The U.S. District Court in D.C. has ordered that the Office of Science and Technology Policy be subjected to discovery in a Freedom of Information Act (FOIA) case, a once in a blue moon type of event. (Competitive Enterprise Institute v. Office of Science and Technology Policy (U.S. District Court D.C. Civil No. 14-cv-01806 (APM), 5/9/16)
Pointing out that “discovery is rare” in FOIA cases, the district court goes on to outline the agency’s actions leading to its conclusion that “as it turns out, this is the rare case where discovery is warranted.” (Opinion p. 1)
The Competitive Enterprise Institute asked for documents relating to a posting on the White House website indicating a connection between “the ‘polar vortex’ and global warming.” ( p. 2) The agency in effect slow walked the identification of documents responsive to the CEI request.
In its initial response, it was only able to come up with eleven pages of records that it felt were responsive to the request. Only after the group filed an appeal did the agency look again and found 47 pages of the draft OSTP letter that the request had specifically identify. The agency cited Exemption 5 (internal agency predecisional documents) to justify withholding these additional pages. CEI sued to compel release and in its initial decision the court pointed out that the agency affidavits “left ‘two distinct impressions: (1) that there were only 47 draft pages of the OSTP Letter and (2) that only Executive Branch officials had reviewed the draft pages.’”
It then came to the court’s attention after its initial ruling granting the agency summary judgment that the agency had found more pages of the draft OSTP Letter and an outside climate scientist had been provided a copy of the draft so that she (Dr. Francis) could make comments to the agency. The new development now “left three distinct impressions: (1) that the Francis Draft was in substance similar to the final OSTP Letter; (2) that there were no more than 52 draft pages of the OSTP Letter; and (3) that the only person to receive a draft of the OSTP Letter outside of the Executive Branch was Dr. Francis.” (p. 3)
As the court now says, those three impressions also are mistaken. Further, “Defendant’s representations about the number of Francis Drafts in its possession and the circulation of drafts outside the agency also turned out to be inaccurate.” (p. 4) Once made aware of the slowly expanding number of documents the agency had located, the court on its own demanded that the agency “show cause” why the court should not reconsider the matter, including its initial order denying CEI’s request for discovery. This led to even more drafts of the document being uncovered by OSTP, which turned out to be the proverbial last straw.
Obviously irritated by the agency’s handling of this FOIA request, the court had this to say: “As the foregoing recitation demonstrates, Defendant’s representations that it conducted a reasonable search designed to locate all relevant records has proven to be inaccurate time and again…. Although Defendant has candidly acknowledged and apologized for the flaws in its search efforts, which the court appreciates, those expressions of regret come too late…. At some point the government’s inconsistent representations…must give way to the truth-seeking function of the adversarial process, including the tools available through discovery.” (pp. 5-6)
The White House’s OSTP now joins State Department (the Clinton email cases) in confronting the “rare” case of having to respond to discovery in an FOIA case. As this court explains, typically it will attribute good faith to the agency affidavits, which, after all, cannot be rebutted. But when a plaintiff “raises a sufficient question” as to the agency’s good faith in responding to a FOIA request, such as in this case, then discovery is warranted. So be it.