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Judicial Watch, Inc. v. U.S. Department of Commerce

United States District Court, District of Columbia

March 22, 2019

JUDICIAL WATCH, INC., Plaintiff,
v.
U.S. DEPARTMENT OF COMMERCE, Defendant.

          MEMORANDUM OPINION

          Emmet G. Sullivan United States District Judge.

         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 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 those records.

         Pending 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 DENIED.

         I. Background

         Unless 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.

         This 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.[1]

         After 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.

         Judicial 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 9.[2] 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. 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 omitted).

         B. FOIA Exemptions

         Congress 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. ยง 552(b)(1)-(9). However, because FOIA established a strong ...


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