Case Detail

FOIA Project Annotation: A federal court in Virginia has ruled that the Department of State properly redacted emails exchanged between the White House and the State Department pertaining to the upcoming Paris Climate Change Conference under Exemption 5 (deliberative process privilege), although the court held that two redactions were factual and not protected by the privilege. Competitive Enterprise Institute requested records about communications between State and a group called Climate Interactive. By the time of the court's decision, only four documents redacted under Exemption 5 remained in dispute. Those emails were between the State Department's Special Envoy for Climate Change, a White House staffer, and the assistant director of the White House Office on Science and Technology Policy, and concerned several media articles. State contended the redactions reflected opinions pertaining to the articles, but CEI contended they were factual. The court first found the redactions were predecisional, noting that "the weight [these individuals] attributed to different scientific studies and their personal opinions about the credibility of those studies was instrumental in determining the sorts of policies the United States would propose during the Paris Conference and the specific actions it might seek that other countries take." CEI argued that the brevity of the redactions suggested that they were not deliberative, but the court pointed out that "the emails were exchanged between a group of government officials who were responsible for formulating U.S. climate policy, and various officials contributed their personal opinions on two apparently widely-read articles on that topic. Those redactions in which officials expressed their subjective thoughts are covered by the deliberative process privilege and therefore need not be disclosed." The court found two redactions were not deliberative. The court explained that "they are merely factual statements, which, at best, could be said to reflect peripherally on actual policy making; this is insufficient under Fourth Circuit case law to justify redacting them." Rejecting CEI's brevity argument, the court noted that "in preparing for an upcoming negotiation, high ranking government officials can logically be expected to write short emails containing sensitive information condensed into brief sentences. This brevity does not make those statements any less central to the formation of policy than longer statements."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Predecisional, Exemption 5 - Privileges - Deliberative process privilege - Deliberative

Date Filed	Doc #	Docket Text
2016-01-22	1	COMPLAINT against United States Department of State ( Filing fee $ 400, receipt number 14683056633.), filed by Competitive Enterprise Institute, Energy & Environment Legal Institute, Free Market Environment Law Clinic. (Attachments: # 1 Civil Cover Sheet, # 2 Receipt)(kgra, ) (Entered: 01/27/2016)
2016-01-22	2	Summons Issued as to United States Department of State, U.S. Attorney and U.S. Attorney General via certified mail. (kgra, ) (Entered: 01/27/2016)
2016-01-27	3	NOTICE of Appearance by Matthew Daniel Hardin on behalf of Competitive Enterprise Institute, Energy & Environment Legal Institute, Free Market Environment Law Clinic (Hardin, Matthew) (Entered: 01/27/2016)
2016-02-22	4	AFFIDAVIT/Proof of Service of Complaint and Summons by Competitive Enterprise Institute, Energy & Environment Legal Institute. (klau, ) (Entered: 02/25/2016)
2016-02-25	5	NOTICE of Appearance by David Moskowitz on behalf of United States Department of State (Moskowitz, David) (Entered: 02/25/2016)
2016-02-25	6	ANSWER to 1 Complaint, by United States Department of State.(Moskowitz, David) (Entered: 02/25/2016)
2016-02-26	7	SCHEDULING ORDER: Initial Pretrial Conference set for 3/23/2016 at 11:00 AM in Alexandria Courtroom 301 before Magistrate Judge Ivan D. Davis. Final Pretrial Conference set for 7/21/2016 at 10:00 AM in Alexandria Courtroom 701 before District Judge Anthony J Trenga. Discovery due by 7/15/2016. Signed by District Judge Anthony J Trenga on 2/26/2016. (Attachments: # 1 magistrate consent, # 2 pretrial notice) (jall) Modified on 7/7/2016 VACATED per order dated 7/5/16 (klau, ). (Entered: 02/26/2016)
2016-03-16	8	Joint Discovery Plan by United States Department of State.(Moskowitz, David) (Entered: 03/16/2016)
2016-03-23	9	Order Rule 16(b) Scheduling Order - Upon consideration of the representations made by the parties in their Joint Discovery Plan, the Court makes the following rulings: 1. All discovery shall be concluded by July 15,2016.2. Disclosures under Fed. R. Civ. P. 26(a)(1) and (2), notices of depositions,interrogatories, requests for documents and admissions, and answers thereto shall not be filed except on order of the court, or for use in a motion or at trial. 3. The parties' Joint Discovery Plan is approved and shall control discovery to the extent of its application unless further modified by the Court (SEE ORDER FOR FURTHER DETAILS). Signed by Magistrate Judge Ivan D. Davis on 03/23/2016. (wgar, ) (Entered: 03/23/2016)
2016-04-13	10	Joint Status Report by United States Department of State and Competitive Enterprise Institute, Energy & Environment Legal Institute, and Free Market Environmental Law Clinic (Moskowitz, David) Modified text on 4/14/2016 (klau, ). (Entered: 04/13/2016)
2016-06-27	11	Consent MOTION for Extension of Time to File Joint Status Report by United States Department of State. (Attachments: # 1 Proposed Order)(Barghaan, Dennis) (Entered: 06/27/2016)
2016-07-01	12	STATUS REPORT (Joint) by United States Department of State. (Attachments: # 1 Proposed Order)(Barghaan, Dennis) (Entered: 07/01/2016)
2016-07-05	13	ORDER granting 11 Motion for Extension; it is further ORDERED that, on or before July 1, 2016, the parties shall file a joint status report in the above-captioned action. Signed by District Judge Anthony J Trenga on 07/05/2016. (jlan) (Entered: 07/05/2016)
2016-07-05	14	ORDERED that defendant shall file and serve its Vaughn index and motion for summary judgment, with a memorandum in support of the motion, on or before August 17, 2016 (see order for further details). Signed by District Judge Anthony J Trenga on 07/05/2016. (jlan) (Entered: 07/05/2016)
2016-08-17	15	MOTION for Summary Judgment by United States Department of State. (Moskowitz, David) (Entered: 08/17/2016)
2016-08-17	16	Memorandum in Support re 15 MOTION for Summary Judgment filed by United States Department of State. (Attachments: # 1 Attachment A, Stein Declaration)(Moskowitz, David) (Entered: 08/17/2016)
2016-08-17	17	Notice of Hearing Date set for September 30,2016 re 15 MOTION for Summary Judgment (Moskowitz, David) (Entered: 08/17/2016)
2016-08-18		Set Deadlines as to 15 MOTION for Summary Judgment . Motion Hearing set for 9/30/2016 at 10:00 AM in Alexandria Courtroom 701 before District Judge Anthony J Trenga. (clar, ) (Entered: 08/18/2016)
2016-09-14	18	RESPONSE in Opposition re 15 MOTION for Summary Judgment filed by Competitive Enterprise Institute, Energy & Environment Legal Institute, Free Market Environment Law Clinic. (Mandelbaum, Chaim) (Entered: 09/14/2016)
2016-09-23	19	REPLY to Response to Motion re 15 MOTION for Summary Judgment filed by United States Department of State. (Attachments: # 1 Defendant's Attachment B, # 2 Defendant's Attachment C)(Moskowitz, David) (Entered: 09/23/2016)
2016-09-30	20	Minute Entry for proceedings held before District Judge Anthony J Trenga: Motion Hearing held on 9/30/2016 re 15 MOTION for Summary Judgment filed by United States Department of State. Appearances of Counsel for Pltf. and Deft. The documents in question have been reduced to only 4 documents. The matter argued and continued pending the Court's review of the 'In Camera' documents. The deft. is ordered to submit the documents 'In Camera' within 10 days. Order to follow. (Court Reporter R. Montgomery.) (jall) (Entered: 09/30/2016)
2016-09-30	21	ORDER as to Motion for Summary Judgment 15 by deft.: On Friday, September 30, 2016, the Court held a hearing on defendant's Motion for Summary Judgment [Doc. No. 15] (the "Motion"). Upon consideration of the Motion, the memoranda of law in support thereof and in opposition thereto, the arguments of counsel, and for the reasons stated in open court during the September 30, 2016 hearing, it is hereby ORDERED that defendant shall submit in camera and under seal, for ex parte review by the Court, unredacted copies of Documents C05975033, C0597043, C05975101, and C05975102 within ten (10) days of this Order; and it is further ORDERED that defendant's Motion is CONTINUED pending the Court's review of the documents that defendant shall submit to the Court. Signed by District Judge Anthony J Trenga on 9/30/2016. (jall) (Entered: 09/30/2016)
2016-10-07	22	NOTICE by United States Department of State Submission of Documents for In Camera Review (Moskowitz, David) (Entered: 10/07/2016)
2016-12-01	23	MEMORANDUM OPINION re Motion for Summary Judgment. Signed by District Judge Anthony J Trenga on 12/1/16. (klau, ) (Entered: 12/02/2016)
2016-12-01	24	ORDER that Defendant's 15 Motion for Summary Judgment be, and the same hereby is, GRANTED in part and DENIED in part. The Motion is DENIED to the extent of (1) the first only of the two redactions on page one of Document C05975043, an email from Trigg Talley dated October 4, 2015, 5:03 pm, and (2) the first sentence only of the redaction on page one of Document C05975102, an email from Donald Wuebbles dated November 12, 2015, 10:20 am. The Motion is otherwise GRANTED. ORDERED that Defendant shall provide Plaintiffs no later than December 12, 2016 copies of Documents C0597043 and C05975102 containing all redactions currently made in those documents except for the two redactions referenced herein. Signed by District Judge Anthony J Trenga on 12/1/16. (klau, ) (Entered: 12/02/2016)
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