Ctr. for Pub. Integrity v. DOE, No. 18-1173, 2020 WL 1695083 (D.D.C. Apr. 6, 2020) (Jackson, J.)

Ctr. for Pub. Integrity v. DOE, No. 18-1173, 2020 WL 1695083 (D.D.C. Apr. 6, 2020) (Jackson, J.)

Re:  Request for all "'reports produced by national laboratories for consideration in the upcoming Nuclear Posture Review'"

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

• Exemption 5, Deliberative Process Privilege:  "[T]he Court finds that the agencies have properly invoked Exemption 5 . . . ."  The court notes that plaintiff only argues that "(1) the information is not deliberative; and (2) defendants have not sufficiently shown that disclosure would cause foreseeable harm."  First, "[b]ased on the Court's in-camera review, as well as the information provided in the government's affidavits, the Court finds that the information is deliberative, and that defendants have not withheld purely factual information."  "The agencies withheld policy alternatives that were not ultimately adopted by the agency in the Nuclear Posture Review, as well as analyses of national security concerns related to foreign nuclear capabilities."  "The reports lay out the pros and cons involved in a number of potential decisions, which is precisely what is meant by the 'give-and-take of the consultative process.'"  Second, "[t]he Court finds that the record supports a finding that the agencies reasonably foresaw that disclosure of the redacted portions of the records could cause harm that Exemption 5 was meant to prevent."  The court relates that "[t]he agencies have avowed that release of the information 'could undermine the government's ability to engage in future deliberations on the matter' and cause confusion because 'the information reflects opinions stated in apparent fact form about U.S. policy toward other countries.'"  "The withholdings also contain information . . . not included in the final Nuclear Posture Review, and the 'U.S. position on this matter is in flux and politically sensitive; release of this recommendation could harm the [g]overnment's deliberations as to how to approach this topic and confuse the public.'"
   
• Exemption 6:  The court holds that "employees' names may be redacted pursuant to Exemption 6."  The court finds that "'[s]imilar files' encompasses 'not just files, but also bits of personal information, such as names and addresses, the release of which would "create[ ] a palpable threat to privacy."'"  "The parties do not dispute that the information at issue falls within that category."  "[T]he Court finds that there is a substantial interest at stake in the release of the names and email addresses of the low-level employees."  The court finds that "'[r]elease of their names would likely cause an unwarranted invasion of their privacy because they could be subjected to unwanted attention, scrutiny or harassment by persons or entities harboring political, philosophical or other objections to the mission and operations of the management and operation contracts.'"  Against this privacy interest, the court finds that "plaintiff has not explained how the names of low-level employees, with no decision-making authority, will expose the operations of the government."  "Thus, the Court finds that the interest in keeping these employees' names private outweighs any public interest."  "The employees' names may be redacted pursuant to Exemption 6."  "However, the Court finds that the names of the laboratories associated with each individual are not appropriately withheld under this Exemption."  "Therefore, that portion of an email address in question that consists of an individual's name may remain redacted, but the portion after the '@' symbol that identifies the lab must be disclosed."
   
• Exemption 7, Threshold; Exemption 7(F):  "Based on the Court’s in-camera inspection of the information, the Court finds that the information falls within Exemption 7(F)."  The court finds that "'"[l]aw enforcement entails more than just investigating and prosecuting individuals,"' . . . it '"includes . . . proactive steps designed to prevent criminal activity and to maintain security."'"  "Because the information relates to security concerns at nuclear facilities, and the declarants have credibly averred that disclosure could make these facilities targets of foul play and endanger the individuals who work there or the public at large, the Court finds that the information was compiled for law enforcement purposes, and it falls within the exemption."  "However, defendants should keep in mind that future affiants should provide more information regarding when, by whom, and why the information was 'compiled' to show how the information falls within Exemption 7 in general, and not simply rely on the ability to satisfy subsection (F)."
   
• Waiver:  The court holds that "defendants have not waived their right to claim [Exemption 7(F)] over the requested information."  The court finds that "[t]hese public documents do not meet the strict test of official acknowledgment, because the information requested does not match the information publicly disclosed."  "The information contained in the public sources does not overlap with the information redacted in the reports."  "Furthermore, the public documents that plaintiff referenced are not related to the Nuclear Posture Review, and defendants have averred that the information in the reports that was redacted under this exemption has not been publicly released."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "The Court finds that 'there is no further non-exempt information that can be reasonably segregated and released without revealing exempt information.'"