Judicial Watch, Inc. v. Dep't of Commerce, No. 17-1283, 2019 WL 1317557 (D.D.C. Mar. 22, 2019) (Sullivan, J.)

Judicial Watch, Inc. v. Dep't of Commerce, No. 17-1283, 2019 WL 1317557 (D.D.C. Mar. 22, 2019) (Sullivan, J.)
 

Re:  Request for communications between NOAA scientist Director of the Office of Science and Technology Policy at NOAA from January 20, 2009, through January 20, 2017
 

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

• Exemption 5, Deliberative Process Privilege:  "Because Commerce has failed to satisfactorily show that the redactions under Exemption 5 would result in reasonably foreseeable harm to its deliberative process, the Court denies Commerce's motion."  "[T]he Court finds that the declarations and supporting Vaughn indexes fall short of what is required under the Act."  The court explains that "[defendant's] general explanations of the possibility of a 'chilling effect' fall short of articulating 'a link between the specified harm and specific information contained in the material withheld.'"  The court finds that "[i]f the mere possibility that disclosure discourages a frank and open dialogue was enough for the exemption to apply, then Exemption 5 would apply whenever the deliberative process privilege was invoked regardless of whether disclosure of the information would harm an interest protected by the exemption."  "However, in enacting the legislation [the FOIA Improvement Act of 2016], Congress intended that the technical application of an exemption was not sufficient without a showing that disclosure also harmed an interest the exemption sought to protect in the first place."  "Commerce has provided no explanation as to why disclosure is likely to discourage frank and open dialogue as to the specific withholdings – or categories of withholdings – in this case."  "The question is not whether disclosure could chill speech, but rather if it is reasonably foreseeable that it will chill speech and, if so, what is the link between this harm and the specific information contained in the material withheld."  "In other words, the Act requires more than speculation, which is all that Commerce has provided through its declarations and Vaughn indexes."