Cole v. Olthoff, No. 19-1070, 2021 WL 2555505 (D.D.C. June 22, 2021) (Friedrich, J.)

Cole v. Olthoff, No. 19-1070, 2021 WL 2555505 (D.D.C. June 22, 2021) (Friedrich, J.)

Re:  Request for certain first-person interviews, in which interviewees described their experiences and answered questions posed by NIST officials and National Commission on Terrorist Acts Upon the United States (the 9/11 Commission) concerning emergency operations, building issues, and safety problems related to World Trade Center buildings

Disposition:  Granting defendant's renewed motion for summary judgment; denying plaintiff's renewed motion for summary judgment

• Litigation Considerations, Waiver of Exemptions in Litigation:  The court holds that "NIST has . . . not forfeited its ability to assert Exemption 3 with respect to the notes of [one interview]."  "As NIST explained at the outset of this litigation, it failed to invoke Exemption 3 with respect to the notes from [the interview] because the NIST Director's 2008 finding [which would have supported the Exemption 3 withholding] unintentionally omitted former . . . employees [of a company at issue] '[d]ue to an oversight.'"  "And NIST invoked Exemption 3 shortly after the NIST Director issued a supplemental finding to address this error."  "The delay was 'the result of a reasonable mistake, rather than an attempt to gain a tactical advantage over the FOIA requester' . . . ."  "[Plaintiff] has had an opportunity to fully respond to NIST's Exemption 3 argument, and the D.C. Circuit has allowed agencies to make exemption claims on appeal for the first time in somewhat analogous circumstances."
   
• Exemption 3:  The court relates that "NIST relies on section 7 of the National Construction Safety Team Act[, 15 U.S.C. § 7306]"  "As the Court has previously held, 'the National Construction Safety Team Act qualifies as a withholding statute under FOIA Exemption 3.'"  The court finds that "[t]he notes of Interview 1041704 also fall within the statute."  "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.'"  "Like the notes from the other interviews that [plaintiff] requested . . . the notes from Interview 1041704 satisfy § 7306(c)'s criteria."  "First, NIST's Director has exercised his authority pursuant to this section to find that disclosure of interviews with 'employees or former employees of [a company at issue]' would 'inhibit the voluntary provision of that type of information in this and future investigations.'"  "Second, this interview constituted 'voluntarily provided safety-related information,' . . . as the interviewee 'consented to testify before NIST, the 9/11 Commission, and the City of New York concerning the emergency operations, building issues, and safety issues surrounding the 9/11 emergency response.'"  "And third, as § 7306(c) requires, the interview was 'not directly related to the building failure being investigated,' because it was focused on the emergency response and the evacuation procedures employed on September 11, 2001, . . . rather than the details regarding the structural integrity of the buildings being evacuated."
  
  The court relates that "[plaintiff] resists this conclusion by contending that NIST cannot rely on the NIST Director's finding regarding former employees of [the company at issue] because it was made after [plaintiff] submitted his FOIA request."  "But [the court finds that] while an agency must demonstrate that the withholding statute it invokes in conjunction with Exemption 3 'was in effect at the time of the request,' . . . neither Exemption 3 nor § 7306(c) preclude NIST from relying on findings made after a plaintiff's FOIA request was submitted."  "And [plaintiff] has put forth no evidence to support his assertion that NIST has acted in 'bad faith,' . . . or to rebut the declarations that NIST has submitted, which attest that the omission of former [company] employees from the NIST Director’s prior finding was the product of 'an oversight' . . . ."
   
• Litigation Considerations, In Camera Inspection:  The court finds that "[g]iven that the record demonstrates that the notes of Interview 1041704 meet the criteria of § 7306(c) and there is no evidence of agency bad faith, the Court declines [plaintiff's] request to conduct an in camera review."