Pavement Coatings Tech. v. U.S. Geological Survey, No. 14-1200, 2019 WL 7037527 (D.D.C. Dec. 19, 2019) (Jackson, J.)

Pavement Coatings Tech. v. U.S. Geological Survey, No. 14-1200, 2019 WL 7037527 (D.D.C. Dec. 19, 2019) (Jackson, J.)

Re:  Request for records concerning consideration, regulation, and review of coal tar or asphalt sealants

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

• Exemption 5, Deliberative Process Privilege:  The court holds that defendant properly invoked Exemption 5.  First, the court finds that the documents at issue are pre-decisional and explains that "when a plaintiff requests records of documents 'surrounding or leading up to an agency publication, the relevant agency decision' for the purpose of determining whether the material is pre-decisional under FOIA's Exemption 5 is the decision whether to publish."  The court finds that "it appears that [plaintiff] has sought disclosure of the underlying methods that USGS utilized to study tar sealants, as well as the agency's pre-publication findings regarding such sealants, precisely because [plaintiff] is interested in discovering, and challenging, the agency's thought processes leading up to its sealant-related publications."  Second, "[the] Court agrees with USGS that notes about scientific studies, draft materials, internal colleague reviews, external peer reviews, and internal editorial reviews . . . are all deliberative by nature for the purpose of Exemption 5."  Responding to the first of plaintiff's objections, the court finds that "[t]he fact that the agency ultimately did not publish a report memorializing all of the underlying research [plaintiff] seeks is of no moment."  Responding to another of plaintiff's objections, the court finds that "[plaintiff] is mistaken to argue that, by disclosing its 'raw data' but withholding its 'exploratory analysis,' USGS has improperly withheld 'purely factual,' rather than truly 'deliberative,' material."  "To the contrary, the 'choice of what factual material . . . to include or remove during the drafting process is itself often part of the deliberative process' . . . ."  Responding to a final objection, the court finds that "[n]or does the fact that certain documents were prepared by external consultants make any difference with respect to the agency's invocation of Exemption 5."  "The 'consultant corollary' extends the same Exemption 5 protection to documents that external consultants 'create[ ] for the purpose of aiding the agency's deliberative process.'"  "In this case, the withheld documents include '[d]ocuments jointly written and/or transmitted to and from [various] non-federal entities[,]' each of which 'USGS collaborated with to publish [the agency's] results or corresponded with' in the course of the agency's research."
   
• Exemption 6:  "[The] Court concludes that USGS has made the requisite showing that the information was properly withheld under Exemption 6."  First, the court finds that "the names and addresses of volunteers who provided samples to the agency during its research study qualify as 'similar files' within the scope of Exemption 6."  Second, the court finds that "the volunteers' reasonable (and promised) expectation of confidentiality and privacy alone is enough to implicate Exemption 6 . . . ."  Third, the court finds that "the purpose of the FOIA is not to allow the public to replicate the agency's deliberations by collecting its own data from the sources that an agency relies upon."  "Instead, the far more modest goal of the FOIA statute is to shed light on an agency's decisionmaking; nowhere does Congress indicate that members of the public must have access to all of the inputs that the agency had in order to design and undertake their own evaluation and/or test the agency's conclusions."