Pavement Coatings Tech. Council v. U.S. Geological Surv., No. 20-5035, 2021 WL 1823300 (D.C. Cir. May 7, 2021) (Wilkins, J.)

Pavement Coatings Tech. Council v. U.S. Geological Surv., No. 20-5035, 2021 WL 1823300 (D.C. Cir. May 7, 2021) (Wilkins, J.)

Re:  Request for records concerning agency's coal tar sealant studies

Disposition:  Affirming in part and reversing and remanding in part district court's grant of government's motion for summary judgment

• Exemption 5, Deliberative Process Privilege:  "[The Court of Appeals for the District of Columbia Circuit] reverse[s] and remand[s] to the District Court [the requester's] claims regarding the urban lakes model runs withheld under Exemption Five."  The court relates that "USGS seeks to withhold some 196 unpublished model runs under Exemption Five."  "The agency first failed to introduce any evidence establishing what role the requested model runs played in its decision to publish the urban lakes study."  The court explains that "[it is] faced with a record devoid of evidence that any decision-maker at USGS considered the discarded model runs in determining whether and in what form to publish the urban lakes study."  "All [it is] told is that 'approving officials may have seen some' of the discarded runs in preliminary drafts, . . . but this claim was made only at oral argument and is unsupported by the record evidence."  "USGS chose to identify its decision as the decision to publish, but it did not explain how that decision was made, aside from averring that the process included peer review."  "Yet USGS failed to explain in detail whether the model runs were shared with peer reviewers and what role, if any, they played in the peer review process."  The court "requires USGS to establish how its decision to publish the urban lakes study was reached; what information was shared with reviewers, internal and external; whether drafts reviewed by agency officials making the publication decision included the underlying model run data; and how the exploratory data runs influenced the decision to publish or the form the final publication would take."  "Without this information, USGS has 'failed to supply us with even the minimal information necessary to make a determination.'"
   
  Additionally, "[the court] find[s] no evidence on this record that disclosing the model runs would expose the Survey's decision-making process 'in such a way as to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions.'"  The court notes that "[t]he agency's affidavits contain no explicit statement that disclosure will harm the agency's decision-making."  Additionally, the court notes that "[t]o the contrary, [the requester] introduced evidence that disclosure of the model runs will not impede or impair the scientists' work going forward."  "[The court] find[s] sufficient uncertainty about whether this type of data is ordinarily disclosed, or whether there is an expectation that it will not be disclosed, or what impact it would have if is disclosed, to rule for USGS at the summary judgment stage."
   
• Exemption 6:  "[The Court of Appeals for the District of Columbia Circuit] affirm[s] the District Court's grant of summary judgment to USGS with respect to the sampling location information collected for the 2010 house dust study."  The court finds that "[t]he study participants have a greater than de minimis privacy interest in their addresses, household compositions, smoking and cooking habits, and the extensive personal details included in the questionnaires."  "And releasing their addresses serves no cognizable public interest because it would shed no additional light on the Survey's 'operations or activities,' since USGS has already produced the questionnaires and a 'means by which to match [participants'] responses to the results of the sample analysis.'"  "[The requester] thus has all the data it needs to replicate the USGS scientists’ analysis of how participants’ habits may have impacted the concentration of coal tar sealant in their homes."  "And in any case, [the requester's] desire to identically replicate the study using the addresses is foreclosed given that coal tar sealant has been outlawed in the relevant area since 2006."