                          UNITED STATES DISTRICT COURT
                          FOR THE DISTRICT OF COLUMBIA
____________________________________
                                    )
PUBLIC EMPLOYEES FOR                )
ENVIRONMENTAL RESPONSIBILITY, )
                                    )
                  Plaintiff,        )
                                    )
      v.                            )             Civil Action No. 10-1762 (ABJ)
                                    )
OFFICE OF SCIENCE AND               )
TECHNOLOGY POLICY,                  )
                                    )
                  Defendant.        )
____________________________________)


                               MEMORANDUM OPINION

       Plaintiff Public Employees for Environmental Responsibility (“PEER”) brings this

lawsuit against Office of Science and Technology Policy (“OSTP”), alleging that OSTP violated

the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (2011), by failing to respond to

PEER’s August 11, 2010 FOIA request within the statutory period. Ex. 2 to Pl.’s Opp. & Cross-

Mot. for Summ. J. (“Pl.’s Opp.”) ¶ 3; Def.’s Mot. for Summ. J. ¶ 3. OSTP has produced 150

pages of responsive material, some of which was redacted in part or in full. OSTP argued that

the 150 pages represented all of the responsive documents that PEER is entitled to under FOIA

and that any documents not produced were exempt under 5 U.S.C. § 552(b)(5) or section

552(b)(6) (“Exemption 5” and “Exemption 6”).         PEER countered, arguing that OSTP’s

withholdings and redactions under the Exemption 5 were excessive, but conceded that the

withholdings and redactions under Exemption 6 were appropriate. Both parties have filed cross-

motions for summary judgment [Dkt. #7 and #8]. For the following reasons, the Court finds

summary judgment is inappropriate at this stage for either party because OSTP’s Vaughn index
is legally insufficient for the Court to determine whether the redactions and withholdings were

proper under Exemption 5.

                                        BACKGROUND

       On March 9, 2009, President Barack Obama issued a memorandum (“the memorandum”)

assigning “to the Director of the Office of Science and Technology Policy (Director) the

responsibility for ensuring the highest level of integrity in all aspects of the executive branch’s

involvement with scientific and technological processes.” Ex. 1 to Def.’s Mot. for Summ. J.

Specifically, the President instructed that “the Director shall confer, as appropriate, with the

heads of executive departments and agencies, . . . [and, w]ithin 120 days from the date of this

memorandum, . . . develop recommendations for Presidential action designed to guarantee

scientific integrity throughout the executive branch.” Id.

       Pursuant to the memorandum, Director of OSTP, John P. Holdren (“the Director”),

“asked federal agencies to identify employees to serve on a working group, whose purpose ‘was

to gather input and draft guidance and develop draft recommendations on scientific integrity for

[the Director’s] consideration.” Def.’s Mot. for Summ. J. at 2, quoting Leonard Decl. ¶ 5. He

also “solicited input from the public through a notice in the Federal Register,” and “conferred

with [the Office of Management and Budget] and other federal offices and agencies.” Id. at 3,

citing Leonard Decl. ¶¶ 6–7.

       The entire process took much longer than expected and lasted approximately two years.

Def.’s Mot. for Summ. J. at 3. In June 2010, the Director explained the delay to Congress:

       [T]here were many, many drafts of those guidelines. And what took so long was
       the complexity of the task of developing guidelines that were both specific
       enough to add significant value . . . [and,] at the same time, would be general
       enough to be applicable across all the departments and agencies . . . that deal with
       science and technology matters. That proved to be a much more demanding task


                                                 2
       than any of us though at the outset and involved a great deal of debate with
       virtually every department, agency, and office with a stake in this matter.

Id., quoting Leonard Decl. ¶ 8.       Then, on December 17, 2010, the Director issued “a

Memorandum for the Heads of Executive Departments and Agencies on Scientific Integrity,”

which constituted the Director’s “final determination of how to comply with the President’s

directive to ‘develop recommendations for Presidential action designed to guarantee scientific

integrity throughout the executive branch.’” Id. at 3–4, quoting Leonard Decl. ¶¶ 9–10. The

Director’s memorandum reflected the input he received from “the working groups, agency

comments, public comments, OSTP staff expertise, comments from other federal executive

branch offices and personnel, as well as his own judgment and experience.” Leonard Decl. ¶ 10.

It did not, however, officially adopt any of the draft recommendations or comments by any of the

groups. Id. ¶¶ 9–11.

       On August 11, 2010 – prior to the release of the Director’s memorandum – PEER

requested several documents from OSTP, pursuant to FOIA. Specifically, PEER requested:

       (1) [A]ll communications received by OSTP from executive departments and
       agencies, including the Office of Management and Budget and offices and
       agencies within the Executive Office of the President concerning the content of
       these proposed policies, (2) all draft recommendations developed by the
       interagency panel created by OSTP with representatives from all of the major
       science offices and agencies, and (3) all decision memoranda, e-mails or other
       communications discussing the reasons for delay in publication of policies for
       presidential action as laid out in the March 9, 2009 Executive Memorandum.

Pl.’s Opp. at 1–2.

       Though OSTP “immediately commenced a search” for the requested documents, it did

not respond to PEER until September 20, 2010, when OSTP’s general counsel sent a letter to

PEER explaining that, “due to the extensive nature of the request, OSTP was unable to complete

its review within the [statutory] response period,” Leonard Decl. ¶¶ 13, 15; accord Pl.’s Opp. at

                                               3
2, and “offered Plaintiff the option of narrowing its request to expedite a response,” Def. Mot. for

Summ. J. at 4–5. On October 13, 2010, during a telephone conference, OSTP’s general counsel

informed PEER that the agency was unable to provide “an expected delivery date for any of the

requested documents.” Pl.’s Opp. at 2.

       PEER filed this lawsuit on October 19, 2010. Id.; Def.’s Mot. for Summ. J. at 5. On

December 9, 2010, the parties agreed to a production schedule in which OSTP would produce all

non-exempt responsive documents to PEER by February 2, 2011. Pl.’s Opp. at 2–3; Def.’s Mot.

for Summ. J. at 5. Approximately 150 pages of documents were produced according to the

production schedule. Pl.’s Opp. at 3.

       OSTP states that its production complied with FOIA and that any withholdings are

justified under Exemption 5 and Exemption 6. Def.’s Mot. for Summ. J. at 5. PEER, however,

argues that the OSTP did not comply with FOIA because the produced documents contained

“excessive redactions.” Pl.’s Opp. at 3 (“Of the approximately 150 pages of records OSTP

produced, 114 pages were either redacted in full or were so heavily redacted that only a few

words or phrases were visible.”).

       Subsequently, OSTP moved for summary judgment [Dkt. #7] and PEER filed a cross-

motion for summary judgment [Dkt. #8]. Both parties agree to the facts as stated above, and

only disagree as to the legal conclusions about whether the redactions and withholdings under

Exemption 5 were lawful. See Ex. 3 to Pl.’s Opp. (“Pl.’s Statement of Facts in Dispute”); Def.’s

Mot. for Summ. J. at 1–5.


                                    STANDARD OF REVIEW


       “FOIA cases are typically and appropriately decided on motions for summary judgment.”

Moore v. Bush, 601 F. Supp. 2d 6, 12 (D.D.C. 2009) (citations omitted). To prevail in a FOIA

                                                 4
action where the plaintiff challenges the redactions and withholdings pursuant to one of the

exemptions, the agency bears the burden of proving that the asserted exemption justifies the

redactions and withholdings. 5 U.S.C. § 552(a)(4)(B); Dickstein Shapiro LLP v. U.S. Dep’t of

Def., 730 F. Supp. 2d 6, 8–9 (D.D.C. 2010). To satisfy that burden, the agency “must provide a

relatively detailed justification, specifically identifying the reasons why a particular exemption is

relevant and correlating those claims with the particular part of a withheld document to which

they apply.” Mead Data Cent., Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 251 (D.C. Cir.

1977). The burden “cannot be satisfied by the sweeping and conclusory citation of an exemption

plus submission of disputed material for in camera inspection.” Id. Instead, to satisfy this

burden and “enable the Court to determine whether documents were properly withheld,” the

agency must submit a “Vaughn index and/or accompanying affidavits or declarations” that

specifically explains why certain documents were redacted or withheld. Defenders of Wildlife v.

U.S. Border Patrol, 623 F. Supp. 2d 83, 88 (D.D.C. 2009); see also Vaughn v. Rosen, 484 F.2d

820, 826–28 (D.C. Cir. 1973); John Doe Agency v. John Doe Corp., 493 U.S. 146 (1989);

Judicial Watch, Inc. v. FDA, 449 F.3d 141, 1445–46 (D.C. Cir. 2006); Schoenman v. Fed.

Bureau of Investigation, 604 F. Supp. 2d 174, 196 (D.D.C. 2011).

       To survive a motion for summary judgment, a plaintiff must set forth specific facts

showing a genuine issue for trial. Fed. R. Civ. P. 56(e). In the FOIA context, “the sufficiency of

the agency’s identification or retrieval procedure” must be “genuinely in issue.” Weisberg v.

U.S. Dep’t of Justice, 627 F.2d 365, 370 (D.C. Cir. 1980). Plaintiff “cannot rebut the good faith

presumption” afforded to an agency’s supporting affidavits “through purely speculative claims

about the existence and discoverability of other documents.” Brown v. U.S. Dep’t of Justice, 742

F. Supp. 2d 126, 130 (D.D.C. 2010) (citation and internal quotation marks omitted).



                                                 5
       In any motion for summary judgment, the Court “must view the evidence in the light

most favorable to the nonmoving party, draw all reasonable inferences in his favor, and eschew

making credibility determinations or weighing the evidence.” Montgomery v. Chao, 546 F.3d

703, 706 (D.C. Cir. 2008); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 48

(1986). However, where a plaintiff has not provided evidence that an agency has acted in bad

faith, “a court may award summary judgment solely on the basis of information provided by the

agency in declarations.” Moore, 601 F. Supp. 2d at 12.

       The district court must “determine the matter de novo, and . . . the burden is on the

agency to sustain its action.” 5 U.S.C. § 552(a)(4)(B); Military Audit Project v. Casey, 656 F.2d

724, 738 (D.C. Cir. 1981).

                                          ANALYSIS

       OSTP concedes that it redacted or withheld documents that were otherwise responsive to

PEER’s FOIA request. See Def.’s Mot. for Summ. J. at 5. However, OSTP maintains that the

redactions and withholdings were justified under FOIA Exemption 5 and Exemption 6 because

the records either were part of the deliberative process or contained personal information about

the documents’ authors. Id. at 5, 13–18, 19–21. OSTP also argued that its redactions and

withholdings complied with FOIA’s segregability requirements. Id. at 19; see also 5 U.S.C. §

552(b) (“[A]ny reasonably segregable portion of a record shall be provided to any person

requesting such a record after deletion of the portions which are exempt . . . .”); Mead Data

Cent., Inc., 566 F.2d at 260 (“[N]on-exempt portions of a document must be disclosed unless

they are inextricably intertwined with exempt portions.”).




                                                6
       PEER concedes that OSTP’s redactions and withholdings pursuant to Exemption 6 are

lawful. 1 Pl.’s Opp. at 6. However, it argues that OSTP failed to meet its burden to establish that

the redactions and withholdings pursuant to Exemption 5 were lawful, and that OSTP

“improperly withheld materials that are purely investigative and factual in nature as

deliberative.” Id. at 4. PEER also contends that OSTP’s redactions and withholdings were

excessive because OSTP “failed to adequately disclose segregable material in the vast majority

of documents that it turned over.” Id. at 6. The Court finds, at this time, that it does not have

enough information to grant summary judgment in favor of either party.

       Exemption 5 provides agencies with the authority to deny FOIA requests where the

requested documents include “inter-agency or intra-agency memorandums or letters which

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). In determining whether a document was properly withheld under subsection

(b)(5), a court must determine that the document satisfies “two conditions: its source must be a

Government agency, and it must fall within the ambit of a privilege against discovery under

judicial standards that would govern litigation against the agency that holds it.” U.S. Dep’t of the

Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001).

       With regard to the second condition, the Supreme Court has determined that:

       [T]hose privileges include the privilege for attorney work-product and what is
       sometimes called the “deliberative process” privilege. Work product protects
       “mental processes of the attorney,” while deliberative process covers “documents
       reflecting advisory opinions, recommendations and deliberations comprising part
       of a process by which governmental decisions and policies are formulated.




1      Because plaintiff is not challenging OSTP’s redactions and withholdings made pursuant
to Exemption 6, the Court will not address that issue.


                                                 7
Id. (internal citations omitted); accord Schlefer v. United States, 702 F.2d 233, 237 (D.C. Cir.

1983); Gold Anti-Trust Action Comm., Inc. v. Bd. of Governors of the Fed. Reserve Sys., 762 F.

Supp. 2d 123, 134 (D.D.C. 2011). “The deliberative process privilege rests on the obvious

realization that officials will not communicate candidly among themselves if each remark is a

potential item of discovery,” and the goal behind its exemption “is to enhance ‘the quality of

agency decisions’ by protecting open and frank discussion among those who make them within

the Government.” Klamath Water, 532 U.S. at 8–9 (internal citations omitted). The deliberative

process privilege, however, only “protects agency documents that are both predecisional and

deliberative.” Judicial Watch, Inc., 449 F.3d at 151 (emphasis added).

       The agency bears the burden of proving that the redactions and withholdings were proper

under the claimed exemption. In Exemption 5 cases, this typically requires the agency to prove

that the withheld information is both predecisional and deliberative. Here, however, PEER does

not challenge that the redacted and withheld documents are predecisional, and the Court finds

nothing in the record that suggests otherwise. 2 Instead, PEER argues that OSTP failed to meet



2       Though the law is clear that Exemption 5 requires a showing that withheld information is
both predecisional and deliberative, courts often combine the two requirements. See Access
Reports v. U.S. Dep’t of Justice, 926 F.2d 1192, 1194–95 (D.C. Cir. 1991) (discussing courts’
confusion in assessing whether withheld information satisfies the requirements of Exemption 5).
This Circuit, however, has made clear that the two requirements are separate. Id. at 1195. The
common test for determining whether a document is predecisional is “whether [the document]
was generated before the adoption of an agency policy . . . [and] would inaccurately reflect or
prematurely disclose the views of the agency, suggesting as agency position that which is as yet
only a personal position.” Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C.
Cir. 1980). A court also should ask “whether the document is recommendatory in nature or is a
draft of what will become a final document.” Id. However, “even if the document is
predecisional at the time it is prepared, it can lose that status if it is adopted, formally or
informally, as the agency position on an issue or is used by the agency in its dealings with the
public.” Id. Here, OSTP states that all the redacted and withheld documents were predecisional
because they are all advisory or recommendatory statements made to the Director, who retained
sole authority to make the final decision regarding OSTP’s policy, and the Director did not
officially adopt any of the recommendations. Leonard Decl. ¶¶ 9–11. PEER does not challenge
                                               8
its burden to establish that the redacted statements and withheld documents were deliberative in

nature. Consequently, the Court will only address the latter portion of the test.

       This Circuit considers a document deliberative if “it reflects the give-and-take of the

consultative process.” Judicial Watch, 449 F.3d at 151, quoting Coastal States Gas Corp. v.

Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). Whether a document is deliberative and

part of the consultative process “can often be resolved by the simple test that factual material

must be disclosed but advice and recommendations may be withheld.” Wolfe v. U.S. Dep’t of

Health and Human Servs., 839 F.2d 768, 774 (D.C. Cir. 1988). A court, however, must still

consider whether factual material should be disclosed because, “[i]n some circumstances, even

material that could be characterized as ‘factual’ would so expose the deliberative process that it

must be covered by the [deliberative process] privilege.” Id. A court, in determining whether

withheld information was deliberative, relies on the agency’s Vaughn index and/or its

declarations. It is under this framework that the Court now addresses whether OSTP met its

burden of establishing that the redacted information and withheld documents are deliberative. 3

       Before reaching the merits of this case, however, the Court finds it helpful to review two

previous cases decided by two other courts in this district: in the first case, the Court found the

Vaughn index descriptions insufficient to warrant summary judgment, and, in the second case,

the Court found the Vaughn index descriptions sufficient to warrant summary judgment. These

cases are particularly helpful in explaining what information the agency must provide to the

Court in order for the case to be ripe for summary judgment.



the predecisional nature of the withheld information and, as mentioned above, the Court finds
that OSTP has met its burden of proving that the documents were predecisional.

3      OSTP argues that PEER’s challenges to the redactions and withholdings must fail
because they are speculative and do not prove that OSTP acted in bad faith. Def.’s Opp. at 3–4.
                                                 9
       In the first case, Defenders of Wildlife v. U.S. Border Patrol, both parties moved for

summary judgment in an action challenging the U.S. Border Patrol’s response to the plaintiff’s

FOIA request. 623 F. Supp. 2d at 85–86. In addition to its motion for summary judgment, the

defendant provided the plaintiff and the Court with a Vaughn index. Id. at 86. In reviewing the

Vaughn index, the Court noted that it “systematically fail[ed] to identify relevant information

such as the originating component agency, the author, and frequently the recipient(s) of the

document.” Id. at 88. The Court also noted that the index descriptions were “unduly vague and

general,” with the typical entry stating: “Three pages Withheld in Full. Exemption (b)(5) was

cited to protect the deliberative process privilege as it is applied to pre-decisional material or

discussions, the general purposes of which [are] to encourage open frank discussions among

personnel.” Id. at 89. The Court then concluded that the Vaughn index was legally insufficient

to warrant summary judgment because there was “no explanation of how any of the documents

[were] pre-decisional or deliberative or what deliberative process [was] involved. It [was] not

sufficient to state that all withholdings relate to ‘a decision . . . on how to best implement the

Arizona Border Control Initiative.’” Id. at 89, 91. Consequently, the Court determined that it

could not grant summary judgment in favor of either party until the defendant amended or

supplemented the Vaughn index. Id. at 93.

       Conversely, in People for the Am. Way Found. v. Nat’l Park Servs., another court in this

district found the defendant’s Vaughn index sufficient to grant summary judgment where the

descriptions showed that the excluded documents were part of the deliberative process. 503 F.

Supp. 2d 284, 301 (D.D.C. 2007). Explaining its decision, the Court offered an example of one

of the descriptions that provided enough detail to allow the Court to determine whether a FOIA

exemption applied: “[Document 12 Description:] This email was redacted in part and describes



                                               10
initial thoughts and reaction to the Lincoln Memorial videotape description from the CNS story

in this same email. The redacted portions speculate and describe perceived reactions to the

story.” Id. at 295. The specific detail about why the redacted email was deliberative provided

the Court with enough information to find that summary judgment in favor of the defendant was

appropriate.

       Here, OSTP’s Vaughn index is more similar to the legally insufficient index in Defenders

of Wildlife than to the legally sufficient index in National Park Services.        Though OSTP

provided information that was otherwise missing in Defenders of Wildlife – the originating

component agency, the author, and the recipient(s) of the documents – every declaration for why

the document was redacted or withheld contains the same boilerplate language: “This is a

preliminary, non-final draft of the memorandum that reflects recommendations from

governmental employees,” or “[t]he redacted portions of this e-mail are deliberative because they

reflect deliberations among government employees regarding the content of a preliminary, non-

final draft of the memorandum.” Ex. 2C to Def. Mot. for Summ. J. In other words, it appears

that OSTP did nothing more than copy and paste circular justifications throughout its seventy-

nine page Vaughn index instead of providing the Court with the necessary level of information to

determine whether the documents were properly withheld under Exemption 5. Likewise, the

Leonard declaration – the only declaration provided by OSTP – contains the same conclusory

statements justifying the redactions and withholdings. Leonard Decl. ¶¶ 19–23. Though an

agency is not required to disclose so much information that it would thwart the purpose of the

exemption invoked, Hall v. U.S. Dep’t of Justice, 552 F. Supp. 2d 23, 27 (D.D.C. 2008),

summary judgment is inappropriate where the agency provides only conclusory statements and

has not satisfied its burden of justifying its withholdings, Defenders of Wildlife, 623 F. Supp. 2d



                                                11
at 88.    Without additional information regarding OSTP’s decision to redact and withhold

information, the Court does not have sufficient information to grant summary judgment in favor

of either party at this time. 4

                                        CONCLUSION

         For the reasons stated above, the Court denies both OSTP’s motion for summary

judgment, and PEER’s cross-motion for summary judgment because OSTP’s Vaughn index does

not provide the necessary information the Court needs to determine whether the documents were

lawfully redacted or withheld pursuant to Exemption 5. OSTP should amend or supplement its

Vaughn index and/or declarations to provide more detail as to why each redacted or withheld

document falls within the deliberative process privilege. A separate order will issue.




                                             AMY BERMAN JACKSON
                                             United States District Judge

DATE: November 8, 2011




4      Because the Court has found OSTP’s Vaughn index legally insufficient, the Court cannot
determine, at this time, whether OSTP also failed to segregate non-exempt material from exempt
material in its withholdings. Therefore, the Court reserves judgment on the issue of segregability
until OSTP provides the Court with the needed information.
                                                12
