Judges don’t like it when someone makes a claim that turns out not to be true in order to get a lawsuit dismissed, such as by claiming records don’t exist when they do. The White House Office of Science and Technology Policy (OSTP) failed to disclose the existence of some records in response to a Freedom of Information Act request until after a federal judge had already ruled in the case. When the judge found out, he issued an Order to Show Cause yesterday asking OSTP to explain why the Court should not impose sanctions on it, or permit discovery against it.
CEI had sought drafts of OSTP’s letter denying CEI’s request for correction of inaccurate claims that global warming causes winter cold spells (which violated the Information Quality Act, according to CEI). When OSTP did not produce them, CEI brought a Freedom of Information Act lawsuit in 2014 seeking the drafts.
OSTP claimed in its first brief in January 2015 that it properly withheld such drafts as privileged, since they had not been shared with people outside the agency, which would waive any privilege. Then, in March 2015, it admitted this claim was inaccurate, conceding in its reply brief that one draft had been shared with a person outside the agency (Rutgers Professor Jennifer Francis). But it claimed that this was the only example of a draft shared with someone outside the agency, and that even this draft remained privileged because Francis was functionally more like a neutral agency consultant than an outsider.
The judge accepted the agency’s contention that this was the only shared draft, and denied CEI’s request for discovery based on the agency’s curious belated disclosure of the draft’s existence in a ruling on February 10, 2016.
But he ordered the draft shared with Professor Francis released because sharing it with her, a non-agency employee with a strong personal interest in the dispute, prevented the draft from being just an “intra-agency” communication that could qualify for privilege under FOIA’s deliberative process exemption (5 U.S.C. § 552(b)(5)). (He distinguished Francis from neutral, unbiased agency consultants who can be a party to privileged communications under the “consultant corollary” to FOIA’s (b)(5) exemption for deliberative process privilege.)