About that FOIA Lawsuit Over Scientific Integrity

In October of 2010, Public Employees for Environmental Responsibility (PEER) filed a lawsuit against the Office of Science and Technology Policy (OSTP) over a Freedom of Information Act (FOIA) request.  The request and lawsuit concerned documents detailing the process of developing recommendations about agency scientific integrity policies.  The case continues (need PACER account to access documents, fee charged for documents downloaded over a certain threshold)

Last week the D.C. District Court ruled on both sides’ motions for summary judgment.  Both motions were denied, in part because one of OSTP’s filing in the case was insufficient, and the court could not rule on important legal claims.

But the ruling (need RECAP browser add-on to access for free) does provide some additional information.

  • In its initial FOIA response, OSTP produced 150 pages of documents, with some of those pages redacted in part or in full (page 1).
  • OSTP maintains that some of the responsive information was properly withheld based on two exemptions to FOIA: privileged agency or interagency information (stuff you couldn’t legally obtain if you were in a non-FOIA lawsuit with the agency), and information about individuals that would constitute an invasion of their privacy.
  • PEER is not disputing any documents withheld over the privacy exemption.  They are arguing that OSTP has not sufficiently demonstrated that the withheld information was of a deliberative quality that would qualify for the privileged exemption.
  • The insufficiency of OSTP’s justification for withholding comes down to the boilerplate language used throughout the document.

OSTP has until December 9 to provide a more detailed, non-boilerplate explanation for why redacted or withheld materials qualified for privileged status.  PEER will then have the option to file again for summary judgment.  If they do, that motion and any OSTP response will have to be filed in January and February of 2012, respectively.  If a judicial decision on those motions takes as much time then as it did the first time around, we won’t have a decision on this until September of 2012.

In the meantime, agency draft policies are due to OSTP by December 17, making the OSTP responsiveness to the initial request look non-transparent (arguably undercutting one of the goals of this whole endeavor) and a delaying tactic.  Given how much delay has already happened on this issue, I can’t be surprised.