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Competitive Enterprise Institute v. United States Department of State

United States District Court, E.D. Virginia, Alexandria Division

December 1, 2016



          Anthony J. Trenga, United State District Judge

         This 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.

         On 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.

         I. BACKGROUND

         Unless otherwise stated herein, the following facts are undisputed:

         On 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, [1] as statutorily required, Plaintiffs filed this lawsuit on January 22, 2016.

         After 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.[2] 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 State).

         The 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.[3] 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.


         FOIA 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).

         III. ANALYSIS

         FOIA 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).

         Under 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 omitted).

         The district court reviews the government's classifications of documents de ...

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