Skip to main content

Cole v. Copan, No. 19-1070, 2020 WL 5061669 (D.D.C. Aug. 27, 2020) (Friedrich, J.)

Date

Cole v. Copan, No. 19-1070, 2020 WL 5061669 (D.D.C. Aug. 27, 2020) (Friedrich, J.)

Re:  Request for records of eight interviews concerning emergency response to September 11, 2001 terrorist attacks

Disposition:  Granting in part and denying in part defendant's motion for summary judgment; denying in part plaintiff's cross-motion for summary judgment

  • Litigation Considerations, Adequacy of Search:  The court holds that "NIST has met its initial burden by submitting agency declarations and documents that are detailed and nonconclusory."  The court explains that "NIST personnel searched agency files, personal files, computers, storage areas, audiotapes, and 'any other place that might contain responsive material' . . . ."  The court relates that "[plaintiff] highlights NIST's use of the word 'transcribed' in one sentence of its [a] report" as an argument that audio tapes must exist.  "But NIST asserts that the word 'transcribed' refers only to the hand-written notes originally taken during the interviews."  "Given the ambiguity of 'transcribed' in this context, NIST's explanation is a reasonable one, and [plaintiff] has offered no other evidence that verbatim transcriptions exist."  "Cole also objects to NIST's search on the ground that NIST never searched [one] database, even though it admitted that it had previously imported the interview records into this computer program."  "But NIST had no obligation to examine the . . . database because it no longer subscribes to the database."  "Moreover, the . . . database only contained copies of the same interview notes that the agency already located."
     
  • Exemption 3:  "Because the National Construction Safety Team Act qualifies as an Exemption 3 withholding statute and the seven interviews withheld under Exemption 3 satisfy the criteria of § 7306(c), [the court holds that] the Act exempts them from disclosure, and the notes concerning these interviews were properly withheld in full."  The court relates that "NIST invokes FOIA Exemption 3 to justify withholding seven of the eight sets of interview notes of FDNY, NYPD, and other New York City officials."  "NIST relies on section 7 of the National Construction Safety Team Act, which cites FOIA Exemption 3."  'Neither party contests that the National Construction Safety Team Act qualifies as a withholding statute under FOIA Exemption 3."  The court relates that "15 U.S.C. 7306(c) prohibits 'any agency receiving information from a Team or the National Institute of Standards and Technology' from disclosing 'voluntarily provided safety-related information if that information is not directly related to the building failure being investigated and the Director finds that the disclosure of the information would inhibit the voluntary provision of that type of information.'"  "And in January 2010, NIST's Director exercised his authority pursuant to this section to find that disclosure of interviews with FDNY, NYPD, and New York City officials 'would inhibit the voluntary provision of that type of information in this and future investigations.'"  "[Plaintiff] argues that because the interviewees provided their testimony to multiple governmental bodies, rather than to NIST alone, they fall outside the purview of § 7306(c)."  The court finds that "the statutory text explicitly forbids NIST as well as 'any [other] agency receiving information' from disclosing it once the NIST Director 'finds that the disclosure of the information would inhibit the voluntary provision of that type of information.'"  "Nothing in the plain language of the National Construction Safety Team Act indicates that this exemption applies only to information provided to NIST alone, as opposed to information simultaneously provided to other governmental bodies."  "[Plaintiff] also contends that the interviews were not 'voluntarily provided' because these various current and former state government employees had a preexisting legal duty to report the information they divulged in the interviews."  "But any duty to report arising out of these individuals' government employment would not have been owed to any entity beyond the state and municipal governments that employed them."
     
  • Exemption 6 & Litigation Considerations, "Reasonably Segregable" Requirements:  The court holds that "[t]o the extent that [certain] notes of [an] interview [with a private citizen] reflect personal details about the interviewee's subjective reactions to the events of September 11, 2001, or reveal the identity of the interviewee or other witnesses to those events, the privacy interests in those notes are more than substantial."  "This interviewee, a private citizen, was a victim in the September 11 attacks, and nothing in the record indicates that he expected his voluntary testimony would become public."  "It is 'common sense' that 'victim allegation statements [are] privacy-related' because 'crime reports and statements by victims[ ] can be of the most private nature.'"  "Against these privacy interests, [plaintiff] asserts the public's interest in learning that NIST 'spent millions of taxpayers' dollars but failed to detect the actual cause of these building collapses, with the result being that the FBI is not even investigating the crimes involved in placing explosives in these buildings let alone getting the perpetrators off the streets.'"  "Because the asserted public interest is outweighed by the substantial privacy interests at stake, Exemption 6 properly applies."  "Nonetheless, the Court has an 'affirmative duty' to determine 'sua sponte,' . . . whether '[a]ny reasonably segregable portion of a record' can 'be provided to any person requesting such record after deletion of the portions which are exempt' . . . ."  "Based on the current record, NIST has not clearly established that the exempt and nonexempt portions of [the interview] are 'inextricably intertwined' such that 'it would be impossible to produce meaningful information while redacting the exempt portions.'"
     
  • Litigation Considerations, Discovery:  The court holds that "[plaintiff] has failed to submit an affidavit in support of his discovery motion – let alone one that (1) 'outline[s] the particular facts [the non-movant] intends to discover and describe why those facts are necessary to the litigation'; (2) 'explain[s] why [the non-movant] could not produce the facts in opposition to the motion for summary judgment'; and (3) 'show[s] the information is in fact discoverable,' as Circuit precedent requires."  "Because there is no evidence that NIST has acted in bad faith, the Court will not order discovery."
Court Decision Topic(s)
District Court opinions
Exemption 3
Exemption 6
Litigation Considerations, Adequacy of Search
Litigation Considerations, Discovery
Litigation Considerations, “Reasonably Segregable” Requirements
Updated October 7, 2020