United States District Court, District of Columbia
G. Sullivan United States District Judge.
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 sought
records of communications between Thomas Karl, NOAA
scientist, and John Holdren, Director of the Office of
Science and Technology Policy at NOAA, from January 20, 2009,
through January 20, 2017. Judicial Watch's challenges are
now limited to Commerce's redactions to specific pages in
before the Court are the parties' 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, Judicial
Watch's motion for summary judgment is GRANTED in
PART, DENIED in
PART, and HELD IN ABEYANCE in PART
and Commerce's motion for summary judgment is
otherwise noted, the following facts are taken from the
Complaint, ECF No. 1, and from Commerce's Statement of
Material Facts, Def.'s Mot., Statement of Material Facts
(“SMF”), ECF No. 14-1.
case involves a FOIA request by Judicial Watch directed to
NOAA, in which Judicial Watch sought “[a]ny and all
records of communications between NOAA scientist Thomas Karl
and Director of the Office of Science and Technology Policy
John Holdren” from “January 20, 2009, through
January 20, 2017.” Compl., ECF No. 1 ¶ 5. Commerce
produced over 900 pages of records consisting of email
communications between Thomas Karl and John Holdren, a large
portion of which were partially redacted. Pl.'s
Cross-Mot., ECF No. 15 at 9.
production, Commerce moved for summary judgment. See
Def.'s Mot., ECF No. 14. Commerce's motion was
supported by the declaration of Mark H. Graff, NOAA'S
FOIA Officer, see Def.'s Mot., Decl. of Mark
Graff, ECF No. 14-2 at 1-6, as well as a Vaughn index,
id. at 12-15. Mr. Graff's declaration explained
the scope of NOAA's use of a FOIA exemption to disclosure
based on the deliberative process privilege, Exemption 5, and
why the redacted material met that exemption. Id. at
1-6. In further support of its motion for summary judgment,
Commerce later submitted another declaration of Mr. Graff.
See Second Decl. of Mark Graff, ECF No. 17-2, and a
Revised Vaughn Index, ECF No. 17-3, both of which elaborated
on Commerce's redactions pursuant to Exemption 5.
Watch opposed Commerce's motion and filed a cross-motion
for summary judgment challenging the redactions made by
Commerce to certain pages of produced documents on the basis
of Exemption 5. Pl.'s Cross-Mot., ECF No. 15 at
The parties' motions are now ripe for disposition.
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. Zenith Radio Corp.,
475 U.S. 574, 587 (1986)(internal quotation marks omitted).
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
enacted FOIA to “open up the workings of government to
public scrutiny through the disclosure of government
records.” Stern v. FBI, 737 F.2d 84, 88 (D.C.
Cir. 1984)(alterations and internal quotation marks omitted).
Although the legislation is aimed toward “open[ness] .
. . of government, ” 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)(citations and quotations 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