Case Detail

FOIA Project Annotation: Judge Ketanji Brown Jackson has ruled the U.S. Geological Survey properly withheld records under Exemption 5 (privileges) and Exemption 6 (invasion of privacy) in response to a FOIA request from the Pavement Coatings Technology Council, a trade organization whose members are involved in the production, distribution, and sale of pavement surface coatings that contain refined tar sealant. PCTC submitted a FOIA request to the U.S. Geological Survey for 12 categories of records concerning its consideration, regulation, and review of coal tar or asphalt sealants. The agency located and disclosed all or portions of 52,000 responsive records. By the time Brown Jackson ruled, the only remaining disputes were over withholdings based on either Exemption 5 or Exemption 6. Brown Jackson noted that "when a plaintiff requests records or documents 'surrounding or leading up to an agency publication, the relevant agency decision' for purposes of determining whether the materials are pre-decisional under FOIA's Exemption 5 is the decision whether to publish." PCTC wanted to find out how the agency had conducted its studies so that it could replicate them. Brown Jackson explained that "it appears that PCTC 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 PCTC is interested in discovering and challenging the agency's thought processes leading up to its sealant-related publications. And its records request â€" which seeks notes, exploratory analysis, working papers or draft reports, and internal or external review of such drafts â€" thus squarely implicates material that falls within the protective reach of Exemption 5 insofar as it plainly pertaining to 'pre-decisional' scientific research developed in anticipation of publication." Noting that one reason for invoking the deliberative process privilege was to prevent public confusion about agency's decisions, Brown Jackson observed that "if the USGS scientists' notes, drafts, exploratory analyses, and peer review are produced as PCTC requests, there is also a clear risk of unfair attribution of individual scientists' or reviewers' impressions to the agency itself." She pointed out that "the fact that the agency ultimately did not publish a report memorializing all of the underlying research PCTC seeks is of no moment. . .[T]he material plainly reflects the deliberations that the agency undertook as part of its decision-making process, which is all that the FOIA requires." PCTC argued that disclosure of the scientific data would allow for the free exchange of ideas and allow others to reproduce or verify the work. But Brown Jackson noted that "FOIA's Exemption 5 rests on the opposite assumption â€" i.e., that disclosure of deliberative information would discourage candid discussions within the agency and would cause scientists to censor their internal discussions, deliberations, and analyses to conform to outside criticism regarding how to conduct or present research on refined tar sealants. Equally importantly, disclosure of deliberative information regarding studies that are not ultimately published â€" as in the circumstances presented here â€" could be misused by outside parties and cause public confusion. Such results are manifestly inconsistent with the purposes of Exemption 5." USGS withheld names and addresses of outside scientists under Exemption 6. PCTC argued that the agency could not withhold business-related information. However, Brown Jackson observed that "to the extent that identifying information such as an organization's address can implicate the privacy of individuals, releasing such sensitive information about the organization is functionally the same as releasing similar information about the organization's individual members." Brown Jackson also found that PCTC had not shown any public interest in disclosure. Finding that the privacy interests far outweighed any public interest, she pointed out that "in this case, the volunteers'[who participated in the USGS studies] privacy interest is substantial, given the volunteers' established expectation of confidentiality and the undisputed prospect of unwanted solicitation."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 5 - Privileges - Deliberative process privilege - Predecisional, Exemption 5 - Consultant privilege, Exemption 6 - Invasion of privacy

Date Filed	Doc #	Docket Text
2014-07-16	1	COMPLAINT FOR INJUNCTIVE RELIEF against UNITED STATES GEOLOGICAL SURVEY ( Filing fee $ 400 receipt number 0090-3780203) filed by PAVEMENT COATINGS TECHNOLOGY COUNCIL. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Civil Cover Sheet, # 11 Summons U.S. Attorney for D.C., # 12 Summons U.S. AG, # 13 Summons U.S. Geological Survey)(Kanter, David) (Entered: 07/16/2014)
2014-07-16	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by PAVEMENT COATINGS TECHNOLOGY COUNCIL (Kanter, David) (Entered: 07/16/2014)
2014-07-16		Case Assigned to Judge Ketanji Brown Jackson. (md, ) (Entered: 07/16/2014)
2014-07-16	3	SUMMONS (3) Issued Electronically as to UNITED STATES GEOLOGICAL SURVEY, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons 2nd, # 2 Summons 3rd, # 3 Notice of Consent, # 4 Consent Form) (md, ) (Entered: 07/16/2014)
2014-07-28	4	GENERAL ORDER AND GUIDELINES FOR CIVIL CASES BEFORE JUDGE KETANJI BROWN JACKSON. The Court will hold the parties and counsel responsible for following these directives; failure to conform to this Order may, when appropriate, result in the imposition of sanctions. Signed by Judge Ketanji Brown Jackson on 07/28/2014. (lckbj1) (Entered: 07/28/2014)
2014-08-20	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General July 29, 2014. (Kanter, David) (Entered: 08/20/2014)
2014-08-20	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 8/4/2014. Answer due for ALL FEDERAL DEFENDANTS by 9/3/2014. (Kanter, David) (Entered: 08/20/2014)
2014-08-20	7	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES GEOLOGICAL SURVEY served on 8/3/2014 (Kanter, David) (Entered: 08/20/2014)
2014-09-03	8	Consent MOTION for Extension of Time to File Answer re 1 Complaint, by UNITED STATES GEOLOGICAL SURVEY (Attachments: # 1 Text of Proposed Order)(Interrante, John) (Entered: 09/03/2014)
2014-09-08		MINUTE ORDER granting, for good cause shown, 8 consent Motion for Extension of Time to Answer, nunc pro tunc to 9/3/2014. Defendant shall answer or otherwise respond to the Complaint by 10/3/2014. Signed by Judge Ketanji Brown Jackson on 09/08/2014. (lckbj1) (Entered: 09/08/2014)
2014-10-01	9	Consent MOTION for Extension of Time to File Answer re 1 Complaint, by UNITED STATES GEOLOGICAL SURVEY (Attachments: # 1 Text of Proposed Order)(Interrante, John) (Entered: 10/01/2014)
2014-10-02		MINUTE ORDER granting 9 Motion for Extension of Time to Answer. Defendant shall answer or otherwise respond to the complaint by 10/17/2014. Signed by Judge Ketanji Brown Jackson on 10/2/2014. (lckbj1) (Entered: 10/02/2014)
2014-10-02		Set/Reset Deadlines: Answer to the Complaint due by 10/17/2014, (hs) (Entered: 10/02/2014)
2014-10-17	10	ANSWER to Complaint by UNITED STATES GEOLOGICAL SURVEY.(Interrante, John) (Entered: 10/17/2014)
2014-10-28		MINUTE ORDER. Before the Court in this FOIA case are a complaint and an answer. It is hereby ORDERED that the parties shall promptly confer and file a joint proposed schedule for briefing or disclosure, by 11/11/2014. Signed by Judge Ketanji Brown Jackson on 10/2//2014. (lckbj1) (Entered: 10/28/2014)
2014-11-12	11	STATUS REPORT (Joint) by UNITED STATES GEOLOGICAL SURVEY. (Interrante, John) (Entered: 11/12/2014)
2014-11-14		MINUTE ORDER. On October 2, 2014, this Court ordered the parties to submit a joint proposed schedule for briefing or disclosure. The parties have responded by representing that they are in the process of negotiating over the documents at issue and have requested filing a further status report rather than a briefing schedule at this time. In light of the parties' attempts to resolve this matter entirely, or at least to narrow the issues before the Court, it is hereby ORDERED that the parties shall file a joint status report on or before December 11, 2014. Signed by Judge Ketanji Brown Jackson on 11/14/2014. (lckbj3, ) (Entered: 11/14/2014)
2014-12-11	12	STATUS REPORT (Joint) by UNITED STATES GEOLOGICAL SURVEY. (Interrante, John) (Entered: 12/11/2014)
2014-12-16		MINUTE ORDER. Based on the parties' representation in their 12 Joint Status Report, it is hereby ORDERED that the parties shall file a further status report by 1/16/2015, which shall include a proposed schedule for further proceedings if litigation is going to be necessary. Signed by Judge Ketanji Brown Jackson on 12/16/2014. (lckbj1) (Entered: 12/16/2014)
2015-01-16	13	NOTICE OF SUBSTITUTION OF COUNSEL by Joshua M. Kolsky on behalf of UNITED STATES GEOLOGICAL SURVEY Substituting for attorney John G. Interrante (Kolsky, Joshua) (Entered: 01/16/2015)
2015-01-16	14	STATUS REPORT by PAVEMENT COATINGS TECHNOLOGY COUNCIL. (Kanter, David) (Entered: 01/16/2015)
2015-01-20		MINUTE ORDER. Based on the parties' representation in their 14 Joint Status Report, it is hereby ORDERED that the parties shall file a further status report by 5/8/2015, which shall include a proposed schedule for further proceedings if litigation is going to be necessary. Signed by Judge Ketanji Brown Jackson on 1/20/2015. (lckbj1) (Entered: 01/20/2015)
2015-05-08	15	STATUS REPORT (JOINT) by PAVEMENT COATINGS TECHNOLOGY COUNCIL. (Kanter, David) (Entered: 05/08/2015)
2015-05-11		MINUTE ORDER. Based on the parties' representation in their 15 Joint Status Report, it is hereby ORDERED that the parties shall file a further status report by 7/24/2015, which shall include a proposed schedule for further proceedings if litigation is going to be necessary. Signed by Judge Ketanji Brown Jackson on 05/11/2014. (lckbj1) (Entered: 05/11/2015)
2015-05-11		Set/Reset Deadlines: Status Report due by 7/24/2015 (tj ) (Entered: 05/11/2015)
2015-07-24	16	STATUS REPORT (JOINT) by PAVEMENT COATINGS TECHNOLOGY COUNCIL. (Attachments: # 1 Supplement Proposed Scheduling Order)(Kanter, David) (Entered: 07/24/2015)
2015-09-18	17	Consent MOTION to enter previously submitted briefing schedule re 16 Status Report (Joint) by PAVEMENT COATINGS TECHNOLOGY COUNCIL (Attachments: # 1 Exhibit Exhibit 1 - Proposed Order)(Kanter, David) (Entered: 09/18/2015)
2015-09-23		MINUTE ORDER granting 17 Motion to Enter briefing schedule. Defendant's Motion for Summary Judgment is due by 11/23/2015. Plaintiff's Consolidated Opposition and Cross-Motion for Summary Judgment is due by 1/22/20165. Defendant's Consolidated Reply and Opposition to Plaintiff's Cross-Motion is due by 3/7/2016. Plaintiff's Reply in Support of Cross Motion is due by 4/6/2016. Signed by Judge Ketanji Brown Jackson on 09/23/2015. (lckbj1) Modified event title on 9/24/2015 (znmw). (Entered: 09/23/2015)
2015-11-19	18	Consent MOTION for Extension of Time to File Summary Judgment Motion by UNITED STATES GEOLOGICAL SURVEY (Attachments: # 1 Text of Proposed Order)(Kolsky, Joshua) (Entered: 11/19/2015)
2015-11-23		MINUTE ORDER granting, for good cause shown 18 Consent Motion for Extension of Time to File Summary Judgment Motion. It is hereby ORDERED that the briefing schedule in this matter is modified as follows: Defendant's Motion for Summary Judgment is due by 1/22/2016. Plaintiff's Consolidated Opposition and Cross-Motion for Summary Judgment is due by 3/22/2016. Defendant's Consolidated Reply and Opposition to Plaintiff's Cross-Motion is due by 5/6/2016. Plaintiff's Reply in Support of Cross Motion is due by 6/6/2016. Signed by Judge Ketanji Brown Jackson on 11/23/2015. (lckbj1) (Entered: 11/23/2015)
2016-01-20	19	Unopposed MOTION for Extension of Time to File Summary Judgment Motion by UNITED STATES GEOLOGICAL SURVEY (Attachments: # 1 Text of Proposed Order)(Kolsky, Joshua) (Entered: 01/20/2016)
2016-02-02		MINUTE ORDER granting, for good cause shown 19 Consent Motion for Extension of Time to File Summary Judgment Motion, nunc pro tunc. It is hereby ORDERED that the briefing schedule in this matter is modified as follows: Defendant's Motion for Summary Judgment is due by 2/2/2016. Plaintiff's Consolidated Opposition and Cross-Motion for Summary Judgment is due by 4/4/2016. Defendant's Consolidated Reply and Opposition to Plaintiff's Cross-Motion is due by 5/19/2016. Plaintiff's Reply in Support of Cross Motion is due by 6/206/2016. Signed by Judge Ketanji Brown Jackson on 2/2/2016. (lckbj1) (Entered: 02/02/2016)
2016-02-02	20	MOTION for Summary Judgment by UNITED STATES GEOLOGICAL SURVEY (Attachments: # 1 Declaration (Mahler), # 2 Declaration (Van Metre), # 3 Declaration (May), # 4 Exhibit (Vaughn Index), # 5 Text of Proposed Order)(Kolsky, Joshua) (Entered: 02/02/2016)
2016-03-30	21	Consent MOTION for Extension of Time to File Response/Reply and Cross-Motion for Summary Judgment by PAVEMENT COATINGS TECHNOLOGY COUNCIL (Attachments: # 1 Text of Proposed Order Scheduling Order)(Kanter, David) (Entered: 03/30/2016)
2016-04-05		MINUTE ORDER granting, for good cause shown, 21 Motion for Extension of Time to File Response re 20 Motion for Summary Judgment. It is hereby ORDERED that the briefing schedule in this matter is modified as follows: Plaintiff's Consolidated Opposition and Cross-Motion for Summary Judgment is due by 5/16/2016. Defendant's Consolidated Reply and Opposition to Plaintiff's Cross-Motion is due by 6/30/2016. Plaintiff's Reply in Support of Cross Motion is due by 8/2/2016. Signed by Judge Ketanji Brown Jackson on 04/05/2016. (lckbj1) (Entered: 04/05/2016)
2016-04-06		Set/Reset Deadlines: Reply to Cross Motion due by 8/2/2016. (gdf) (Entered: 04/06/2016)
2016-05-16	22	Joint CROSS MOTION for Summary Judgment by PAVEMENT COATINGS TECHNOLOGY COUNCIL (Attachments: # 1 Affidavit Declaration of Anne LeHuray, # 2 Text of Proposed Order Proposed Order)(Kanter, David) Modified on 5/17/2016 (jf). (Entered: 05/16/2016)
2016-05-17		NOTICE OF ERROR re 22 Motion for Summary Judgment; emailed to dkanter@smbtrials.com, cc'd 3 associated attorneys -- The PDF file you docketed contained errors: 1. Two-part docket entry, 2. Please refile document, 3. Same Document(s) using the (Entered: 05/17/2016)
2016-05-17	23	Memorandum in opposition to re 20 MOTION for Summary Judgment filed by PAVEMENT COATINGS TECHNOLOGY COUNCIL. (Attachments: # 1 Affidavit Declaration of Anne LeHuray, # 2 Text of Proposed Order Proposed Order)(Kanter, David) (Entered: 05/17/2016)
2016-06-27	24	Unopposed MOTION for Extension of Time to File Combined Summary Judgment Opposition-Reply by UNITED STATES GEOLOGICAL SURVEY (Attachments: # 1 Text of Proposed Order)(Kolsky, Joshua) (Entered: 06/27/2016)
2016-06-30		MINUTE ORDER granting, for good cause shown, 24 Unopposed Motion for Extension of Time to File Combined Summary Judgment Reply and Opposition to Cross-Motion for Summary Judgment. It is hereby ORDERED that Defendant shall file its consolidated reply in further support of its motion for summary judgment and opposition to Plaintiff's cross-motion for summary judgment on or before 7/21/2016. Signed by Judge Ketanji Brown Jackson on 06/30/2016. (lckbj1, ) (Entered: 06/30/2016)
2016-06-30		MINUTE ORDER. In the interest of judicial efficiency, and in light of the volume of documents at issue in the FOIA matter and the parties' corresponding need for additional time to complete summary judgment briefing, it is hereby ORDERED that this case is administratively STAYED until all dispositive motions have been fully briefed. It is FURTHER ORDERED that the following amended schedule shall govern briefing for the parties' remaining submissions (the deadlines with respect to which are not affected by the stay in this case): (1) As set forth in the minute order of 6/30/2016, Defendant's consolidated reply in further support of its motion for summary judgment and opposition to Plaintiff's cross-motion for summary judgment is due on or before 7/21/2016; and (2) Plaintiff's reply in further support of its cross-motion for summary judgment is due on or before 8/22/2016. The parties are on notice that the Court does not intend to grant any further motions for extensions of time to file any submissions related to dispositive motions, absent exceptional circumstances. Signed by Judge Ketanji Brown Jackson on 06/30/2016. (lckbj1) (Entered: 06/30/2016)
2016-07-01		Set/Reset Deadlines: Reply to Cross Motions due by 8/22/2016. Replies due by 7/21/2016. (tj) (Entered: 07/01/2016)
2016-07-21	25	Memorandum in opposition to re 22 Joint MOTION for Summary Judgment (Cross-Motion) and Opposition to Defendant's Motion for Summary Judgment filed by UNITED STATES GEOLOGICAL SURVEY. (Attachments: # 1 Declaration (Van Metre), # 2 Declaration (May))(Kolsky, Joshua) (Entered: 07/21/2016)
2016-07-21	26	REPLY to opposition to motion re 20 MOTION for Summary Judgment filed by UNITED STATES GEOLOGICAL SURVEY. (Attachments: # 1 Declaration (Van Metre), # 2 Declaration (May))(Kolsky, Joshua) (Entered: 07/21/2016)
2016-08-08	27	Consent MOTION for Leave to File its Statement of Material Facts Not in Dispute and its Response to Defendant's Statement of Material Facts Not in Dispute by PAVEMENT COATINGS TECHNOLOGY COUNCIL (Attachments: # 1 Exhibit EXHIBIT 1 TO MOTION, # 2 Exhibit EXHIBIT A TO EXHIBIT 1, # 3 Text of Proposed Order PROPOSED ORDER)(Kanter, David) (Entered: 08/08/2016)
2016-08-11		MINUTE ORDER granting Plaintiff's 27 Consent Motion for Leave to File Statement of Material Facts Not in Dispute and Response to Defendant's Statement of Material Facts Not in Dispute. Signed by Judge Ketanji Brown Jackson on 08/11/2016. (lckbj1) (Entered: 08/11/2016)
2016-08-11	28	Statement of Material Facts Not in Dispute and Response to Defendant's Statement of Facts Not in Dispute re 22 Joint MOTION for Summary Judgment (Cross-Motion) and Opposition to Defendant's Motion for Summary Judgment by PAVEMENT COATINGS TECHNOLOGY COUNCIL (Kanter, David) Modified on 8/12/2016 (jf). (Entered: 08/11/2016)
2016-08-11	29	RESPONSE re 20 MOTION for Summary Judgment Doc. 23 - omitted attachment: Plaintiff's Statement of Material Facts Not in Dispute and Response to Defendant's Statement of Facts Not in Dispute filed by PAVEMENT COATINGS TECHNOLOGY COUNCIL. (Kanter, David) (Entered: 08/11/2016)
2016-08-22	30	REPLY to opposition to motion re 22 Joint MOTION for Summary Judgment (Cross-Motion) and Opposition to Defendant's Motion for Summary Judgment (PLAINTIFF'S REPLY IN SUPPORT OF ITS CROSS-MOTION FOR SUMMARY JUDGMENT) filed by PAVEMENT COATINGS TECHNOLOGY COUNCIL. (Attachments: # 1 Declaration Supplemental Declaration of Anne LeHuray, PhD.)(Kanter, David) Modified event title on 8/23/2016 (znmw). (Entered: 08/22/2016)
2016-08-29	31	RESPONSE to Plaintiff's Statement of Material Facts Not in Dispute filed by UNITED STATES GEOLOGICAL SURVEY. (Attachments: # 1 Declaration)(Kolsky, Joshua) (Entered: 08/29/2016)
2017-01-13	32	NOTICE OF SUPPLEMENTAL AUTHORITY by PAVEMENT COATINGS TECHNOLOGY COUNCIL (Kanter, David) (Entered: 01/13/2017)
2018-12-18	33	NOTICE OF SUBSTITUTION OF COUNSEL by Paul Cirino on behalf of UNITED STATES GEOLOGICAL SURVEY Substituting for attorney Joshua M. Kolsky (Cirino, Paul) (Entered: 12/18/2018)
2019-11-01	34	MOTION for Telephone Status Conference by PAVEMENT COATINGS TECHNOLOGY COUNCIL (Attachments: # 1 Text of Proposed Order for telephonic status conf, # 2 Notice to Counsel/Party notice of filing)(Kanter, David) . (Entered: 11/01/2019)
2019-11-13	35	ORDER granting 20 Defendant's Motion for Summary Judgment; denying 22 Plaintiff's Cross Motion for Summary Judgment; finding as moot 34 Motion for Telephone Conference. Memorandum Opinion to be issued shortly, absent unforeseen circumstances. Signed by Judge Ketanji Brown Jackson on 11/13/2019. (lckbj2) (Entered: 11/13/2019)
2019-12-19	36	MEMORANDUM OPINION granting 20 Defendant's Motion for Summary Judgment and denying 22 Plaintiff's Cross Motion for Summary Judgment. Signed by Judge Ketanji Brown Jackson on 12/19/2019. (lckbj2) (Entered: 12/19/2019)
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