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 claiming records don’t exist when they do. The White House Office of Science & 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 on March 23 asking OSTP to explain why the Court should not impose sanctions on it, or permit discovery against it.
The Competitive Enterprise Institute (CEI) had requested 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 opening 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.
In a February 10, 2016 ruling, the judge, Amit P. Mehta, 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 released the draft that had been shared with Professor Francis, 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 the deliberative process privilege contained in FOIA’s Exemption 5 (5 U.S.C. § 552(b)(5)). (He distinguished Francis from neutral, unbiased agency consultants who can receive privileged communications under the “consultant corollary” to the deliberative process privilege.)
But OSTP’s claim that this was the only shared draft turned out to be false, as its counsel admitted when it finally released the draft shared with Francis on March 4. In a cover letter enclosing the draft, OSTP’s counsel also enclosed a draft shared with University of Michigan Professor Rosina Bierbaum (sharing which waived any privilege to keep the draft secret) and OSTP employee Peter Huybers.
In a March 4 letter enclosing both drafts, and unredacted versions of emails among White House and NASA employees about a video in which OSTP Director John Holdren claimed that global warming likely causes winter cold waves (previously discussed at this link), OSTP’s counsel wrote:
In the process of preparing … records in response to the Court’s decision, OSTP learned that Dr. Holdren sent to two other individuals the same five pages he sent to Dr. Francis; those individuals were: (1) Rosina Bierbaum, a professor and former dean at the University of Michigan School of Natural Resources and Environment; and (2) Peter Huybers, at the time a Senior Science Analyst at OSTP. Dr. Holdren has no recollection of receiving a response from Dr. Bierbaum, and no response from her was located in a search of his records. Dr. Huybers, by contrast, returned the draft with edits and comments.
This letter was not provided to the court, only to CEI, but the judge became aware of it nonetheless. (The letter was linked to in my prior blog post on March 19 and March 22, and in a widely read blog post by a third party that reproduced my blog post virtually in its entirety at Jeff Dunetz’s The Lid.)
Upon learning of this belated revelation, the judge was apparently quite displeased.
In his ruling this Wednesday, Judge Mehta wrote:
It has come to the court’s attention that by letter dated March 4, 2016 … Defendant Office of Science and Technology Policy (OSTP) provided to Plaintiff Competitive Enterprise Institute (CEI) the documents the court ordered disclosed…. The March 4 Letter also indicates that, in the course of preparing documents for disclosure, OSTP located two other drafts of the Holdren Letter, including one sent outside the agency to a professor at the University of Michigan School of Natural Resources and Environment.
In its Memorandum Opinion, the court denied Plaintiff’s request for discovery on the ground that Plaintiff had not demonstrated bad faith on the part of OSTP in conducting a reasonable search for documents…. The court also found that Plaintiff had not “shown through evidence that there is a factual dispute about the existence of other drafts that were shared outside the Executive Branch.”…
In light of OSTP’s admission in the March 4 Letter that it has discovered at least one additional draft of the Holdren Letter circulated outside the Executive Branch, OSTP is hereby ordered to show cause why, the court should not reconsider its denial of discovery in this case and/or impose other appropriate sanctions. OSTP is directed to respond to this Order to Show Cause on or before April 6, 2016.
The belatedly disclosed draft shared with Professor Bierbaum and Dr. Huybers contains three comments by Dr. Huybers. Huybers noted, among other things, that “the relative contribution from several different potential mechanisms [of Arctic amplification] remains a topic of debate,” and he argued that “there is generally more evidence and theoretical grounds for a showing of the westerlies in relation to Arctic amplification than for an increase in the meridional amplitude or meanders.”
The draft is the last document found in the March 4 release, which is available, beneath a cover letter, at this link.
This FOIA lawsuit arose out of a controversial video posted on the White House web site claiming that global warming causes more severe winter cold. In it, the director of the OSTP, John Holdren, claimed that a “growing body of evidence” showed that the “extreme cold being experienced by much of the United States” that winter would occur “with increasing frequency as global warming continues.” Holdren’s claim was questioned by scientists. (See, e.g., Jason Samenow, Scientists: Don’t make “extreme cold” centerpiece of global warming argument, Washington Post, Feb. 20, 2014 (citing the objection by five well-known climate scientists in Science magazine); Patrick J. Michaels, Hot Air About Cold Air, Jan. 16, 2014 (former state climatologist rejects Holdren’s claim).)
After CEI sent a request for correction of this statement, OSTP rejected this request, claiming that Holdren’s statement was his “personal opinion,” and that it thus did not constitute agency “information” subject to the Information Quality Act, which excludes “subjective opinions” from its reach.