1 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

JUDICIAL WATCH, INC., 

Plaintiff, 

v. Case No. 17-cv-1283 (EGS) 

U.S. DEPARTMENT OF COMMERCE, 

Defendant. 

MEMORANDUM OPINION 

 This case arises out of a Freedom of Information Act 

(“FOIA”), 5 U.S.C. § 552, request that Plaintiff Judicial Watch, 

Inc. (“Judicial Watch”) made to Defendant United States 

Department of Commerce’s (“Commerce”) National Oceanic and 

Atmospheric Administration (“NOAA”). Judicial Watch seeks 

records of communications between Thomas Karl, a NOAA scientist, 

and John Holdren, Director of the White House Office of Science 

and Technology Policy, from January 20, 2009, through January 

20, 2017. In March 2019, this Court, in response to the parties’ 

initial cross motions, denied Commerce’s Motion for Summary 

Judgment and held in abeyance Judicial Watch’s Motion for 

Summary Judgment1 in order to provide Commerce with the 

 

1 The Court granted Judicial Watch’s motion to the extent it 

sought a ruling that Commerce must provide a more detailed 

Vaughn Index, and denied Judicial Watch’s motion to the extent 

it sought a ruling that Commerce must provide the withheld 

information forthwith. See Order, ECF No. 20. 
2 

opportunity to supplement its declaration to satisfy the 

“foreseeable harm” standard set forth in the FOIA Improvement 

Act (“FIA”), Pub. L. No. 114-185, 130 Stat. 538. See Judicial 

Watch, Inc. v. Dep’t of Commerce, 375 F. Supp. 3d 93, 101 

(D.D.C. 2019). 

 Pending before the Court are the parties’ second crossmotions for summary judgment. Upon consideration of the motions, 

the oppositions and the replies thereto, the applicable law, the 

entire record, and for the reasons stated below, Commerce’s 

Renewed Motion for Summary Judgment is GRANTED, the portion of

Judicial Watch’s initial Motion for Summary Judgment that was 

held in abeyance is DENIED, and Judicial Watch’s Second Motion 

for Summary Judgment is DENIED. 

I. Background 

A. Factual Background 

The following facts are not in dispute. Judicial Watch 

submitted a FOIA request to NOAA on February 6, 2017, requesting 

“[a]ny and all records of communications between NOAA scientist 

Thomas Karl and Director of the Office of Science and Technology 

Policy at the White House John Holdren” between “January 20, 

2009 through January 20, 2017.” Compl., ECF No. 1 at 2 ¶ 2.2

 

2 When citing electronic filings throughout this Memorandum 

Opinion, the Court cites to the ECF header page number, not the 

original page number of the filed document.
3 

“NOAA confirmed that it received the request on February 8, 

2017, assigning the request Tracking Number DOC-NOAA-2017-

000580.” Id. at ¶ 7. Since this action has been pending, 

Commerce has “produced over 900 pages of records consisting of 

email communications between Thomas Karl and John Holdren . . . 

.” Pl.’s Mot., ECF No. 16-1 at 9. What remains at issue are 

Commerce’s redactions to a total of 48 pages. Def.’s Renewed 

Mot. for Summ. J., ECF No. 23 at 4. 

B. Procedural History 

On May 15, 2019, Commerce filed a Renewed Motion for 

Summary Judgment. See Def.’s Mot., ECF No. 23. Commerce 

submitted a third declaration of Mark H. Graff, NOAA’s FOIA 

Officer, to support its renewed motion for summary judgment, see

Third Decl. of Mark H. Graff (“Third Graff Decl.”), ECF No. 23-

2; as well as an updated Vaughn index, Def.’s Renewed Mot. for 

Summary J. (“Def.’s Mot.), Ex. 2, ECF No. 23-2. On June 11, 

2019, Judicial Watch filed a second Cross-Motion for Summary 

Judgment/Opposition challenging the redactions made by Commerce 

to certain pages of produced documents on the basis of Exemption 

5. Pl.’s Cross-Mot., ECF No. 25 at 9.3 Commerce filed its 

Reply/Opposition on July 15, 2019, see Def.’s Reply, ECF No. 26; 

 

3 Commerce also redacted personal information from the documents 

based on FOIA Exemption 6, but plaintiffs do not challenge 

Commerce’s reliance on that exemption. Pl.’s Opp’n, ECF No. 15 

at 9. 
4 

and on July 22, 2019, Judicial Watch filed its Rely, see Pl.’s 

Reply, ECF No, 28. The parties’ motions are now ripe for 

disposition. 

II. Legal Standards 

A. Summary Judgment 

FOIA cases are typically and appropriately decided on 

motions for summary judgment. Gold Anti–Trust Action Comm., Inc. 

v. Bd. of Governors of Fed. Reserve Sys., 762 F. Supp. 2d 123, 

130 (D.D.C 2011)(citations omitted). Summary judgment is 

warranted “if the movant shows [by affidavit or other admissible 

evidence] that there is no genuine dispute as to any material 

fact and the movant is entitled to judgment as a matter of law.” 

Fed. R. Civ. P. 56(a). A party opposing a summary judgment 

motion must show that a genuine factual issue exists by “(A) 

citing to particular parts of materials in the record . . . or 

(B) showing that the materials cited do not establish the 

absence . . . of a genuine dispute[.]” Fed. R. Civ. P. 56(c). 

Any factual assertions in the moving party's affidavits will be 

accepted as true unless the opposing party submits his own 

affidavits or other documentary evidence contradicting the 

assertion. See Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 

1992). However, “the inferences to be drawn from the underlying 

facts . . . must be viewed in the light most favorable to the 

party opposing the motion.” Matsushita Elec. Indus. Co. v. 
5 

Zenith Radio Corp., 475 U.S. 574, 587 (1986)(internal quotation 

marks omitted). 

An agency has the burden of demonstrating that “each 

document that falls within the class requested either has been 

produced, is unidentifiable, or is wholly [or partially] exempt 

from the Act's inspection requirements.” Goland v. CIA, 607 F.2d 

339, 352 (D.C. Cir. 1978) (internal citation and quotation 

omitted). In reviewing a summary judgment motion in the FOIA 

context, the court must conduct a de novo review of the record, 

see 5 U.S.C. § 552(a)(4)(B); but may rely on agency 

declarations. See SafeCard Servs. v. SEC, 926 F.2d 1197, 1200 

(D.C. Cir. 1991). Agency affidavits or declarations that are 

“relatively detailed and non-conclusory” are accorded “a 

presumption of good faith, which cannot be rebutted by purely 

speculative claims about the existence and discoverability of 

other documents.” Id. (internal citation and quotation marks 

omitted). 

B. FOIA Exemptions 

Congress enacted FOIA to “open up the workings of 

government to public scrutiny through the disclosure of 

government records.” Judicial Watch, Inc., 375 F. Supp. 3d at 97 

(quoting Stern v. FBI, 737 F.2d 84, 88 (D.C. Cir. 1984) 

(internal quotation marks and alterations omitted). Although the 

legislation is aimed toward “open[ness] . . . of government,” 
6 

id.; Congress acknowledged that “legitimate governmental and 

private interests could be harmed by release of certain types of 

information,” Critical Mass Energy Project v. Nuclear Regulatory 

Comm'n, 975 F.2d 871, 872 (D.C. Cir. 1992) (internal quotation 

marks and citations omitted). As such, pursuant to FOIA's nine 

exemptions, an agency may withhold requested information. 5 

U.S.C. § 552(b)(1)-(9). However, because FOIA established a 

strong presumption in favor of disclosure, requested material 

must be disclosed unless it falls squarely within one of the 

exemptions. See Burka v. U.S. Dep't of Health and Human Servs., 

87 F.3d 508, 515 (D.C. Cir. 1996). 

The agency bears the burden of justifying any withholding. 

See Bigwood v. U.S. Agency for Int'l Dev., 484 F. Supp. 2d 68, 

74 (D.D.C. 2007). “To enable the Court to determine whether 

documents properly were withheld, the agency must provide a 

detailed description of the information withheld through the 

submission of a so-called ‘Vaughn index,’ sufficiently detailed 

affidavits or declarations, or both.” Hussain v. U.S. Dep't 

of Homeland Sec., 674 F. Supp. 2d 260, 267 (D.D.C. 

2009)(citations omitted). Although there is no set formula for a 

Vaughn index, the agency must “disclos[e] as much information as 

possible without thwarting the exemption's purpose.” King v. 

Dep't of Justice, 830 F.2d 210, 224 (D.C. Cir. 1987). 

“Ultimately, an agency’s justification for invoking a FOIA 
7 

exemption is sufficient if it appears logical or plausible.” 

Judicial Watch, Inc. v. U.S. Dep't of Def., 715 F.3d 937, 941 

(D.C. Cir. 2013) (internal quotation marks omitted). 

III. Analysis 

Commerce argues that it properly invoked Exemption 5 for 

its withholdings for two reasons: (1) the redactions in the 

documents are protected under the deliberative process 

privilege; and (2) the documents in their entirety are protected 

under the presidential communications privilege. Def.’s Mot., 

ECF No. 23 at 6-7. Both of these privileges fall under Exemption 

5. See Loving v. Dep't of Def., 550 F.3d 32, 37 (D.C. Cir. 

2008). As explained below, the Court finds that the redactions 

in the documents are protected under the deliberative process 

privilege. Accordingly, the Court need not address whether the 

documents in their entirety are protected by the presidential 

communications privilege. 

A. Exemption 5 

As the Court of Appeals for the District of Columbia 

Circuit (“D.C. Circuit”) has explained, 

FOIA Exemption 5 exempts from public 

disclosure “inter-agency or intra-agency 

memorandums or letters which would not be 

available by law to a party other than an 

agency in litigation with the agency.” 5 

U.S.C. § 552(b)(5). Exemption 5 incorporates 

the privileges that the Government may claim 

when litigating against a private party, 

including the governmental attorney-client 
8 

and attorney work product privileges, the 

presidential communications privilege, the 

state secrets privilege, and the deliberative 

process privilege. See Baker & Hostetler LLP 

v. Department of Commerce, 473 F.3d 312, 321 

(D.C. Cir. 2006). 

. . . . This “privilege rests on the obvious 

realization that officials will not 

communicate candidly among themselves if each 

remark is a potential item of discovery and 

front page news.” Department of the Interior 

v. Klamath Water Users Protective Association,

532 U.S. 1, 8–9, 121 S. Ct. 1060, 149 L. Ed. 

2d 87 (2001). The privilege serves to preserve 

the “open and frank discussion” necessary for 

effective agency decisionmaking. Id. at 9, 121 

S. Ct. 1060. The privilege protects “documents 

reflecting advisory opinions, recommendations 

and deliberations comprising part of a process 

by which governmental decisions and policies 

are formulated.” NLRB v. Sears, Roebuck & Co.,

421 U.S. 132, 150, 95 S. Ct. 1504, 44 L. Ed. 

2d 29 (1975) (internal quotation marks 

omitted). As we have stated, officials “should 

be judged by what they decided, not for 

matters they considered before making up their 

minds.” Russell v. Department of the Air 

Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982)

(brackets omitted). 

To qualify for the deliberative process 

privilege, [the information] must be both predecisional and deliberative. See Coastal 

States Gas Corp. v. Department of Energy, 617 

F.2d 854, 866 (D.C. Cir. 1980). “[The 

information] is ‘predecisional’ if it 

precedes, in temporal sequence, the ‘decision’ 

to which it relates.” Senate of the 

Commonwealth of Puerto Rico v. Department of 

Justice, 823 F.2d 574, 585 (D.C. Cir. 1987); 

see also Coastal States, 617 F.2d at 866 (predecisional documents are “generated before the 

adoption of an agency policy”). And [the 

information] is deliberative if it is “a part 

of the agency give-and-take—of the 

deliberative process—by which the decision 
9 

itself is made.” Vaughn v. Rosen, 523 F.2d 

1136, 1144 (D.C. Cir. 1975); see also Coastal 

States, 617 F.2d at 866. 

Abtew v. U.S. Department of Homeland Sec., 808 F.3d 895, 898-99 

(D.C. Cir. 2015). The deliberative process privilege is to be 

construed “as narrowly as consistent with efficient Government 

operation.” United States v. Philip Morris, 218 F.R.D. 312, 315 

(D.D.C. 2003)(quoting Taxation with Representation Fund v. IRS, 

646 F.2d 666, 667 (D.C. Cir. 1981)). “[W]hen claiming the 

deliberative process privilege, the agency must, at the very 

least, explain in its Vaughn Indices and/or declarations, for 

each contested document withheld in part or in full, (1) what 

deliberative process is involved, (2) the role played by the 

documents [at] issue in the course of that process, and (3) the 

nature of the decisionmaking authority vested in the office or 

person issuing the disputed document[s], and the positions in 

the chain of command of the parties to the documents.” Ctr. for 

Biological Diversity (“CBD”) v. U.S. Envtl. Prot. Agency, 279 F. 

Supp. 3d 121, 147 (D.D.C. 2017)(internal quotation marks and 

citations omitted). 

In 2016, Congress passed the FIA, which, relevant to this 

case, codified the “foreseeable harm” standard established by 

the Department of Justice in 2009 and used to defend an agency's 

decision to withhold information. See S. Rep. No. 114-4, at 3 & 

n.8 (2015) (citing Office of Att'y Gen., Memorandum for Heads 
10 

of Executive Departments and Agencies, Subject: Freedom of 

Information Act (Mar. 19, 2009) ); S. Rep. No. 114-4, at 7– 

8. Under the “foreseeable harm” standard, the Department of 

Justice would “defend an agency's denial of a FOIA request 

only if (1) the agency reasonably fores[aw] that disclosure 

would harm an interest protected by one of [FOIA's] statutory 

exemptions, or (2) disclosure was prohibited by law.” U.S. 

Dep't of Justice, Guide to the Freedom of Information 

Act 25 (2009 ed.), https://www.justice.gov/archive/ 

oip/foia_guide09/procedural-requirements.pdf (internal 

quotation marks omitted). 

Accordingly, as amended by the FIA, the statutory text now 

provides that: “An agency shall ... withhold information under 

this section only if ... (I) the agency reasonably foresees that 

disclosure would harm an interest protected by [a FOIA] 

exemption; or (II) disclosure is prohibited by law[.]” 5 U.S.C. 

§ 552(a)(8)(A). Stated differently, “pursuant to the [FIA], an 

agency must release a record—even if it falls within a FOIA 

exemption—if releasing the record would not reasonably harm an 

exemption—protected interest” and if the law does not prohibit 

the disclosure. Rosenberg v. U.S. Dep't of Def., 342 F. Supp. 3d 

62, 72 (D.D.C. 2018) (citation omitted). 

To satisfy the foreseeable harm standard, “an agency must 

identify specific harms to the relevant protected interests that 
11 

it can reasonably foresee would actually ensue from disclosure 

of the withheld materials and connect the harms in a meaningful 

way to the information withheld.” Ctr. for Investigative 

Reporting v. U.S. Customs and Border Prot. 436 F. Supp. 3d 90, 

105 (D.D.C. 2019) (cleaned up). “[G]eneric, across-the-board 

articulations of harm that largely repeat statements already 

found in the Vaughn Index,” id. at 106 (internal quotation marks 

and citation omitted); and “boilerplate” or “nebulous 

articulations of harm are insufficient,” Judicial Watch, Inc. v. 

U.S. Dep’t of Justice (Judicial Watch II), No. CV 17-0832 (CKK), 

2019 WL 4644029, at *5 (D.D.C. Sept. 24, 1999). Instead, the 

agency needs to provide “context or insight into the specific 

decision-making processes or deliberations at issue, and how 

they in particular would be harmed by disclosure.” Ctr. for 

Investigative Reporting, 436 F.Supp.3d at 107 (quoting Judicial 

Watch II, 2019 WL 4644029, at *5). In satisfying this burden, 

“agencies may take a categorial approach and group together like 

records . . . but when using a categorical approach, an agency 

must provide more than nearly identical boilerplate statements 

and generic and nebulous articulations of harm.” Id. at 106 

(internal quotation marks and citations omitted). 
12 

 1. Deliberative Process Privilege4

 Commerce has submitted declarations of Mr. Graff to explain 

why the withheld information falls within the deliberative 

process privilege. In his first declaration, Mr. Graff states 

that 

NOAA withheld portions of emails discussing 

drafts of future scientific papers including 

the National Climate Assessment, substantive 

discussions of draft reports, deliberative 

discussions of the scientific interpretation 

of solar wind data, an opinion-based 

discussion of postures and/or impressions on 

a CATO Report and how to calculate global 

temperature data, deliberations on climate 

change misdirection and draft talking points, 

opinions-based deliberations on a ranking 

exercise and scientific news articles, 

deliberations and opinions for a draft 

Memorandum for the President, and similar predecisional, deliberative conversations that 

were shared in the open and frank exchange of 

ideas, drafts, and postures between agencies. 

Graff Decl., ECF No. 14-2 at 3 ¶ 12. Mr. Graff states that “the 

information was predecisional because NOAA was still considering 

its position on certain environmental reports, a draft climate 

and annual report, draft talking points, ranking exercises, 

discussions and opinions for a draft Memorandum intended for the 

President of the United States, and substantive responses and 

 

4 The Court did not address whether the withholdings fall within 

the scope of the deliberative process privilege in its prior 

Opinion in this case. Accordingly, the Court considers the 

declarations and Vaugh indices attached to Commerce’s initial 

summary judgment briefing as well as Judicial Watch’s 

opposition. 
13 

scientific interpretations of environmental data.” Id. at 3-4 ¶ 

13. Mr. Graff states that 

the information was deliberative because it 

reflects the internal comments, discussions, 

and recommendations of various members of 

NOAA’s staff, The National Environmental 

Satellite, Data, and Information Service 

(NESDIS), and/or White House Office of 

Science and Technology Policy (OSTP) regarding 

the interpretation of scientific data, 

responses to environmental reports, and 

drafting reports and scientific papers. 

Id. at 4 ¶ 14. The second Vaughn index describes the 

predecisional and deliberative nature of each piece of withheld 

information. See Second Vaughn Index, ECF No. 17-3 at 1-30. 

The Court has carefully reviewed Mr. Graff’s declaration 

and the second Vaughn index. Mr. Graff’s explanation and the 

information in the second Vaughn index are sufficient to 

demonstrate that the withheld information qualifies for the 

deliberative process privilege. Specifically, for each piece of 

information withheld under this privilege, Commerce has 

explained in detail the predecisional and deliberative nature of 

the withheld information. See Abtew, 808 F.3d at 898-99. Mr. 

Graff’s declaration and the second Vaughn index taken together 

describe the deliberative process involved and the role played 

by the withheld information. See CBD, 279 F. Supp. 3d at 147. 

Finally, Mr. Graff’s declaration and the second Vaughn index 

taken together explain the “nature of the decisionmaking 
14 

authority” and the “chain of command” of the persons involved in 

the email chains. Id. 

Judicial Watch’s objections—that Mr. Graff’s initial 

“declaration and [the initial] Vaughn Index do not adequately 

support its claims of deliberative process privilege” because 

“each of the withheld emails in question appears either: 1) 

deliberative but not likely to chill future government decisionmaking if released; 2) not genuinely deliberative, but just 

conducting government business; or 3) not deliberative of a 

government policy decision, but only about application of 

existing policy,” Pl.’s Consol. Br. in Opp’n to Mot. for Summ. 

J. and in Supp. of Cross Mot. Summ. J., ECF No. 16-1 at 10; are 

unpersuasive in light of the detailed information provided in 

the second and third Vaughn indices and Mr. Graff’s initial and 

third declarations. Accordingly, the Court in its discretion 

declines to conduct an in camera review of the withheld 

material. Mobley v. Cent. Intelligence Agency, 806 F.3d 568, 588 

(D.C. Cir. 2015). 

 2. Foreseeable Harm 

Commerce has submitted the Third Declaration of Mr. Graff 

to explain why, in Commerce’s opinion, release of the 

information being withheld under Exemption 5 would cause 

reasonably foreseeable harm to the interests protected by that 
15 

Exemption. Commerce divides the withheld information into four 

primary categories: 

i. a draft analysis of the lab work conducted 

by NOAA’s Environmental Science Research 

Lab, or other NOAA scientists, 

ii. discussions with OSTP about the different 

scientific interpretation and impacts of 

environmental data sets, 

iii. discussions with OSTP regarding a draft 

Memorandum analyzing either a Cato 

Institute memorandum or a Wall Street 

Journal article, and 

iv. communications between NOAA and OSTP 

deliberating the content and presentation 

of press releases and talking points. 

Third Graff Decl., ECF No. 23-2 at 3-4 ¶ 12. 

Mr. Graff states that disclosure of the information being 

withheld in the first three categories would pose the same 

foreseeable harm. Mr. Graff states that agency scientists “have 

expressed increasing fear and trepidation in deliberating the 

merits, methodologies, conclusions, and peer review of their 

data sets, indicating they feel ‘under siege’ for the work they 

perform.” Id. at 4 ¶ 13. He further states that, due to the risk 

of disclosure, agency scientists “cannot engage in meaningful 

scientific debate and collaboration in order to make quality 

agency decisions with respect to environmental science and data 

regarding climate change as their internal discussions and 

debate are at risk of public criticism and critique.” Id. at 4 ¶ 
16 

14. Mr. Graff states that agency scientists “do not want to 

appear to contradict each other, challenge their colleagues’ 

conclusions, or take a position opposing other government 

scientists or agencies” because they “fear . . . their debate 

being misconstrued, and having their position publicly aired as 

discordant with other scientific conclusions by agency personnel 

or the scientific community.” Id. Noting that one “scientist 

left the agency in part due to the contentious public scrutiny 

of his scientific deliberations,” Mr. Graff states that the 

“fear of public criticism for personal scientific viewpoints 

directly impedes NOAA’s ability to make informed, well-debated 

agency decisions regarding environmental data sets.” Id. at 4 ¶ 

15. 

 Mr. Graff’s explanation is sufficient to satisfy the 

foreseeable harm standard. The explanation does not repeat the 

justifications for withholding the information provided in the 

third Vaughn index, but rather describes the specific harms to 

the deliberative process that would result from disclosure of 

the information. See Ctr. for Investigative Reporting, 436 F. 

Supp. 3d at 107. Commerce has taken a categorical approach, but 

the harms Commerce has articulated are far from “generic and 

nebulous.” Furthermore, these harms are connected in a 

meaningful way to the information being withheld because of the 

predecisional and deliberative nature of the information. 
17 

With regard to the fourth category of withheld material, 

Mr. Graff states that disclosure “would impede the agency’s 

ability to internally discuss postures, proposed responses, and 

to debate relative merits of different possible agency positions 

before making official agency statements to the press.” Third 

Graff Decl., ECF No. 23-2 at 5 ¶ 16. Furthermore, “if draft 

press talking points are released, and the draft differs from 

what was actually released to the press, it would cause 

significant public confusion—incorrectly implicating an agency 

change of posture, improperly suggesting deceit or concealment 

if draft topics are ultimately not discussed with the press, or 

incorrectly implying disagreement on agency positions while the 

wording, posture, and topics are still being formed.” Id.

Finally, “if disclosed, those who debate the press statements 

and talking points will not be candid in their reviews, 

diminishing the quality and vigor of inter- and intra-agency 

discussions before agency statements are made to the press.” Id. 

at 5 ¶ 17. 

Mr. Graff’s explanation for this category is also 

sufficient to satisfy the foreseeable harm standard. As with the 

first three categories of withheld information, the explanation 

does not repeat the justifications for withholding the 

information provided in the Vaughn index, but rather describes 

the specific harms to the deliberative process that would result 
18 

from disclosure of the information. See Ctr. for Investigative 

Reporting, 436 F. Supp. 3d at 107. And again, while Commerce has 

taken a categorical approach, the harms Commerce has articulated 

are far from “generic and nebulous.” Furthermore, these harms 

are connected in a meaningful way to the information being 

withheld because of the predecisional and deliberative nature of 

the information. 

Judicial Watch acknowledges that the deliberative process 

privilege protects: (1) “preserving frank discussions between 

subordinates and superiors”; and (2) “preventing public 

confusion”; but argues that Commerce has not met its burden of 

showing foreseeable harm to those protected interests because 

Commerce’s “real reason” for withholding the information is fear 

of “agency embarrassment” and “painting the agency in a negative 

light” which “Congress has eliminated as lawful grounds for 

withholding under FIA.” Pl.’s Consol. Br. in Opp’n to Def.’s 

Renewed Mot. for Summ. J. and in Supp. of Pl.’s Second CrossMot. for Summ. J. (“Pl.’s Opp’n and Cross Mot.”), ECF No. 24 at 

8 (citing 162 CONG. REC. H3714, 114th Cong. 2nd Sess., Vol. 162 

No. 93, Statement of Congressman Meadows (June 13, 2016) (noting 

that pursuant to the FIA, “agencies may no longer withhold 

information that is embarrassing or could possibly paint the 

agency in a negative light simply because an exemption may 

technically apply. This will go a long way toward getting rid of 
19 

the withhold-it-because-you-want-to exemption.”).5 Judicial Watch 

also argues that there is no foreseeable harm of confusion to 

the public because “[e]veryone already knows that scientists can 

and do occasionally disagree.” Id. at 9. Finally, Judicial Watch 

disputes that the “public confusion” interest justifies 

withholding the fourth category of information apparently 

because the fact that government scientists occasionally 

disagree with each other is not ground for invoking the “public 

confusion” interest. Id. at 12-14. 

The Court finds Judicial Watch’s arguments unpersuasive. 

Commerce has met its burden of articulating the foreseeable harm 

disclosure of the information would have on the ability of 

agency scientists to “engage in meaningful scientific debate and 

collaboration” to arrive at “quality agency decisions.” Third 

Graff Decl., ECF No. 23-2 at 4 ¶ 14. This is entirely 

distinguishable from withholding information that could 

embarrass an agency or paint it in a negative light. Similarly, 

Judicial Watch’s argument regarding the fourth category of 

withheld materials is non responsive to Commerce’s argument. 

 

5 The Court rejects Judicial Watch’s contention that Mr. Graff’s 

declaration “describes a culture of fear and secrecy within 

NOAA,” Pl.’s Opp’n and Cross Mot.”), ECF No. 24 at 9-11; and its 

argument based on that assertion as Judicial Watch has clearly 

mischaracterized Mr. Graff’s third declaration. 
20 

B. Segregability 

 Under FOIA, “even if [the] agency establishes an exemption, 

it must nonetheless disclose all reasonably segregable, 

nonexempt portions of the requested record(s).” Roth v. U.S. 

Dept. of Justice, 642 F. 3d 1161, 1167 (D.C. Cir. 2001) 

(internal quotation marks and citation omitted). “[I]t has long 

been the rule in this Circuit that non-exempt portions of a 

document must be disclosed unless they are inextricably 

intertwined with exempt portions.” Wilderness Soc'y v. U.S. 

Dep't of Interior, 344 F. Supp. 2d 1, 18 (D.D.C. 2004) (quoting 

Mead Data Cent., Inc. v. U.S. Dep't of Air Force, 566 F. 2d 242, 

260 (D.C. Cir. 1977)). Thus, an agency must provide “a detailed 

justification and not just conclusory statements to demonstrate 

that all reasonably segregable information has been released.” 

Valfells v. CIA, 717 F. Supp. 2d 110, 120 (D.D.C. 2010) 

(internal quotation marks and citation omitted). 

 However, “[a]gencies are entitled to a presumption that 

they complied with the obligation to disclose reasonably 

segregable material,” which must be overcome by some “quantum of 

evidence” from the requester. Sussman v. U.S. Marshals Serv., 

494 F. 3d 1106, 1117 (D.C. Cir. 2007). Commerce represents that 

it has “carefully reviewed each responsive record on a page-bypage and line-by-line basis in an attempt to identify reasonable 

segregable, non-exempt information” and has determined that 
21 

there no more reasonably segregable information and that all 

segregable information has been produced. Def.’s Mot, ECF No. 23 

at 10; Third Graff Decl., ECF No. 23-2 at 6 ¶¶ 20-23. Judicial 

Watch, citing persuasive authority outside of this circuit, 

asserts that Commerce’s “declaration offers only boilerplate 

language about a segregability review.” Pl.’s Consol. Br. in 

Opp’n to Mot. for Summ. J. and in Supp. of Cross Mot. Summ. J., 

ECF No. 16-1 at 21. 

 Defendants have submitted thoroughly detailed declarations, 

in combination with supporting documentation, which support and 

satisfy FOIA's segregability requirement. See, e.g., Johnson,

310 F. 3d at 776; Loving v. Dep't of Defense, 550 F.3d 32, 41 

(D.C. Cir. 2008). Contrary to Judicial Watch’s assertion of 

boilerplate language, Commerce has met its segregability burden 

by submitting attestations of its declarant that the records 

were reviewed “on a page by page and line by line basis in an 

attempt to identify reasonably segregable, non-exempt 

information.” Third Graff Decl., ECF No. 23-2 at 6 ¶ 20; see 

also Taylor Energy Co., LLC v. U.S. Dep’t of Interior, 271 F. 

Supp. 3d 73, 97 (D.D.C. 2017). Furthermore, Judicial Watch has 

provided no basis to question the good-faith presumption 

afforded to these representations. See Johnson, 310 F. 3d at 

776. Accordingly, the Court concludes that Commerce has 

satisfied its segregability obligations under FOIA.
22 

IV. Conclusion 

 For the reasons stated, Commerce’s Renewed Motion for 

Summary Judgment is GRANTED, the portion of Judicial Watch’s

initial Motion for Summary Judgment that was held in abeyance is

DENIED, and Judicial Watch’s Second Motion for Summary Judgment 

is DENIED. An appropriate order accompanies this Memorandum 

Opinion. 

SO ORDERED. 

Signed: Emmet G. Sullivan 

United States District Judge 

 November 25, 2020