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Judicial Watch, Inc. v. Dep't of Commerce, No. 15-2088, 2017 WL 3822733 (D.D.C. Aug. 21, 2017) (Cooper, J.)


Judicial Watch, Inc. v. Dep't of Commerce, No. 15-2088, 2017 WL 3822733 (D.D.C. Aug. 21, 2017) (Cooper, J.)

Re:  Request for records concerning study by several NOAA scientists published in journal Science

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

  • Exemption 5, Deliberative Process Privilege:  The court holds that "[t]he drafts of the [study], internal deliberations, and peer reviewer comments . . . fall within the scope of Exemption 5."  The court finds that "[t]he drafts of the [study], the NOAA scientists' deliberations, and the peer review materials are . . . predecisional because they involve drafts and 'recommendation[s] (with suggestions) regarding an article's suitability for publication[.]"  "These documents are likewise deliberative because they form part of 'the deliberative decision about whether and in what form to publish' the [study][.]"  "And finally, NOAA (and its amici) put forth unrebutted evidence that disclosure here would harm the deliberative process, such as by creating a 'chilling effect on . . . the candor of potential reviewers of government-submitted articles[.]'"  The court also rejects "[plaintiff's] . . . conten[tion] that the documents withheld here cannot fall within the scope of Exemption 5 because they concern science, rather than policy."  Finally, the court finds that "[plaintiff] presents no evidence sufficient to raise the specter of [the] nefarious government misconduct [suggested by plaintiff]."
  • Litigation Considerations, "Reasonably Segregable" Requirements:  The court holds that "[t]he Department's affidavits adequately allege that the agency released all reasonably segregable material and [plaintiff] provides no evidence to contradict these affidavits or to otherwise rebut that presumption."
Court Decision Topic(s)
District Court opinions
Exemption 5
Exemption 5, Deliberative Process Privilege
Litigation Considerations, “Reasonably Segregable” Requirements
Updated December 13, 2021