Case Detail

FOIA Project Annotation: Judge Amy Berman Jackson has ruled that the Office of Science and Technology Policy has not yet justified its invocations of Exemption 5 (deliberative process privilege) to protect most of its guidance and recommendations on scientific integrity prepared for OSTP Director John Holdren. Jackson explained that an agency must show that records are both predecisional and deliberative to claim the privilege. But she pointed out that the plaintiff, Public Employees for Environmental Responsibility, "does not challenge that the redacted and withheld documents are predecisional. . .Instead, PEER argues that OSTP fails to meet its burden to establish that the redacted statements and withheld documents were deliberative in nature." Jackson used two cases to illustrate when an Exemption 5 claim was sufficient supported and when it was not. In Defenders of Wildlife v. U.S. Border Patrol, the agency failed to provide sufficient detail concerning its claim. By contrast, in People for the American Way Foundation v. National Park Service, the agency had provided sufficient information. Jackson noted that "here, OTSP's Vaughn index is more similar to the legally insufficient index in Defenders of Wildlife than to the legally sufficient index in National Park Service. Though OSTP provided information that was otherwise missing in Defenders of Wildlifeâ€"the originating component agency, the author, and the recipients of the documentsâ€"every declaration for why the document was redacted or withheld contains the same boilerplate language. . .In other words, it appears that OSTP did nothing more than copy and paste circular justifications throughout its seventy-nine page Vaughn index instead of providing the Court with the necessary level of information to determine whether the documents were properly withheld under Exemption 5. . .Without additional information regarding OSTP's decision to redact and withhold information, the Court does not have sufficient information to grant summary judgment in favor of either party at this time."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative

Date Filed	Doc #	Docket Text
2010-10-19	1	COMPLAINT against OFFICE OF SCIENCE AND TECHNOLOGY POLICY ( Filing fee $ 350, receipt number 4616033465) filed by PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY. (Attachments: # 1 Civil Cover Sheet)(jf, ) (Entered: 10/20/2010)
2010-10-19		SUMMONS (3) Issued as to OFFICE OF SCIENCE AND TECHNOLOGY POLICY, U.S. Attorney and U.S. Attorney General. (jf, ) (Entered: 10/20/2010)
2010-11-24	2	NOTICE of Appearance by Joseph Wilfred Mead on behalf of OFFICE OF SCIENCE AND TECHNOLOGY POLICY (Mead, Joseph) (Entered: 11/24/2010)
2010-11-24	3	ANSWER to 1 Complaint by OFFICE OF SCIENCE AND TECHNOLOGY POLICY.(Mead, Joseph) (Entered: 11/24/2010)
2010-11-29	4	STANDING ORDER signed by Judge Ricardo M. Urbina on 11/29/2010. Read the Standing Order carefully, it will govern this case. Failure to follow the Standing Order will result in sanctions. (tg, ) (Entered: 11/29/2010)
2010-11-30		MINUTE ORDER. It is hereby ordered that the parties shall file a joint status report on or before December 10, 2010 proposing deadlines to govern this litigation. Signed by Judge Ricardo M. Urbina on 11/30/10. (lcrmu2) (Entered: 11/30/2010)
2010-11-30		Set/Reset Deadlines: Joint Status Report due by 12/10/2010. (tg, ) (Entered: 11/30/2010)
2010-12-09	5	STATUS REPORT JOINT by OFFICE OF SCIENCE AND TECHNOLOGY POLICY. (Mead, Joseph) (Entered: 12/09/2010)
2010-12-09		MINUTE ORDER. It is hereby ordered that on or before March 1, 2011, the parties shall file a stipulation of dismissal or a joint status report specifying what areas of dispute remain and proposing deadlines to govern this litigation. Signed by Judge Ricardo M. Urbina on 12/9/10. (lcrmu2) (Entered: 12/09/2010)
2010-12-09		Set/Reset Deadlines: Stipulation of dismissal or joint status report due by 3/1/2011. (tg, ) (Entered: 12/13/2010)
2011-03-01	6	STATUS REPORT - JOINT by OFFICE OF SCIENCE AND TECHNOLOGY POLICY. (Mead, Joseph) (Entered: 03/01/2011)
2011-03-01		MINUTE ORDER. Upon review of the parties' 6 joint status report, it is hereby ordered that the defendant shall file its motion for summary judgment on or before March 18, 2011; and it is further ordered that the plaintiff shall file its response to the defendant's motion and its cross-motion for summary judgment on or before April 8, 2011; and it is ordered that the defendant shall file its opposition and reply, if any, on or before April 25, 2011; and it is further ordered that the plaintiff shall file its reply, if any, on or before May 9, 2011. Signed by Judge Ricardo M. Urbina on 3/1/11. (lcrmu2) (Entered: 03/01/2011)
2011-03-01		Set/Reset Deadlines: Defendant's summary judgment motions due by 3/18/2011. Plaintiff's response to motion for summary judgment and filing of cross-motion due by 4/8/2011. Defendant's Reply in support to its motion for summary judgment and opposition to cross-motion due by 4/25/2011. Plaintiff's reply, if any, to cross motion due by 5/9/2011. (tg, ) (Entered: 03/01/2011)
2011-03-18	7	MOTION for Summary Judgment by OFFICE OF SCIENCE AND TECHNOLOGY POLICY (Attachments: # 1 Exhibit 1 - President's Memorandum, # 2 Declaration 2 - Leonard Declaration, # 3 Exhibit 2A - PEER's FOIA Request, # 4 Exhibit 2B - PEER's FOIA Appeal, # 5 Exhibit 2C - Index of Documents, # 6 Exhibit 3 - Director's Memorandum, # 7 Text of Proposed Order)(Mead, Joseph) (Entered: 03/18/2011)
2011-03-30		Case Randomly Reassigned to U.S. District Judge Amy Berman Jackson. Judge Ricardo M. Urbina no longer assigned to the case. (jeb, ) (Entered: 03/30/2011)
2011-04-05	8	MOTION for Summary Judgment by PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY (Attachments: # 1 Memorandum in Support Summary Judgment Memo and Opp to Defendant's Motion for Summary Judgment, # 2 Statement of Facts Facts Not in Dispute, # 3 Statement of Facts Facts in Dispute, # 4 Exhibit Exhibit 1 to Memo in Support of Summary Judgment, # 5 Exhibit Exhibit 2 to Memo in Support of Summary Judgment, # 6 Text of Proposed Order Proposed Order)(Dinerstein, Paula) Modified on 4/6/2011 to correct docket text (jf, ). (Entered: 04/05/2011)
2011-04-05	9	Memorandum in opposition to re 7 MOTION for Summary Judgment filed by PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY. (See Docket Entry 8 to view document) (jf, ) (Entered: 04/06/2011)
2011-04-25	10	REPLY to opposition to motion re 7 MOTION for Summary Judgment filed by OFFICE OF SCIENCE AND TECHNOLOGY POLICY. (Mead, Joseph) (Entered: 04/25/2011)
2011-04-25	11	Memorandum in opposition to re 8 MOTION for Summary Judgment (Duplicate of docket number 10) filed by OFFICE OF SCIENCE AND TECHNOLOGY POLICY. (Mead, Joseph) (Entered: 04/25/2011)
2011-05-06	12	Memorandum in opposition to re 7 MOTION for Summary Judgment of Defendant filed by PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY. (Dinerstein, Paula) (Entered: 05/06/2011)
2011-05-06	13	REPLY to opposition to motion re 8 MOTION for Summary Judgment filed by PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY. (Dinerstein, Paula) (Entered: 05/06/2011)
2011-11-08	14	ORDER denying 7 Motion for Summary Judgment; denying 8 Motion for Summary Judgment. Signed by Judge Amy Berman Jackson on 11/8/2011. (lcabj2) (Entered: 11/08/2011)
2011-11-08	15	MEMORANDUM OPINION. Signed by Judge Amy Berman Jackson on 11/8/2011. (lcabj2) (Entered: 11/08/2011)
2011-11-09		Set/Reset Deadlines: Defendant shall file an amended Vaughn Index by 12/9/2011 which complies with their legal obligations under FOIA; Defendant shall file supplemental affidavits or declarations demonstrating why the redactions and withholdings were proper by 12/9/2011; Defendant may file a renewed motion forSummary Judgment by 1/9/2012; Plaintiff may respond to any such motion and/or file a cross-motion for Summary Judgment by 2/6/2012. (jth) (Entered: 11/09/2011)
2011-11-22	16	Consent MOTION for Extension of Time to File Amended Vaughn Index and Supplemental Declaration by OFFICE OF SCIENCE AND TECHNOLOGY POLICY (Attachments: # 1 Text of Proposed Order)(Mead, Joseph) (Entered: 11/22/2011)
2011-11-22		MINUTE ORDER granting 16 Consent Motion for Extension of Time to File a Supplemental Declaration and Vaughn Index. The documents are due 12/23/2011. Signed by Judge Amy Berman Jackson on 11/22/2011. (MT) (Entered: 11/22/2011)
2011-11-29		Set/Reset Deadlines: Supplemental Declaration and Amended Vaughn Index are due by 12/23/2011. (jth) (Entered: 11/29/2011)
2011-12-23	17	Vaughn Index , Notice of Filing . (Attachments: # 1 Declaration Supplemental Leonard Declaration, # 2 Exhibit Amended Vaughn Index)(Mead, Joseph) (Entered: 12/23/2011)
2012-01-06	18	Second MOTION for Summary Judgment by OFFICE OF SCIENCE AND TECHNOLOGY POLICY (Attachments: # 1 Text of Proposed Order)(Mead, Joseph) (Entered: 01/06/2012)
2012-02-02	19	NOTICE of Appearance by Gregory Peter Dworkowitz on behalf of All Defendants (Dworkowitz, Gregory) (Entered: 02/02/2012)
2012-02-02	20	Joint MOTION for Extension of Time to File Summary Judgment Brief by OFFICE OF SCIENCE AND TECHNOLOGY POLICY, PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY (Attachments: # 1 Text of Proposed Order)(Dinerstein, Paula) (Entered: 02/02/2012)
2012-02-02		MINUTE ORDER granting 20 Joint Motion for Extension of Time to File Opposition and Cross Motion for Summary Judgment. The opposition and cross motion for summary judgment will be due 3/9/2012. Signed by Judge Amy Berman Jackson on 2/2/2012. (MT) (Entered: 02/02/2012)
2012-02-03		Set/Reset Deadlines: The Opposition to the Motion for Summary Judgment and Cross Motion are due by 3/9/2012. (jth) (Entered: 02/03/2012)
2012-03-09	21	NOTICE of Settlement by PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY (Dinerstein, Paula) (Entered: 03/09/2012)
2012-03-19		MINUTE ORDER re 21 Notice of Settlement, filed by PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY. The parties are directed to submit a report on the status of the implementation of the settlement agreement by 4/9/2012, if the matter has not been dismissed by that time. Signed by Judge Amy Berman Jackson on 3/19/2012. (MT) (Entered: 03/19/2012)
2012-03-19		Set/Reset Deadlines: Status Report due by 4/9/2012. (jth) (Entered: 03/19/2012)
2012-04-09	22	STIPULATION of Dismissal with Prejudice by OFFICE OF SCIENCE AND TECHNOLOGY POLICY, PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY. (Dinerstein, Paula) (Entered: 04/09/2012)
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