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Pavement Coatings Technology Council v. United States Geological Survey

United States District Court, District of Columbia

December 19, 2019


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         David A. Kanter, Swanson, Martin & Bell, LLP, Chicago, IL, for Plaintiff.

         Paul Cirino, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.


         KETANJI BROWN JACKSON, United States District Judge.

         Plaintiff Pavement Coatings Technology Council ("PCTC") is a Virginia-based trade organization whose members are involved in the production, distribution, and sale of pavement surface coatings that contain refined tar sealant. (See Compl., ECF No. 1, ¶¶ 3, 6.) On April 15, 2011, PCTC submitted a detailed document request to the United States Geological Survey ("USGS"), a federal agency within the Department of the Interior, under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. (See id. ¶¶ 4, 5.) PCTC sought various records in the possession of the agency concerning its consideration, regulation, and review of coal tar or asphalt sealants. (See id. ¶ 5.) USGS engaged in extensive review and production of responsive records, but also withheld certain information, invoking established FOIA exemptions. (See id. ¶¶ 35, 43, 53, 66.) PCTC then filed the instant FOIA lawsuit to compel "the disclosure and release of agency records improperly withheld from PCTC by USGS." (Id. ¶ 1).

         Before this Court at present are cross-motions for summary judgment that the parties have filed concerning PCTC's FOIA request and USGS's response. (See Def.'s Mot. for Summ. J. ("Def.'s Mot."), ECF No. 20; Pl.'s Joint Cross-Mot. for Summ. J. and Opp'n to Def.'s Mot. ("Pl.'s Mot."), ECF No. 22.) Notably, USGS has now produced, either in full or in redacted form, all of the records it deems responsive to PCTC's request—totaling over 52,000 pages. (See Decl. of Brian May ("May Decl."), Ex. 3 to Def.'s Mot., ECF No. 20-3 ¶¶ 22-54, 63.) The crux of the remaining dispute is whether the agency was justified in employing FOIA's Exemptions 5 and 6 to withhold or redact certain documents

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that it located in its search. (See Pl.'s Mot. at 16-17.)[1] On November 13, 2019, this Court issued an Order that GRANTED USGS's motion for summary judgment and DENIED PCTC's motion for summary judgment. (See Order, ECF No. 35.) This Memorandum Opinion explains the reasons for that Order.

         I. BACKGROUND[2]

         A. Factual Background

         In its letter to USGS dated April 15, 2011, PCTC requested twelve categories of information, including "[a]ll communications" (such as "notes, drafts, correspondence, e-mails, galley prints, edits, raw data, [and] field notes" as well as "reports and memoranda") and any other records in USGS's possession concerning research about, and review of, coal tar sealants and their environmental impact written by the agency's employees and contractors. (See FOIA Request Re Coal Tar Sealants ("FOIA Request"), Ex. A to Compl., ECF No. 1-1, at 2-3.) For approximately nine months, from August 25, 2011, until May 25, 2012, USGS scientists (including Barbara Mahler, Peter Van Metre, and others) performed searches for responsive documents. (See Def.'s Mot. at 4.) They scanned relevant e-mail files, thousands of digital files in personal and shared network directories, and hard copy material. (See id. at 4-5.) After conducting these searches, the scientists provided Judy Cearley, the USGS Regional Information Coordinator, with potentially responsive materials, accompanied by an index that included, inter alia, the reviewers' opinions regarding whether various records should be released in full and what information should be redacted. (See May Decl. ¶ 63.) Cearley reviewed the records together with the index to determine what the agency would produce to PCTC in full and, where redactions were proposed, Cearley consulted with an internal attorney to coordinate a legal review of the material. (See id.)

         The agency then began issuing interim responses releasing records to PCTC, beginning on October 11, 2011. (See Def.'s Mot. at 5.) USGS ultimately released 22 "batches" of material—in the form of CD-ROMs and DVDs with electronic files, as well as boxes of paper records. (See id. at 5-10.) Batches 1 through 16 were released in full to PCTC. (See id. at 5-7). Instead, batches 17 through 22 consisted of a mix of information released in full and information released with redactions, and also included letters explaining that other responsive information had been withheld in full pursuant to FOIA's Exemptions 5 and 6 (see id. at 7-10).

         According to USGS, the withheld or redacted responsive records consist of the following eight categories of material: (1) "Notes" from the scientists regarding their studies (May Decl. ¶ 66 (hereinafter "Category 1")); (2) "Exploratory Analysis" of data in order for scientists to assess various techniques (id. ¶ 68 ("Category 2")); (3) "Drafts[,]" including "working papers, draft manuscripts, draft journal articles, draft proposals, draft abstracts, draft presentations, draft figures, draft reports, draft letters, draft press releases, draft documents of published or final papers, and draft documents that never resulted in a final document" (id. ¶ 69 ("Category 3"));

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(4) "Colleague Review[s][,]" which are internal agency peer reviews of draft materials that contain feedback, advice, and analysis of drafts (id. ¶ 70 ("Category 4")); (5) "Peer Review[s][,]" which are "external anonymous scientific peer reviews" of agency draft documents that contain feedback from peer reviewers at "selected scientific journal[s]" (id. ¶ 71 ("Category 5")); (6) "Editorial Review[s][,]" which consist of internal agency editorial reviews by USGS Bureau Approving Officials that contain pre-publication feedback, advice, and analysis concerning agency drafts (id. ¶ 72 ("Category 6")); (7) "Sample Sheets" that redact personally identifying information concerning the volunteers who authorized samples from their residences for use in an agency study (specifically the "name and address of each volunteer" along with "the internal Sample ID which was created by using the home address of the volunteer") (id. ¶ 76 ("Category 7")); and (8) "Non-Agency Record[s][,]" which are records that USGS did not produce or rely upon in any official capacity (id. ¶ 80 ("Category 8")).

         B. Procedural History

         PCTC filed the instant civil action on July 16, 2014, seeking injunctive and other appropriate relief, including the release of documents withheld by USGS in response to PCTC's April 15, 2011, FOIA request. (See Compl. ¶¶ 1.) After PCTC filed this lawsuit, the agency revisited the records associated with Batches 17 through 22 to reassess its prior withholdings and redactions. (See May Decl. ¶ 45.) In reviewing the documents anew, the agency identified additional records and released them to PCTC. (See id.) USGS then made nine subsequent releases between January 30, 2015, and January 28, 2016. (See id. ¶¶ 46-54.)

         The parties filed cross-motions for summary judgment on February 2, 2016, and May 16, 2016, respectively. USGS's motion argues that its supplemental declarations and Vaughn index, taken together, sufficiently demonstrate the adequacy of the agency's search for responsive records and justify the agency's withholdings pursuant to FOIA's Exemptions 5 and 6. (See Def.'s Mot. at 18.) Specifically, USGS argues that it has appropriately withheld under Exemption 5's deliberative process privilege several categories of records that the agency considered in its process of determining which material to report or publish. (See Def.'s Mot. at 25-29 (referencing Categories 1 through 6).) USGS further argues that the agency appropriately withheld under Exemption 6 the names, addresses, and Sample IDs of volunteers (contained in Category 7) who provided samples used in a study the agency conducted and ultimately published. (See ...

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