United States District Court, E.D. Virginia, Alexandria Division
Anthony J. Trenga, United State District Judge
matter is before the Court on Defendant's Motion for
Summary Judgment [Doc. No. 15] (the “Motion”).
Plaintiffs brought this action against the United States
Department of State (“State”) under the Freedom
of Information Act, 5 U.S.C. § 552 (“FOIA”)
to compel production under a FOIA request for certain agency
records compiled, edited, and accessed by agency employees
and controlled by or otherwise accessible to the agency,
which State partially denied. Only four documents are now in
dispute, and Plaintiffs only contest certain redactions that
State made pursuant to the deliberative process privilege.
Friday, September 30, 2016, the Court held a hearing on
Defendant's Motion. On that date, the Court ordered that
Defendant submit unredacted copies of Documents C05975033,
C0597043, C05975101, and C05975102 in camera and
under seal for ex parte review by the Court. [Doc.
No. 21.] Upon review of the documents and consideration of
the Motion, the memoranda of law in support thereof and in
opposition thereto, and the arguments of counsel, the Court
concludes for the reasons stated herein that some of the
redactions were appropriate while others were not. Therefore,
Defendant's motion will be granted in part and denied in
part and Defendant will be ordered to produce these documents
for Plaintiffs without certain redactions specified below.
otherwise stated herein, the following facts are undisputed:
November 27, 2015, Plaintiffs submitted a FOIA request that
State produce various communications between State employees
and others, especially a group called Climate Interactive.
Compl. ¶ 2; see also FOIA Request [Doc. No.
16-1]. This request was made approximately three weeks before
the upcoming U.N. Climate Conference in Paris, France, which
ultimately resulted in the widely publicized Paris Climate
Agreement. Defendant's Memorandum in Reply in Support of
its Motion for Summary Judgment [Doc. No. 13]
(“Def.'s Mem. Reply”) 1. On December 24,
2015, State acknowledged Plaintiffs' request, granted
their fee waiver, and assigned the request tracking number
F-2015-16735. Compl. ¶ 3. Having not received an initial
determination within twenty business days,  as statutorily
required, Plaintiffs filed this lawsuit on January 22, 2016.
Plaintiffs' filing, State released to Plaintiffs on May
4, 2016 and June 7, 2016 what it deemed to be all of the
non-exempt records. In total, State produced approximately
twenty-three responsive documents. State declined to produce
certain documents pursuant to FOIA exemptions based on (1)
the deliberative process privilege (“Exemption
Five”) and (2) the unwarranted privacy intrusion
exemption (“Exemption Six”). However, Plaintiffs
now only seek the production of the redacted portions of four
documents numbered C05975101, C05975102, C05975033, and
C0597043, which State has already produced in redacted form.
See Def.'s Mem. Reply, Ex. B (containing the
redacted versions of the four documents already produced by
four documents in question were sent by (1) Trigg Talley,
Deputy Special Envoy for Climate Change at the State
Department; (2) Paul Bodnar, a White House staffer; and (3)
Donald Wuebbles, an Assistant Director in the White House
Office of Science and Technology Policy. Def.'s Mem.
Reply 4. They were sent to “a group of other
senior-level White House and State Department officials
responsible for setting the government's position on
climate policy and for negotiating at the Paris
conference.” Id. Documents C05975033 and
C0597043 are “three-page inter-agency email exchanges
between White House and State staff dated October 4, 2015,
with the Subject line: “NYT (Editorial): A Big Boost
for the Climate Summit.” Stein Decl. ¶ 31;
see Def.'s Mem. Reply, Ex. B (including copies
of both documents). Documents C05975101 (two pages long) and
C05975102 (six pages long) are “inter-agency email
exchanges dated November 10-12, 2015, with the Subject line:
‘response to Lomborg on Paris'” relating to
“an article by Bjorn Lomborg on the INDCs impact on
future global warming.” Id. ¶ 34;
see Def.'s Mem. Reply, Ex. C (including copies
of both documents). Portions of the documents were withheld
pursuant to Exemptions Five and other portions pursuant to
Exemption Six, id. ¶ 31, 34; though Plaintiffs
only dispute the redactions pursuant to Exemption
Five. State claims that, in these redactions,
“several officials offered subjective assessments and
opinions relating to key climate policy issues raised in the
articles, including evaluating analyses of how any potential
climate agreement would affect global temperatures.”
Def.'s Mem. Reply 1-2.
disputes should generally be resolved on summary judgment.
Hanson v. USAID, F.3d 286, 290 (4th Cir. 2004)
(“As a general rule, . . . FOIA determinations should
be resolved on summary judgment.”). The party seeking
summary judgment has the initial burden to show the absence
of a material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 325 (1986). A genuine issue of material fact exists
“if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, 477 U.S. 242, 248 (1984). Once a
motion for summary judgment is properly made and supported,
the opposing party has the burden of showing that a genuine
dispute exists. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586-87 (1986). To defeat a
properly supported motion for summary judgment, the
non-moving party “must set forth specific facts showing
that there is a genuine issue for trial.”
Anderson, 477 U.S. at 247-48 (“[T]he mere
existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be
no genuine issue of material fact.”).
Whether a fact is considered “material” is
determined by the substantive law, and “[o]nly disputes
over facts that might affect the outcome of the suit under
the governing law will properly preclude the entry of summary
judgment.” Id. at 248. The facts shall be
viewed, and all reasonable inferences drawn, in the light
most favorable to the non-moving party. Id. at 255;
see also Lettieri v. Equant Inc., 478 F.3d 640, 642
(4th Cir. 2007).
requires a federal executive branch agency must “upon
any request for records which (i) reasonably describes such
records and (ii) is made in accordance with published rules .
. . make the records promptly available to any person.”
5 U.S.C. § 552(a)(3)(A). There are exemptions, but
“[g]iven the statute's presumption for disclosure,
its enumerated exemptions are to be construed
narrowly.” City of Virginia Beach, Va. v. U.S.
Dep't. of Commerce, 995 F.2d 1247, 1252 (4th Cir.
1993); see also Hanson v. U.S. Agency for Intern.
Dev., 372 F.3d 286, 290 (4th Cir. 2004) (citations
omitted) (“In general, FOIA exemptions should be
narrowly construed to favor disclosure.”). Therefore,
“the burden of justifying nondisclosure rests squarely
upon the government.” Id.; see also
Hanson, 372 F.3d at 290 (citations omitted) (“The
burden of demonstrating that a requested document falls under
an exemption rests on the government.”). “The
government can meet this burden by describing the withheld
material with reasonable specificity and explaining how it
falls under one of the enumerated exemptions.”
Hanson, 372 F.3d at 290. If the government meets the
burden, “[a]ny reasonably segregable portion of a
record shall be provided . . . after deletion of the portions
which are exempt . . . .” U.S.C. § 552(b).
Exemption Five, an agency is not required to disclose
“inter-agency or intra-agency memorandums or letters
that would not be available by law to a party other than an
agency in litigation with the agency.” 5 U.S.C. §
552(b)(5). “To invoke the privilege successfully, the
government must show that, in ‘the context in which the
materials are used, ' the documents are both
predecisional and deliberative.” City of Virginia
Beach, 995 F.2d at 1253 (emphasis added) (citation
district court reviews the government's classifications
of documents de ...