Case Detail

FOIA Project Annotation: A federal court in New York has ruled that a document pertaining to potential causes of mass stranding of whales in North Carolina in January 2005 is not protected by Exemption 5 (deliberative process privilege) because most of it is factual. The National Marine Fisheries Service, a component of the National Oceanic and Atmospheric Administration, claimed the one-page record was a draft for a final report expected to be issued in the first half of 2006. But the court pointed out that "the defendants' characterization stretches the concept of a 'draft' too far, especially where the author of the Document expects 'NOAA's final report to differ significantly from the [Document], which is merely an initial overview of the investigation in bullet-point format.' The [Document] cannot be characterized as an early draft of the final report expected to be released in 2006." However, the court then noted that "it is clear from the author's affidavit and the document itself that the Document was prepared in preparation for a later agency report, and is thus a pre-decisional document." Reviewing the document in camera the court found that most of the information was factual, although there were several lines that qualified as deliberative. The agency argued that the document was a preliminary assessment, but the court observed that "preliminary findings as to objective facts are not shielded because an agency does not have the same discretion in determining facts as determining policy." The court added that "disclosing tentative preliminary factual findings in the Document is unlikely to reveal the decision making process involved in drafting the final report about a year later after receiving additional data. Moreover, the defendants have not met their burden of demonstrating that disclosing preliminary findings would reveal the decision making process with regard to policy â€" as opposed to factual â€" determinations in the final report."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative

Date Filed	Doc #	Docket Text
2005-06-01	1	COMPLAINT against National Marine Fisheries Service, U.S. Department of Commerce. (Filing Fee $ 250.00, Receipt Number 545145)Document filed by Natural Resources Defense Council, Inc..(mo, ) Additional attachment(s) added on 6/6/2005 (jeh, ). (Entered: 06/02/2005)
2005-06-01		SUMMONS ISSUED as to National Marine Fisheries Service, U.S. Department of Commerce. (mo, ) (Entered: 06/02/2005)
2005-06-01	2	RULE 7.1 DISCLOSURE STATEMENT. Document filed by Natural Resources Defense Council, Inc..(mo, ) Additional attachment(s) added on 6/6/2005 (jeh, ). (Entered: 06/02/2005)
2005-06-01		Case Designated ECF. (mo, ) (Entered: 06/02/2005)
2005-06-01		Magistrate Judge Kevin N. Fox is so designated. (mo, ) (Entered: 06/02/2005)
2005-06-27	4	MOTION (FILED ON SERVICE DATE) for Eric R. Glitzenstein and Erin M. Tobin to Appear Pro Hac Vice. Annexed declaration of Eric R. Glitzentein and Erin M. Tobin. Document filed by Natural Resources Defense Council, Inc. (kw, ) (Entered: 06/30/2005)
2005-06-27	5	MOTION (FILED ON SERVICE DATE) for Cara A. Horowitz to Appear Pro Hac Vice. Document filed by Natural Resources Defense Council, Inc. (kw, ) (Entered: 07/01/2005)
2005-06-28	3	ENDORSED LETTER addressed to Judge John G. Koeltl from Pierre G. Armand dated 6/27/05 re: Counsel writes to request a 30 day extension to time to 8/4/05 to respond to the complaint in this action. Application granted. So Ordered. (Signed by Judge John G. Koeltl on 6/28/05) (jco, ) (Entered: 06/29/2005)
2005-06-28		Set Answer Due Date purs. to 3 Endorsed Letter, as to National Marine Fisheries Service answer due on 8/4/2005; U.S. Department of Commerce answer due on 8/4/2005. (jco, ) (Entered: 06/29/2005)
2005-07-21		***DELETED DOCUMENT. Deleted document number 6 Motion Pro Hac Vice. The document was incorrectly filed in this case. (rag, ) (Entered: 07/21/2005)
2005-07-22	6	MEMORANDUM ENDORSEMENT: granting 5 Motion for Cara A. Horowitz to Appear Pro Hac Vice. (Signed by Judge John G. Koeltl on 7/21/05) (db, ) (Entered: 07/25/2005)
2005-07-22	7	MEMORANDUM ENDORSEMENT: GRANTING 4 Motion for Eric R. Glitzenstein and Erin M. Tobin to Appear Pro Hac Vice. (Signed by Judge John G. Koeltl on 7/21/05) (db, ) (Entered: 07/25/2005)
2005-07-28		CASHIERS OFFICE REMARK on 6 Order on Motion to Appear Pro Hac Vice, 7 Order on Motion to Appear Pro Hac Vice in the amount of $75.00, paid on 7/28/05, Receipt Number 551166. (mlo, ) (Entered: 07/28/2005)
2005-08-04	8	ANSWER to Complaint. Document filed by National Marine Fisheries Service, U.S. Department of Commerce.(Armand, Pierre) (Entered: 08/04/2005)
2005-08-12	9	ORDER; by 9/26/05, defendants will serve a motion for summary judgment; 10/28/05, plaintiff will respond to the motion and, if it chooses, serve a cross-motion for summary judgment on the defendants; 11/18/05, the defedants will reply to the plaintiff's respone and, if a cross-motion is served, respond to the cross-motion; by 12/1/05, if a cross-motion for summary judgment is served, the plaintiff will reply to the defendants' cross-motion for summary judgment. (Signed by Judge John G. Koeltl on 8/12/05) (sac, ) (Entered: 08/16/2005)
2005-09-13	10	SUMMONS RETURNED EXECUTED. National Marine Fisheries Service served on 6/6/2005, answer due 8/4/2005; U.S. Department of Commerce served on 6/7/2005, answer due 8/4/2005. Service was made by Mail. Document filed by Natural Resources Defense Council, Inc.. (Bernard, Mitchell) (Entered: 09/13/2005)
2005-09-26	11	MOTION for Summary Judgment. Document filed by National Marine Fisheries Service, U.S. Department of Commerce. Responses due by 10/28/2005 (Armand, Pierre) . (Entered: 09/26/2005)
2005-09-26	12	MEMORANDUM OF LAW in Support re: 11 MOTION for Summary Judgment.. Document filed by National Marine Fisheries Service, U.S. Department of Commerce. (Armand, Pierre) (Entered: 09/26/2005)
2005-09-26	13	DECLARATION of Philip Michael Payne in Support re: 11 MOTION for Summary Judgment.. Document filed by National Marine Fisheries Service, U.S. Department of Commerce. (Attachments: # 1 )(Armand, Pierre) (Entered: 09/26/2005)
2005-09-26	14	RULE 56.1 STATEMENT. Document filed by National Marine Fisheries Service, U.S. Department of Commerce. (Armand, Pierre) (Entered: 09/26/2005)
2005-10-28	15	MOTION for Summary Judgment. Document filed by Natural Resources Defense Council, Inc.. Responses due by 11/18/2005 (Tobin, Erin) (Entered: 10/28/2005)
2005-10-28	16	MEMORANDUM OF LAW in Support re: 15 MOTION for Summary Judgment.. Document filed by Natural Resources Defense Council, Inc.. (Attachments: # 1 Exhibit # 2 Exhibit)(Tobin, Erin) (Entered: 10/28/2005)
2005-10-28	17	AFFIDAVIT of Cara Horowitz in Support re: 15 MOTION for Summary Judgment.. Document filed by Natural Resources Defense Council, Inc.. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit # 4 Exhibit # 5 Exhibit # 6 Exhibit # 7 Exhibit # 8 Exhibit # 9 Exhibit # 10 Exhibit # 11 Exhibit # 12 Exhibit # 13 Exhibit # 14 Exhibit # 15 Exhibit # 16 Exhibit # 17 Exhibit # 18 Exhibit # 19 Exhibit # 20 Exhibit # 21 Exhibit # 22 Exhibit # 23 Exhibit # 24 Exhibit # 25 Exhibit # 26 Exhibit # 27 Exhibit)(Tobin, Erin) (Entered: 10/28/2005)
2005-10-28	18	RULE 56.1 STATEMENT. Document filed by Natural Resources Defense Council, Inc.. (Tobin, Erin) (Entered: 10/28/2005)
2005-11-22	19	MEMORANDUM OF LAW in Opposition re: 15 MOTION for Summary Judgment.. Document filed by National Marine Fisheries Service, U.S. Department of Commerce. (Armand, Pierre) (Entered: 11/22/2005)
2005-11-22	20	REPLY AFFIDAVIT of Philip Michael Payne in Opposition re: 15 MOTION for Summary Judgment.. Document filed by National Marine Fisheries Service, U.S. Department of Commerce. (Armand, Pierre) (Entered: 11/22/2005)
2005-11-22	21	REPLY AFFIDAVIT of Teresa K. Rowles in Opposition re: 15 MOTION for Summary Judgment.. Document filed by National Marine Fisheries Service, U.S. Department of Commerce. (Armand, Pierre) (Entered: 11/22/2005)
2005-11-22	22	RULE 56.1 STATEMENT. Document filed by National Marine Fisheries Service, U.S. Department of Commerce. (Armand, Pierre) (Entered: 11/22/2005)
2005-12-07	25	ENDORSED LETTER addressed to Judge Koeltl from Pierre Armand dated 11/18/05: granting application for the Govt to serve its reply papers in further support of its motionf or summary judgment and in opposition to plntf's cross motion for summary judgment by 2 busniess days, from 11/18 to 11/22/05. The parties further request that the Court extend the deadline for plntf to serve its reply papers in further support of its cross motion for summary judgment from 12/1 until 12/8/05. (Signed by Judge John G. Koeltl on 11/17/05) (cd, ) (Entered: 12/09/2005)
2005-12-08	23	REPLY MEMORANDUM OF LAW in Support re: 15 MOTION for Summary Judgment.. Document filed by Natural Resources Defense Council, Inc.. (Tobin, Erin) (Entered: 12/08/2005)
2005-12-08	24	REPLY AFFIDAVIT of Cara Horowitz in Support re: 15 MOTION for Summary Judgment.. Document filed by Natural Resources Defense Council, Inc.. (Attachments: # 1 )(Tobin, Erin) (Entered: 12/08/2005)
2006-01-10	27	OPINION AND ORDER 92609 re: 15 MOTION for Summary Judgment filed by Natural Resources Defense Council, Inc. The plaintiff's motion for summary judgment is partially granted with respect to the disclosure of certain unreleased material in the April document. The Court will file under seal a copy of the April document marked to indicate to the defendants which portion can reamin redacted. The defendants are required to produce the remainder of the document by 1/16/2006. (Signed by Judge John G. Koeltl on 1/9/06) (kco, ) Modified on 1/20/2006 (dn, ). (Entered: 01/10/2006)
2006-01-24	28	ENDORSED LETTER addressed to Judge John G. Koeltl from Pierre G. Armand dated 1/20/06 re: Counsel writes to request to advise the Court of the status of the parties' settlement discussion on or before 1/31/06. Application Granted. So Ordered. (Signed by Judge John G. Koeltl on 1/20/06) (jco, ) (Entered: 01/25/2006)
2006-01-31	29	TRANSCRIPT of proceedings held on 12/22/05 before Judge John G. Koeltl. (lma, ) (Entered: 01/31/2006)
2006-02-21	30	STIPULATION OF PARTIAL SETTLEMENT AND PROPOSED ORDER: the pending cross-motions for summary judgment are determined as moot as further set forth in said Order. (Signed by Judge John G. Koeltl on 2/7/06) (db, ) (Entered: 02/22/2006)
2006-11-15	31	ORDER; that a phone conference in this matter is scheduled for 12/8/06 @2:30 p.m. (Signed by Judge John G. Koeltl on 11/9/06) (pl, ) (Entered: 11/15/2006)
2006-11-15		Set Deadlines/Hearings: Telephone Conference set for 12/8/2006 02:30 PM before Judge John G. Koeltl. (pl, ) (Entered: 11/15/2006)
2007-03-21	32	ORDER; Phone Conference set for 5/16/2007 05:30 PM before Judge John G. Koeltl. (Signed by Judge John G. Koeltl on 3/20/07) (pl) (Entered: 03/22/2007)
2007-05-16	33	ENDORSED LETTER addressed to Judge Kohn G. Koeltl from Pierre G. Armand dated 5/4/07 re: Application GRANTED. The status conference is adjourned to 7/24/07 at 4:30 p.m. (Signed by Judge John G. Koeltl on 5/16/07) (db) (Entered: 05/17/2007)
2007-05-16		Set/Reset Hearings: Status Conference set for 7/24/2007 04:30 PM before Judge John G. Koeltl. (db) (Entered: 05/17/2007)
2007-08-28	34	STIPULATION AND ORDER REGARDING ATTORNEYS' FEES AND COSTS the United States of America shall pay to plaintiff the sum of $117,500, in attorneys' fees and litigation costs, pursuant to the Freedom of Information Act ("FOIA"). (Signed by Judge John G. Koeltl on 8/28/07) (jco) (Entered: 08/28/2007)
2007-10-12	35	ORDER OF DISCONTINUANCE that the settled action be discontinued with prejudice but without costs; provided, however, that within 30 days of the date of this order, counsel for the plaintiff may apply by letter for restoration of the action to the calendar ofthe undersigned, in which event the action will be restored. (Signed by Judge John G. Koeltl on 10/10/07) (cd) (Entered: 10/15/2007)
2008-02-14	36	ENDORSED LETTER addressed to Judge John G. Koeltl from Pierre G. Armand dated 1/31/2006 re: I write to advise the Court that the parties in the above-referenced case are close to reaching an agreement on a settlement of the summary judgment issue concerning the adequacy of defendants' search for documents responsive to plaintiffs FOIA requests. Accordingly, unless the Court objects, the parties will advise the Court in writing on or before February 6, 2006 as to whether an agreement has been reached. ENDORSEMENT: Application Granted SO ORDERED. (Signed by Judge John G. Koeltl on 1/31/2006) (jmi) (Entered: 02/15/2008)
Hide Docket Events