                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

_________________________________________
                                          )
Competitive Enterprise Institute,         )
                                          )
       Plaintiff,                         )
                                          )
               v.                         )                Civil No. 14-cv-01806 (APM)
                                          )
Office of Science and Technology Policy,  )
                                          )
       Defendant.                         )
_________________________________________ )

      MEMORANDUM OPINION MODIFYING THE COURT’S MEMORANDUM
        OPINION OF FEBRUARY 10, 2016, AND ORDER ON THE COURT’S
                 MARCH 23, 2016, ORDER TO SHOW CAUSE

I.     INTRODUCTION

       A familiar refrain in Freedom of Information Act cases is that “discovery is rare.” That

maxim derives from the principle that trial courts are to accord a presumption of good faith to

agency affidavits that are relatively detailed and nonconclusory. Such affidavits cannot be rebutted

by purely speculative claims about the existence or discoverability of other records. See SafeCard

Servs., Inc. v. S.E.C., 926 F.2d 1197, 1200 (D.C. Cir. 1991). Based on those principles, this court

initially denied Plaintiff Competitive Enterprise Institute’s request for discovery. See Mem. Op.,

ECF No. 16, at 23-24.

       But, as it turns out, this is the rare case where discovery is warranted. “Discovery should

be permitted [in a FOIA case] . . . when a plaintiff raises a sufficient question as to the agency’s

good faith in processing documents in response to a FOIA request.” See Judicial Watch v. Dep’t

of State, No. 13-1363, Mem. and Order, ECF No. 73, at 9 (D.D.C. May 4, 2016); see also Judicial

Watch, Inc. v. Dep’t of State, No. 14-1242, 2016 WL 1270980, at *1 (D.D.C. March 29, 2016)
(“Where there is evidence of government wrong-doing and bad faith . . . limited discovery is

appropriate.”).   Such a sufficient question exists here.      Defendant Office of Science and

Technology Policy’s (OSTP) representations in this case about the scope and completeness of its

searches have been, to say the least, inconsistent. Those inconsistencies have created a real

question in the court’s mind—sufficient to warrant limited discovery—about Defendant’s good

faith in processing Plaintiff’s FOIA request. See Landmark Legal Found. v. EPA, 959 F. Supp. 2d

175, 182-83 (D.D.C. 2013) (finding that discovery was appropriate in light of agency’s

“inconsistent filings” regarding its searches). The court, therefore, modifies its Memorandum

Opinion of February 10, 2016, and grants Plaintiff’s motion for discovery.

II.    DISCUSSION

       The history of Defendant’s search efforts makes self-evident the need for discovery in this

case. In response to Plaintiff’s FOIA request, Defendant initially identified only 11 pages of

responsive records. None of those pages included a draft of the “OSTP Letter,” that is, Defendant’s

three-page response rejecting Plaintiff’s contention that the Information Quality Act required

Defendant to correct statements posted to the White House’s website positing a connection

between the “polar vortex” and global warming. See Mem. Op. at 3-4, 6. Only after Plaintiff

appealed the initial limited disclosure did Defendant conduct additional searches that turned up 47

draft pages of the OSTP Letter. Id. at 6-7. Defendant did not, however, turn these draft pages

over to Plaintiff; instead, it invoked FOIA Exemption 5 to justify their withholding. Id. at 6. With

its Motion for Summary Judgment, ECF No. 9, Defendant submitted an affidavit from Rachel

Leonard, its Chief FOIA Officer, which stated that “the 47 pages remained internal to the

Executive Branch,” Mem. Op. at 7 (quoting Leonard Decl., ECF 9-1, ¶ 26). As the court observed

in its Memorandum Opinion, Leonard’s declaration left “two distinct impressions: (1) that there



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were only 47 draft pages of the OSTP Letter and (2) that only Executive Branch officials had

reviewed the draft pages.” Id.

       Both of those impressions turned out to be mistaken. Defendant disclosed in its Reply

Brief that it had located an additional five pages of the draft OSTP Letter and that those pages had

been shared by Dr. John Holdren, the head of OSTP, with Dr. Jennifer Francis, a climate scientist

at Rutgers University, who in turn commented on the draft (“Francis Draft”).             Id.   In a

Supplemental Affidavit, Leonard explained that Defendant had learned about the Francis Draft

upon consulting with Dr. Holdren, after Defendant had filed its motion for summary judgment,

“to confirm that all drafts had remained within the Federal Executive Branch.” Def.’s Reply Brief,

ECF No. 12, Suppl. Leonard Decl., ECF No. 12-1, ¶ 7. Leonard then declared that the total number

of draft pages of the OSTP Letter had increased from 47 pages to 52 pages. Id. ¶ 9. Leonard’s

Supplemental Declaration left three distinct impressions: (1) that the Francis Draft was in

substance similar to the final OSTP Letter; (2) that there were no more than 52 draft pages of the

OSTP Letter; and (3) that the only person to receive a draft of the OSTP Letter outside of the

Executive Branch was Dr. Francis.

       All three of those impressions also turned out be mistaken. As it turns out, the “Francis

Draft” bears no resemblance to the final OSTP Letter. Compare Def.’s Resp. to Order to Show

Cause, ECF No. 20 [hereinafter Def.’s Resp.], Third Leonard Decl., ECF No. 20-2, Ex. B, ECF

No. 20-3 [hereinafter Francis Dr.] with id., Ex. A, ECF No. 20-3 [hereinafter Final OSTP Letter].

The three-page OSTP Letter is largely a legal explanation of why the Information Quality Act did

not require Defendant to accede to Plaintiff’s request for correction. See Final OSTP Letter. By

contrast, the five-page Francis Draft is what Defendant now calls a “scientific analysis document,”




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which focuses on the scientific literature that supports the statements that Plaintiff had challenged.

Francis Dr.1

         Defendant’s representations about the number of Francis Drafts in its possession and the

circulation of drafts outside the agency also turned out be inaccurate. In its Memorandum Opinion,

the court ordered, over Defendant’s opposition, that Defendant produce the Francis Draft. Mem.

Op. at 17-22. In the course of complying with the court’s Order, Defendant found two new drafts

substantively similar to the Francis Draft. Dr. Holdren had sent one of them outside the Executive

Branch to Dr. Rosina Bierbaum, a professor and former dean at the University of Michigan School

of Natural Resources and Environment. Def.’s Resp., Ex. A, ECF No. 20-1. He had shared

another with Dr. Peter Huybers, a Senior Science Analyst at OSTP. Id. According to Leonard,

Defendant found these additional drafts during a search of Dr. Holdren’s email, which OSTP

apparently had not previously performed. Third Leonard Decl. ¶ 17. Defendant made the above

facts known to Plaintiff in a cover letter dated March 4, 2016, which accompanied the court-

ordered disclosure of the Francis Draft, as well as the voluntary disclosure of the two newly

discovered drafts. See Def.’s Resp., Ex. A. The cover letter left the impression that Defendant

finally had identified all drafts in its possession of the OSTP Letter and the Francis Draft. See id.

(noting that Defendant had not found a response from Dr. Bierbaum “in a search of [Dr. Holdren’s]

records”).



1
  Having now actually read the Francis Draft, and seeing that it bears little similarity to the final OSTP Letter, the
court is troubled by Defendant’s representation that the Francis Draft was merely “one version of the draft” OSTP
Letter. Suppl. Leonard Decl. ¶ 7; id. ¶ 8 (stating that “Dr. Francis returned the five-page draft of the response letter”).
That representation left the court with the impression that the Francis Draft simply was an earlier iteration of the OSTP
Letter, not a scientific defense of Dr. Holdren’s statements. As a consequence, in its Memorandum Opinion, the court
observed: “Nothing apparent on the face of the final [OSTP Letter] would have demanded Dr. Francis’ ‘technical
expertise related to the polar vortex.’” Mem. Op. at 21 (citing Leonard Supp. Decl. ¶ 8). While it may be true—and
the court here is only speculating because it does not have the facts—that the scientific detail contained in the Francis
Draft was rejected in favor of a more legally-focused response, that is not at all apparent from either the initial or
supplemental Leonard declarations.

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       That impression, too, was wrong. The court learned through public sources that Defendant

had uncovered the drafts shared with Drs. Bierbaum and Huybers and had disclosed them to

Plaintiff. Surprised by this revelation, the court issued an Order to Show Cause asking why it

should not reconsider its initial decision denying Plaintiff’s request to take discovery. Order to

Show Cause, ECF No. 19. After receiving the court’s Order to Show Cause, Defendant conducted

two brand new searches. Third Leonard Decl. ¶ 22. A search of Dr. Holdren’s “Documents” file

on his computer turned up an additional four “highly similar versions of Dr. Holdren’s scientific

analysis response”—in other words, drafts similar in substance to the Francis Draft. Id. And a

search of Dr. Holdren’s email uncovered six more drafts of the scientific analysis response. Id. ¶

23. Assuming that each of the newly discovered drafts, like the Francis Draft, is five-pages long,

the total number of draft pages of both the OSTP Letter and the Francis Draft in Defendant’s

possession is now at least 112 pages. When Defendant first responded to Plaintiff’s FOIA request

the reported number of drafts was zero.

       As the foregoing recitation demonstrates, Defendant’s representations that it conducted a

reasonable search designed to locate all relevant records has proven to be inaccurate time and

again. See Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990) (reversing grant of

summary judgment where the affidavit did “not show, with reasonable detail, that the search

method . . . was reasonably calculated to uncover all relevant documents”). Although Defendant

has candidly acknowledged and apologized for the flaws in its search efforts, Def.’s Resp. at 2-3,

13, which the court appreciates, those expressions of regret come too late.

       Defendant argues that the court should deny discovery because “FOIA requires a

reasonable search, not a perfect one,” id. at 3, and “[n]o FOIA search is exhaustive, nor is it

expected to be exhaustive,” id. at 13. The court does not take issue with those statements. But at



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some point the government’s inconsistent representations about the scope and completeness of its

searches must give way to the truth-seeking function of the adversarial process, including the tools

available through discovery. This case has crossed that threshold.

III.   CONCLUSION AND ORDER

       Accordingly, the court modifies its Memorandum Opinion of February 10, 2016, and grants

Plaintiff’s motion to take limited discovery. Within fourteen days, Plaintiff shall meet and confer

with Defendant and submit a proposed discovery plan to the court. Defendant shall file any

objections to the proposed discovery plan within three days thereafter. The court then will issue

an order governing discovery as well as further proceedings in this matter. The court reserves

ruling on whether other sanctions are warranted until after the conclusion of discovery.




                                                             Amit P. Mehta
Date: May 9, 2016                                            United States District Judge




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