Case Detail

FOIA Project Annotation: Judge Richard Leon has ruled that the Office of Science and Technology Policy properly invoked Exemption 4 (confidential business information) and Exemption 5 (deliberative process privilege) to withhold records pertaining to the Agricultural Biotech Working Group and the cultivation of genetically engineered crops on national wildlife refuges. In responding to two requests from Public Employees for Environmental Responsibility, the agency disclosed about 100 pages with redactions. PEER argued that records sent to the agency by the trade association BIO concerning its internal advocacy strategy were not protected by Exemption 4 because BIO had not shown the information was generated by its for-profit members. Leon noted, however, that "whether BIO's for-profit members generated the information is irrelevant. The issue is whether BIO or its for-profit members have a commercial interest in the information. There is no doubt that both BIO and its members have a commercial interest in BIO's advocacy strategy, which is at the core of BIO's competitive value to itself and its members." Because the information had been submitted voluntarily, Leon pointed out that BIO need only show that it was the kind of information that was not customarily made public by the submitter. PEER questioned whether BIO had made the necessary showing, but Leon observed that "BIO's representation that the information concerns a 'recommendation for BIO's internal strategy' is sufficient to conclude that the information is confidential." PEER challenged the Exemption 5 withholding by arguing that the some of the material appeared to be factual. But Leon indicated that "information about the deliberative process that reveals what the agency is considering should still be exempt from disclosure, even if it could be characterized as 'facts.'" PEER also argued that, since the Working Group had no authority over the other agencies with which it was meeting, its discussions could hardly be considered deliberative. But Leon pointed out that "non-decision-makers can take part in the decision-making process either by providing recommendations or by debating at a lower level about what course of action to recommend."
Issues: Exemption 4, Exemption 5 - Privileges - Deliberative process privilege - Deliberative

Date Filed	Doc #	Docket Text
2011-09-01	1	COMPLAINT against OFFICE OF SCIENCE AND TECHNOLOGY POLICY ( Filing fee $ 350, receipt number 4616041876) filed by PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY. (Attachments: # 1 Civil Cover Sheet)(jf, ) (Entered: 09/06/2011)
2011-09-01		SUMMONS (3) Issued as to OFFICE OF SCIENCE AND TECHNOLOGY POLICY, U.S. Attorney and U.S. Attorney General (jf, ) (Entered: 09/06/2011)
2011-09-07	2	STANDING ORDER. Signed by Judge Richard J. Leon on 9/7/2011. (lcrjl1) (Entered: 09/07/2011)
2011-09-22	3	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 9/1/2011. Answer due for ALL FEDERAL DEFENDANTS by 10/1/2011. (Douglass, Kathryn) (Entered: 09/22/2011)
2011-09-22	4	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 09/07/2011. (Douglass, Kathryn) (Entered: 09/22/2011)
2011-10-03	5	ANSWER to 1 Complaint by OFFICE OF SCIENCE AND TECHNOLOGY POLICY.(Mead, Joseph) (Entered: 10/03/2011)
2011-11-10	6	MEET AND CONFER STATEMENT. (Attachments: # 1 Text of Proposed Order)(Mead, Joseph) (Entered: 11/10/2011)
2011-11-15	7	SCHEDULING ORDER: Defendant's Summary Judgment motion due by 1/20/2012. Plaintiff's Oppostion/Cross Motions due by 2/17/2012. Defendant's Response to Cross Motions due by 3/5/2012. Plaintiff's Reply to Cross Motions due by 3/19/2012, Signed by Judge Richard J. Leon on 11/13/2011. (hs) (Entered: 11/15/2011)
2012-01-20	8	MOTION for Summary Judgment by OFFICE OF SCIENCE AND TECHNOLOGY POLICY (Attachments: # 1 Declaration of Rachael Leonard, OSTP, # 2 Exhibit 1A - FOIA Request No. 11-18, # 3 Exhibit 1B - FOIA Request No. 11-32, # 4 Exhibit 1C - OSTP Letter Regarding to 11-32, # 5 Exhibit 1D - Vaughn Index, # 6 Declaration of Thomas Dilenge, BIO, # 7 Text of Proposed Order)(Mead, Joseph) (Entered: 01/20/2012)
2012-02-17	9	MOTION for Summary Judgment by PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY (Attachments: # 1 Statement of Facts, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Text of Proposed Order)(Douglass, Kathryn) (Entered: 02/17/2012)
2012-03-05	10	Memorandum in opposition to re 9 MOTION for Summary Judgment and combined reply brief filed by OFFICE OF SCIENCE AND TECHNOLOGY POLICY. (Attachments: # 1 Text of Proposed Order)(Mead, Joseph) (Entered: 03/05/2012)
2012-03-05	11	REPLY to opposition to motion re 8 MOTION for Summary Judgment and combined opposition to Plaintiff's MSJ filed by OFFICE OF SCIENCE AND TECHNOLOGY POLICY. (Mead, Joseph) (Entered: 03/05/2012)
2012-03-19	12	REPLY to opposition to motion re 8 MOTION for Summary Judgment filed by PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY. (Douglass, Kathryn) (Entered: 03/19/2012)
2012-03-19	13	Memorandum in opposition to re 8 MOTION for Summary Judgment filed by PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY. (See Docket Entry 12 to view document). (znmw, ) (Entered: 03/20/2012)
2012-08-01	14	MEMORANDUM OPINION. Signed by Judge Richard J. Leon on 7/30/2012. (kc ) (Entered: 08/01/2012)
2012-08-01	15	ORDER, For the reasons set forth in the Memorandum Opinion entered this 30th day of July, 2012, it is hereby, ORDERED that defendant's Motion for Summary Judgment 8 is GRANTED; and it is further ORDERED that the plaintiff's Motion for Summary Judgment 9 is DENIED; and it is further ORDERED that final judgmnent be entered for the defendant on all counts in the Complaint. SO ORDERED. Signed by Judge Richard J. Leon on 7/30/2012. (kc ) (Entered: 08/01/2012)
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