Competitive Enter. Inst. v. Office of Sci. and Tech. Policy, No. 14-01806, 2016 WL 544463 (D.D.C. Feb. 10, 2016) (Mehta, J.)

Competitive Enter. Inst. v. Office of Sci. and Tech. Policy, No. 14-01806, 2016 WL 544463 (D.D.C. Feb. 10, 2016) (Mehta, J.)

Re: Request for records concerning video discussing growing body of evidence linking "Polar Vortex" to global warming

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

• Exemption 5, Deliberative Process Privilege:  "[T]he court finds that the 47 draft pages of the OSTP Letter [created "in order to help formulate OSTP's response to [plaintiff's] Request for Correction" [made under the Information Quality Act]] were covered by the deliberative process privilege and thus properly withheld from production under Exemption 5."  "The drafts plainly were predecisional—they preceded in time the final version of OSTP Letter."  "And they were deliberative—they reflect the opinions, reactions, and comments of OSTP employees to the OSTP Letter."  In response to one of plaintiff's arguments, the court finds that "the drafts at issue here are not 'merely peripheral' to a legal or policy matter."  "On the contrary, they relate directly to a legal matter."  "The OSTP Letter expressed OSTP''s legal position on whether the Information Quality Act and implementing guidelines required it to correct statements made in the Polar Vortex video and in the related blog post."  Additionally, in response to plaintiff's segregability arguments, the court finds that "[t]he deliberative process privilege protects not only the content of drafts, but also the drafting process itself."  "Any effort to segregate the 'factual' portions of the drafts, as distinct from their 'deliberative' portions, would run the risk of revealing 'editorial judgments—for example, decisions to insert or delete material or to change a draft''s focus or emphasis.'"

Additionally, "[b]ased on a review of [withheld e-mails], as well as OSTP's Vaughn Index, the court concludes that OSTP has failed to demonstrate that the deliberative process privilege applies to the withheld material."  The court finds that "[i]f the video was an expression only of [the Director's] personal opinion, then it follows that internal communications about the video cannot be part of a process of formulating agency policy."  "The court''s review of the emails confirms that conclusion."

• Exemption 5, "Inter-Agency or Intra-Agency" Threshold Requirement:  "The court . . . rejects Defendant''s attempt to apply the consultant corollary" to "the five draft pages of the OSTP Letter that [OSTP] shared with . . . a Rutgers University professor."  In analyzing the consult corollary, the court finds that "[w]hether a person is self-interested in a particular situation is not a binary question."  "Rather, self-interest exists on a spectrum, with altruism at one end and greed or avarice on the other."  "The point at which selflessness passes into self-interest is not demarcated by a bright line."  The court then finds that the professor "had a professional and reputational stake in OSTP''s decision to reject Plaintiff''s request to correct [the] statements, which endorsed her climate theory." "A government consultant, of course, is permitted to have a point of view."  "But here, [the professor] cannot be likened to a government employee whose 'only obligations are to truth and its sense of what good judgment calls for[.]'"  "A decision by OSTP to correct [the] statements would have been contrary to [the professor's] self-interest."  "Indeed, such an action likely would have been perceived as a rebuke of her climate theory."  "Thus, [the professor] was not 'enough like the agency's own personnel to justify calling [her] communications '"intra-agency."'"
   
• Litigation Considerations, Discovery:  "[T]he court holds that OSTP's correction of the record does not warrant the limited discovery sought in this case."  "Although the initial [defendant] Declaration contained a significant error – asserting that none of the drafts were shared outside the Executive Branch – mistakes alone do not imply bad faith."  "Nor has Plaintiff shown through evidence that there is a factual dispute about the existence of other drafts that were shared outside the Executive Branch."