Case Detail

FOIA Project Annotation: Judge Emmet Sullivan has become the second district court judge in the D.C. Circuit to reject an agency's Exemption 5 (privileges) claims because the agency had not shown that it considered whether or not disclosure would cause foreseeable harm under the standard added by the 2016 amendments. In a case brought by Judicial Watch against the National Oceanic and Atmospheric Administration for communications between Thomas Karl, a NOAA scientist, and John Holden, who served as director of the Office of Science and Technology Policy during the Obama administration, the agency disclosed 900 pages of emails, a large portion of which were partially redacted under Exemption 5. By the time Sullivan ruled, Judicial Watch was contesting only 48 pages. Judicial Watch argued that NOAA had failed to show the existence of any foreseeable harm from disclosing the disputed pages. Sullivan pointed out that Judge Amit Mehta was the only other D.C. Circuit district court judge to consider the foreseeable harm standard in Rosenberg v. Dept of Defense, 342 F. Supp. 3d 62 (D.D.C. 2018). Sullivan observed that in Rosenberg Mehta had found that the agency "had failed to explain how the disclosures of information withheld under Exemption 5 would harm the agency's deliberative process. The court noted that the foreseeable harm requirement does not go 'so far as to require the government to identify harm likely to result from disclosure of each of its Exemption 5 withholdings' but the government at least needed to do more than 'perfunctorily state that disclosure of all the withheld information â€" regardless of category or substance â€" would jeopardize the free exchange of information.'" Finding Rosenberg persuasive, Sullivan noted that "the text and purpose of the Act both support a heightened standard for an agency's withholdings under Exemption 5. The text of the Act states an agency may only withhold information if 'the agency reasonably foresees that disclosure would harm an interest protected by [a FOIA] exemption.' In other words, even if an exemption applies, an agency must release the document unless doing so would reasonably harm an exemption-protected interest. The purpose of the [2016 amendments were] to establish a 'presumption of openness,' and its passing was based on the recognition that 'from the beginning, agencies have taken advantage of these exemptions to withhold any information that might technically fit.' To that end, Congress sought to require an agency to 'first determine whether [it] could reasonably foresee an actual harm' before the agency claims an exemption. Furthermore, an 'inquiry into whether an agency has reasonably foreseen a specific, identifiable har that would be caused by a disclosure would require the ability to articulate both the nature of the harm and the link between the specified harm and specific information contained in the material withheld.'" NOAA had submitted two affidavits supporting its use of Exemption 5 by telling Sullivan that disclosure would chill candid discussions. Sullivan noted that "these 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.'" He observed that "if 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." Sullivan explained that "however, in enacting the legislation, 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." He observed that "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." Sullivan told the agency it could provide supplemental affidavits to attempt to satisfy the foreseeable harm standard.
Issues: Exemption 5 - Privileges

Date Filed	Doc #	Docket Text
2017-06-29	1	COMPLAINT against JUDICIAL WATCH, INC. ( Filing fee $ 400 receipt number 0090-5012633) filed by JUDICIAL WATCH, INC.. (Attachments: # 1 Civil Cover Sheet, # 2 Summons USOA, # 3 Summons USAG, # 4 Summons DoC)(Fedeli, Chris) (Entered: 06/29/2017)
2017-06-29	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by JUDICIAL WATCH, INC. (Fedeli, Chris) (Entered: 06/29/2017)
2017-06-29		Case Assigned to Judge Emmet G. Sullivan. (jd) (Entered: 06/29/2017)
2017-06-29	3	SUMMONS (3) Issued Electronically as to U.S. DEPARTMENT OF COMMERCE, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Consent Forms)(jd) (Entered: 06/29/2017)
2017-07-14	4	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 7/10/2017. ( Answer due for ALL FEDERAL DEFENDANTS by 8/9/2017.), RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 7/13/2017., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. DEPARTMENT OF COMMERCE served on 7/10/2017 (Attachments: # 1 Declaration of Cristina Rotaru)(Fedeli, Chris) (Entered: 07/14/2017)
2017-07-19	5	STANDING ORDER: The parties are directed to read the attached Standing Order Governing Civil Cases Before Judge Emmet G. Sullivan in its entirety upon receipt. The parties are hereby ORDERED to comply with the directives in the attached Standing Order.Signed by Judge Emmet G. Sullivan on 7/19/2017.(Attachments: # 1 Exhibit) (lcegs1) (Entered: 07/19/2017)
2017-08-09	6	NOTICE of Appearance by Marsha Wellknown Yee on behalf of U.S. DEPARTMENT OF COMMERCE (Yee, Marsha) (Entered: 08/09/2017)
2017-08-09	7	NOTICE Regarding Correct Date of Service by U.S. DEPARTMENT OF COMMERCE (Yee, Marsha) (Entered: 08/09/2017)
2017-08-14	8	Consent MOTION for Extension of Time to File Defendant's Response to Plaintiff's Complaint by U.S. DEPARTMENT OF COMMERCE (Attachments: # 1 Text of Proposed Order)(Yee, Marsha) (Entered: 08/14/2017)
2017-08-31	9	ANSWER to Complaint by U.S. DEPARTMENT OF COMMERCE.(Yee, Marsha) (Entered: 08/31/2017)
2017-09-06		MINUTE ORDER granting 8 defendant's consent motion for extension of time to file a response to plaintiff's complaint. Signed by Judge Emmet G. Sullivan on 9/6/2017. (lcegs3) (Entered: 09/06/2017)
2017-09-11		MINUTE ORDER. Plaintiff brings this action pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. The parties are directed to meet and confer and propose a joint scheduling order for further proceedings in this case by no later than October 12, 2017. The parties' joint proposed scheduling order shall address the following: (1) The status of plaintiff's FOIA request; (2) The anticipated number of documents responsive to plaintiff's FOIA request; (3) The anticipated date(s) for release of documents responsive to plaintiff's FOIA request; (4) Whether a motion for an Open America stay is likely in this case; (5) Whether a Vaughn index will be required in this case; (6) Whether this case would benefit from referral to a magistrate judge or the District Court Mediation Program for purposes of settlement; and (7) A proposed briefing schedule for dispositive motions, if applicable. If the parties are unable to agree on a joint recommendation, the joint proposed scheduling order shall include each party's individual recommendations. Signed by Judge Emmet G. Sullivan on 9/11/2017. (lcegs3) (Entered: 09/11/2017)
2017-09-12		Set/Reset Deadlines: Joint Proposed Scheduling Order due by 10/12/2017. (mac) (Entered: 09/12/2017)
2017-10-12	10	PROPOSED BRIEFING SCHEDULE by U.S. DEPARTMENT OF COMMERCE. (Attachments: # 1 Text of Proposed Order)(Yee, Marsha) (Entered: 10/12/2017)
2017-10-16		MINUTE ORDER in view of 10 parties' joint proposed schedule, it is hereby ordered that the parties shall file a Joint Status Report by January 30, 2018 that shall either propose a filing schedule for dispositive motions or request additional time for the parties to try to resolve any issues without the Court's involvement. Signed by Judge Emmet G. Sullivan on 10/16/2017. (lcegs3) (Entered: 10/16/2017)
2017-10-16		Set/Reset Deadlines: Joint Status Report due by 1/30/2018. (mac) (Entered: 10/16/2017)
2018-01-30	11	Joint STATUS REPORT by U.S. DEPARTMENT OF COMMERCE. (Attachments: # 1 Text of Proposed Order)(Yee, Marsha) (Entered: 01/30/2018)
2018-01-30		MINUTE ORDER in view of 11 parties' joint status report, it is hereby ordered that the parties shall file a Joint Status Report by March 6, 2018 that shall either propose a filing schedule for dispositive motions or request additional time for the parties to try to resolve any issues without the Court's involvement. Signed by Judge Emmet G. Sullivan on 1/30/2018. (lcegs3) (Entered: 01/30/2018)
2018-01-31		Set/Reset Deadlines: Joint Status Report due by 3/6/2018. (mac) (Entered: 01/31/2018)
2018-03-06	12	Joint STATUS REPORT by U.S. DEPARTMENT OF COMMERCE. (Attachments: # 1 Text of Proposed Order)(Yee, Marsha) (Entered: 03/06/2018)
2018-03-27	13	MOTION for Briefing Schedule by JUDICIAL WATCH, INC. (Attachments: # 1 Text of Proposed Order)(Fedeli, Chris) (Entered: 03/27/2018)
2018-03-30		MINUTE ORDER granting 13 plaintiff's unopposed motion for a briefing schedule. Parties shall therefore adhere to the following briefing schedule: defendant's motion for summary judgment shall be filed by May 23, 2018; plaintiff's opposition and any cross-motion for summary judgment shall be filed by June 25, 2018; defendants opposition and reply shall be filed by July 26, 2018; and Plaintiffs reply shall be filed by August 16, 2018. Signed by Judge Emmet G. Sullivan on 3/30/2018. (lcegs3) (Entered: 03/30/2018)
2018-03-30		Set/Reset Deadlines: Defendant's Motion For Summary Judgment due by 5/23/2018. Plaintiff's Opposition And Any Cross-Motion For Summary Judgment due by 6/25/2018. Defendants Opposition And Reply due by 7/26/2018. Plaintiffs Reply due by 8/16/2018. (mac) (Entered: 03/30/2018)
2018-05-23	14	MOTION for Summary Judgment by U.S. DEPARTMENT OF COMMERCE (Attachments: # 1 Statement of Facts, # 2 Declaration Mark H. Graff, # 3 Text of Proposed Order)(Yee, Marsha) (Entered: 05/23/2018)
2018-06-20	15	Memorandum in opposition to re 14 MOTION for Summary Judgment filed by JUDICIAL WATCH, INC.. (Attachments: # 1 Statement of Facts)(Fedeli, Chris) (Entered: 06/20/2018)
2018-06-20	16	Cross MOTION for Summary Judgment by JUDICIAL WATCH, INC. (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Text of Proposed Order)(Fedeli, Chris) (Entered: 06/20/2018)
2018-07-26	17	REPLY to opposition to motion re 14 MOTION for Summary Judgment filed by U.S. DEPARTMENT OF COMMERCE. (Attachments: # 1 Def.'s Resps. to Pl.'s SMF, # 2 Second Decl. of Mark H. Graff, # 3 Exhibit 3 (Revised Vaughn Index), # 4 Exhibit 4)(Yee, Marsha) (Entered: 07/26/2018)
2018-07-26	18	Memorandum in opposition to re 16 Cross MOTION for Summary Judgment filed by U.S. DEPARTMENT OF COMMERCE. (Attachments: # 1 Def.'s Resps. to Pl.'s SMF, # 2 Second Decl. of Mark H. Graff, # 3 Exhibit 3 (Revised Vaughn Index), # 4 Exhibit 4, # 5 Text of Proposed Order)(Yee, Marsha) (Entered: 07/26/2018)
2018-08-09	19	REPLY to opposition to motion re 16 Cross MOTION for Summary Judgment filed by JUDICIAL WATCH, INC.. (Fedeli, Chris) (Entered: 08/09/2018)
2019-03-22	20	ORDER DENYING 14 Commerce's motion for summary judgment and GRANTING in PART, DENYING in PART, and HOLDING IN ABEYANCE 16 Judicial Watch's motion for summary judgment. Signed by Judge Emmet G. Sullivan on 3/22/2019. (lcegs2) (Entered: 03/22/2019)
2019-03-22	21	MEMORANDUM OPINION. Signed by Judge Emmet G. Sullivan on 3/22/2019. (lcegs2) (Entered: 03/22/2019)
2019-03-25		Set/Reset Deadlines: Proposed Schedule due by 4/12/2019. (mac) (Entered: 03/25/2019)
2019-04-10	22	PROPOSED BRIEFING SCHEDULE (JOINT) by U.S. DEPARTMENT OF COMMERCE. (Yee, Marsha) (Entered: 04/10/2019)
2019-04-12		MINUTE ORDER. Upon consideration of 22 the parties' joint proposed briefing schedule the following schedule shall govern these proceedings: Defendant shall file its renewed motion for summary judgment by no later than May 15, 2019. Plaintiff shall file its opposition and renewed cross-motion for summary judgment by no later than June 14, 2019. Defendant shall file its reply, and opposition to plaintiff's motion by no later than July 15, 2019. Plaintiff shall file its reply by no later than August 12, 2019. Signed by Judge Emmet G. Sullivan on 4/12/2019 (lcegs2) (Entered: 04/12/2019)
2019-04-15		Set/Reset Deadlines: Defendant Renewed Motion For Summary Judgment due by 5/15/2019. Plaintiff Opposition And Renewed Cross-Motion For Summary Judgment due by 6/14/2019. Defendant Reply And Opposition To Plaintiff's Motion due by 7/15/2019. Plaintiff Reply due by 8/12/2019. (mac) (Entered: 04/15/2019)
2019-05-15	23	Renewed MOTION for Summary Judgment by U.S. DEPARTMENT OF COMMERCE (Attachments: # 1 Statement of Facts, # 2 Third Graff Decl. and Exhibits 1-3, # 3 Text of Proposed Order)(Yee, Marsha) Modified on 5/16/2019 (jf). (Entered: 05/15/2019)
2019-06-11	24	Memorandum in opposition to re 23 MOTION for Summary Judgment filed by JUDICIAL WATCH, INC.. (Attachments: # 1 Statement of Facts)(Fedeli, Chris) (Entered: 06/11/2019)
2019-06-11	25	Second MOTION for Summary Judgment by JUDICIAL WATCH, INC. (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Text of Proposed Order)(Fedeli, Chris) (Entered: 06/11/2019)
2019-07-15	26	REPLY to opposition to motion re 23 MOTION for Summary Judgment filed by U.S. DEPARTMENT OF COMMERCE. (Attachments: # 1 Def.'s Resps. to Pl's Statement of Material Facts, # 2 Text of Proposed Order)(Yee, Marsha) (Entered: 07/15/2019)
2019-07-15	27	Memorandum in opposition to re 25 Second MOTION for Summary Judgment filed by U.S. DEPARTMENT OF COMMERCE. (Attachments: # 1 Def.'s Resps. to Pl.'s Statement of Material Facts, # 2 Text of Proposed Order)(Yee, Marsha) (Entered: 07/15/2019)
2019-07-22	28	REPLY to opposition to motion re 25 Second MOTION for Summary Judgment filed by JUDICIAL WATCH, INC.. (Fedeli, Chris) (Entered: 07/22/2019)
2020-06-03	29	NOTICE of Appearance by Paul J. Orfanedes on behalf of JUDICIAL WATCH, INC. (Orfanedes, Paul) (Entered: 06/03/2020)
2020-06-04	30	NOTICE OF WITHDRAWAL OF APPEARANCE as to JUDICIAL WATCH, INC.. Attorney Chris Fedeli terminated. (Fedeli, Chris) (Entered: 06/04/2020)
2020-08-05	31	NOTICE of Appearance by Lauren M. Burke on behalf of JUDICIAL WATCH, INC. (Burke, Lauren) (Main Document 31 replaced on 8/6/2020) (zjf). (Entered: 08/05/2020)
2020-11-25	32	ORDER granting 23 Motion for Summary Judgment; denying 25 Motion for Summary Judgment. Signed by Judge Emmet G. Sullivan on 11/25/2020. (lcegs1) (Entered: 11/25/2020)
2020-11-25	33	MEMORANDUM OPINION. Signed by Judge Emmet G. Sullivan on 11/25/2020. (lcegs1) (Entered: 11/25/2020)
Hide Docket Events