Federal District Court Orders Discovery Against White House Agency in a FOIA Case
By Susan McGuire Smith, FedSmith, May 10, 2016
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.’”
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