Amiri v. Nat'l Science Found., No. 20-02006, 2021 WL 4438910 (D.D.C. Sept. 28, 2021) (McFadden, J.)

Amiri v. Nat'l Science Found., No. 20-02006, 2021 WL 4438910 (D.D.C. Sept. 28, 2021) (McFadden, J.)

Re:  Request for records concerning plaintiff, as well as National Science Foundation's ("NSF") grant awards

Disposition:  Granting defendant's motion for summary judgment; denying plaintiff's cross-motion for summary judgment; denying plaintiff's motion to seal

• Litigation Considerations, Adequacy of Search:  "The Court . . . finds that NSF conducted a reasonable search under the circumstances."  "NSF's declarations detail the scope of its searches."  "NSF's main declaration identifies the record systems and locations searched, the personnel consulted during the search, why the relevant information would be in those locations and systems, and the search terms used."  "The declaration also thoroughly explains the methodology of each search."  "And the declarant . . . oversaw the searches and therefore has actual personal knowledge."  Responding to plaintiff's arguments alleging that there were missing documents and "agency fraud," the court finds that "[t]his is speculation."  "Such bare allegations cannot overcome the presumption of good faith given to agency declarations."
   
• Litigation Considerations, Vaughn Index/Declaration:  The court holds that "[g]iven the level of detail and organization, the Vaughn Index and its supporting documents 'permit adequate adversary testing of the agency's claimed right to' exemptions."  "The Index includes for each withheld record (1) a description of the record, (2) the corresponding Bates number, (3) a description and reasons for the redaction, and (4) the FOIA Exemption applied."
   
• Exemption 5, Deliberative Process Privilege & Other Considerations:  "The Court . . . upholds NSF's withholdings under Exemption 5."  The court relates that "[u]nder Exemption 5, NSF withheld material on ten pages of documents."  "That information reflected written summaries of a scientific review panel's ('Review Panel') analysis and funding recommendations about a group of proposals . . . ."  "This withheld document also includes the panel's rankings and funding recommendations for each proposal."  "NSF's declarations explain why it withheld this information."  "NSF considers each panel's rankings, analysis, and recommendations, but those submissions do not determine the agency's ultimate funding decision."  "As a result, the content of these review panel 'discussions and deliberations are predecisional in nature.'"  "And these discussions constitute the kind of 'opinions, conclusions, and recommendations' protected by the privilege."  The court finds that "[f]unding recommendations 'reflect the personal opinions of the writer rather than the policy of the agency.'"  "The panels write those recommendations before NSF makes a final funding decision."  "Thus, the recommendations are 'pred[e]cisional.'"  "They also contain internal agency discussions reflecting a 'give-and-take of the consultative process' as to the viability of grant submissions."
  
  Regarding foreseeable harm, the court finds that "[t]he agency broadly says that release of this information 'would discourage the expression of candid opinions and inhibit the full and frank exchange of information' inside NSF."  "But NSF also more precisely explains how disclosure would cause harm."  "The withheld analyses and recommendations on grant proposals represent 'just two sets of information considered' when NSF makes grant decisions."  "And those recommendations often differ from NSF's ultimate decision on various grants."  "So disclosure of just the recommendations would confuse the public and cast doubt on the public basis for NSF's grant decisions."  "More, NSF disclosure 'would interfere' with the agency's 'longstanding use' of these Review Panels, which rely on full candor to continue NSF'’s 'gold standard' for vetting grant proposals."  "This explanation not only places the withheld material in a 'specific context of agency action,' but also describes how disclosure would 'impair' NSF's deliberations going forward."  "NSF has therefore demonstrated a risk of foreseeable harm from disclosure."
   
• Exemption 6 & Waiver and Discretionary Disclosure, Waiver:  The court relates that "[a]s an initial matter, [plaintiff] argues that NSF has waived any privacy interest – and cannot invoke Exemption 6 – based on 'inadvertent disclosures' made in the November mailing."  "Because NSF FOIA staff worked remotely at the time, they outsourced the printing and mailing to FedEx."  "As a result, [plaintiff] received ten pages of documents that mistakenly contained unredacted privileged information."  "NSF contends that the unredacted information comprises PII of individuals associated with [a] Grant Award . . . , including salary and student identifications."  "NSF had redacted or withheld this information in the original October release, but mistakenly sent an unredacted PDF to FedEx in November."  "Because of remote work, nobody uploaded that November mailing to NSF's electronic FOIA system, nor was another copy otherwise available."  "NSF says that it therefore first learned of the mistake in May 2021 when [plaintiff] filed his reply brief."  "Within a day, NSF notified [plaintiff] that it had mistakenly provided him with privileged information."  "NSF requested that [plaintiff] return, destroy, or sequester those records."  The court finds that "[a]lthough an agency cannot assert a FOIA exemption for information that the agency has officially disclosed to the public, . . . the Court may examine the nature and circumstances of disclosure to determine whether an agency has waived an exemption."  "Courts generally find that, when an unintended error leads to disclosure, the agency has not waived a FOIA exemption."  "More, an agency's inadvertent disclosure of individual names and other PII rarely waives privacy interests under Exemption 6 because those interests belong to the individuals, not to the agency."  "Ultimately, NSF's statements speak for themselves."  "The agency consistently labels this disclosure as inadvertent."  "NSF also released redacted versions of the same pages in both October and December."  "That further supports the agency's statements that it made a mistake in November."  "And once alerted, NSF took prompt steps to protect the unredacted documents from public view, both with the Court . . . and with [plaintiff] . . . ."  "The Court finds that, under the totality of the circumstances, NSF did not waive its right to invoke Exemption 6."
   
• Exemption 6 & Litigation Considerations, Foreseeable Harm Requirement:  "The Court . . . agrees with NSF that Exemption 6 protects the PII at issue."  The court relates that defendant withheld "the 'history files' of senior personnel listed on the grant award" which "'consist of tables showing all of the proposals submitted to NSF, both awarded and declined, along with tables showing information about each time the individual served as an NSF reviewer.'"  Defendant also withheld "PII of individuals involved in [a particular] Grant Award . . . , including:  'student names, personal email addresses, salary information, person-hours allocated to various grants and other employment activities, current financial support to senior personnel and students from entities other than NSF, and NSF review panel member identities.'"  First, the court finds that "[t]he individuals implicated in NSF's withholdings have a substantial privacy interest in their PII."  "Disclosure of the history tables would put the names of review panel members and employees into the public domain."  "A scientist who received no NSF funding would then know how each panel assessed his submission."  "As NSF points out, that would lead to professional harm for the reviewers, many of whom share a profession with applicants."  "The same concerns animate withholding PII in the other documents."  "Disclosure would allow someone to piece together the identity of the grant submitters, the Review Panel members, Program Managers, and other senior personnel."  "That disclosure would put those people 'at risk of being harassed for details.'"  "And Exemption 6 has long protected the identities of low-level government employees and private individuals, including applicants for federal grants."  Second, regarding the public interest, the court finds that "[plaintiff] makes no legal argument for how disclosure of PII would 'shed light on [NSF's] performance of its statutory duties,' which is the only relevant public interest under Exemption 6."  "And his fraud allegations are beside the point."  "He cannot surmount the privacy interest of the mentioned individuals based only on a 'bare suspicion' that NSF engaged in misconduct."  The court finds that "[plaintiff] has not identified a public interest in disclosure that would outweigh the interest of various individuals in their PII."
  
  Regarding foreseeable harm, the court finds that "NSF does not expressly address this requirement for its Exemption 6 withholdings."  "But a court may find the foreseeable-harm requirement satisfied if 'the very context and purpose of' the withheld material 'make[s] the foreseeability of harm manifest.'"  "NSF's declarations and the context of the withheld material make out a foreseeable harm."  "As NSF explained, disclosure of the history tables would 'cause professional harm' to the individuals listed in those documents."  Similarly, the court finds that disclosure of the PII "would identify the person and, depending on their involvement, might subject them to ridicule."  "Thus, the 'context' of the information in those 62 pages makes 'manifest' the harm from disclosure."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "[T]he Court holds that NSF has satisfied its segregability obligations under FOIA."  The court finds that "NSF says that it reviewed the responsive documents more than once and produced all non-exempt and segregable information."  "The agency conducted a 'line-by-line review' to identify information exempt from disclosure."  "These representations suffice."
   
• Litigation Considerations:  Responding to plaintiff's argument "that the Court should now oversee and presumably adjudicate his new pending [NSF Inspector General ("OIG")] FOIA Request and another new FOIA Request that he submitted to NSF in June 2021[,]" the court finds that "a requester may not expand the scope of his FOIA request(s) during litigation."  "The Court thus declines to consider issues relating to [plaintiff's] OIG FOIA Request and New NSF FOIA Request."