The OSTP Letter continued: “The polar vortex video did not claim to present a comprehensive review of the scientific literature in its two-minute run time. Nor was it a recitation of relevant scientific literature that failed to reference contradictory citations. Rather, it was an expression of Holdren’s personal opinion and expert judgment on the balance of evidence.” Id. (emphasis added). The OSTP Letter noted that Holdren had used the words “‘I believe’” as “an expression of his expert judgment and personal opinion.” Id. (emphasis added). It characterized Fried’s blog post the same way: “Similarly, the blog post by Ms. Becky Fried expressed a viewpoint and opinion using language including ‘there’s reason to believe.’” Id.

The OSTP Letter then informed CEI why its Request for Correction was being denied. The Letter explained that OSTP’s “Information Quality Guidelines . . . state that opinions and policy positions are expressly excluded from the legal definition of ‘information, ’ and are not subject to OSTP’s Information Quality Act Guidelines.” Id. It concluded: “Accordingly, OSTP has determined that the Information Quality Act does not apply to the opinions stated by Dr. Holdren and Ms. Fried in the polar vortex video and blog post, respectively.” Id.

3. CEI’s Appeal and OSTP’s Denial

On June 19, 2014, CEI submitted an appeal to OSTP’s General Counsel Rachael Leonard, arguing that Holdren’s and Fried’s statements were facts, not opinions, and thus were “information” covered by the Information Quality Act. Id. 19-29. Leonard affirmed OSTP’s decision not to issue a correction. Id. at 31-33. She concurred that the video contained “an expression of [Holdren’s] expert judgment and personal opinion” and concluded that his “expression of his opinion is legally determinative here.” Id. at 33. Because “[o]pinions are expressly excluded from the legal definition of ‘information, ’ and therefore are not subject to correction under the Information Quality Guidelines, ” she wrote, OSTP was not legally required to correct the Director’s statements. Id. Leonard concluded the same with respect to Fried’s blog post statement. Id.

4. CEI’s FOIA Request

On June 13, 2014, CEI submitted a FOIA request to OSTP seeking information about (1) the production of the Polar Vortex video and (2) the OSTP Letter rejecting CEI’s Request for Correction. Specifically, CEI sought:

(a) All documents referencing or discussing whether the above-quoted claim by Holdren is, or should be regarded as, the position or view of OSTP, or whether it is, or should be regarded as, the personal opinion of Holdren.
(b) All documents related to the production of the video. That includes documents related to its cost of production, what agency resources were used in producing it, the amount of staff time that was spent ...

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