On August 21, the federal District Court for the District of Columbia upheld the decision by the National Oceanic and Atmospheric Administration (NOAA) to withhold NOAA climate scientists’ research documents from release to the conservative group Judicial Watch.

Judicial Watch sought to use the Freedom of Information Act (FOIA) – which allows citizens to request copies of government documents – to obtain NOAA scientists’ emails, drafts, and peer review comments regarding a June 2015 paper published in Science.  This paper, sometimes referred to as the “Hiatus Paper,” found that recent ocean surface temperature increases were greater than some other studies had indicated, and that there had been no “hiatus” in ocean warming as some have argued.  Judicial Watch’s president claimed that the requested NOAA documents “will show that the Obama administration put politics before science to advance global warming alarmism.”

NOAA produced some of the documents Judicial Watch requested, but withheld others, arguing that they were protected under the “deliberative process privilege.”

This deliberative process privilege allows for the denial of a FOIA request if it can be shown the requested government documents involve materials that are “predecisional,” meaning written as part of the decisionmaking process, and “deliberative,” meaning involving consultative give-and-take.  The rationale for this privilege is to safeguard preliminary documents that, if they were released, would chill candid collaboration and open debate conducted before a final decision is made.

The deliberative process privilege was initially developed to protect agency policymaking materials but, over the years, it has also been applied to protect agency scientific research with the understanding that the free exchange of ideas is just as important in scientific research as it is in policymaking.  (See, e.g., Formaldehyde Inst. v. Dep’t of Health and Human Servs., 889 F.2d 1118 (D.C. Cir. 1989), which held that reviewers’ comments regarding an unpublished scientific study were protected under FOIA as deliberative material.)

In the present case, NOAA argued that the privilege exists to protect the sort of deliberative materials that are the heart of the scientific process.  “In pursuing a research objective, scientists may begin with only a rough idea, and then develop, test, and revise that idea as data is collected and interpreted.  Possible interpretations are generated and tested in part through candid debates and exchanges among peers.  Indeed, the exchange and debate among peers is the mechanism that allows NOAA to ensure its scientific products are robustly developed and accurately tested.”  NOAA December 15, 2016 Motion for Summary Judgment at 12 (internal citations omitted).  In withholding the documents, NOAA argued that it is “critical that this type of information be protected so as not to chill candid exchanges and debates, as well as to avoid the risk of confusing the public with preliminary or incomplete information.”  Id.

Judicial Watch claimed that the deliberative process privilege could not be applied to scientific materials, but the district court sided with NOAA, concluding that both the case law in the D.C. Circuit as well as the facts of the case showed that “drafts of the Hiatus Paper, internal deliberations, and peer reviewer comments thus fall within the scope of [FOIA] Exemption 5,” which includes the deliberative process privilege. August 21, 2017 Opinion at 3.

The district court also dismissed Judicial Watch’s claims that a February 2017 article in The Mail on Sunday, which involved claims from a former NOAA employee that certain data archiving protocols had not been completed for the Hiatus Paper, showed potential wrongdoing sufficient to overcome the privilege.  Judicial Watch “cites to a single article in a British tabloid reporting, based on a former employee’s allegation” which “does not meet th[e] narrow standard” necessary to show “nefarious government misconduct.”  Opinion at 4.  The district court noted that “[s]ince the very purpose of FOIA is to help uncover government misconduct, if any allegation of misconduct sufficed to pierce the deliberative process privilege, the exception would soon swallow the privilege whole.”  Id. at 3.

The case follows an inquiry by Rep. Lamar Smith (R-TX), who issued a Congressional subpoena in October 2015 for same NOAA documents underlying the Hiatus Paper.  Rep. Smith, chair of the House Science Committee, claimed that in the Hiatus Paper, NOAA “altered the data to get the results they needed to advance [the Obama] administration’s extreme climate change agenda.”  NOAA provided Rep. Smith copies of all of the study methodologies and data – the materials necessary to evaluate and replicate the study, which were already in the public domain – and produced about 100 non-scientist emails.  However, the agency steadfastly refused to produce the NOAA scientists’ internal drafts and peer review correspondence.  In a statement, NOAA explained that “the confidentiality of these communications among scientists is essential to frank discourse among scientists” and it “is a long-standing practice in the scientific community to protect the confidentiality of deliberative scientific discussions.”

The scientific community also spoke out against Rep. Smith’s requests; one letter, signed by eight major scientific societies, reiterated the importance of sharing study data and methodologies but criticized “broad inquiries [that] threaten to inhibit the free exchange of ideas across scientific disciplines.”  The societies’ letter also pointed out that other studies following the Hiatus Paper had evaluated the same issue using independent data sources, and that “[t]his is the way that science advances.”  (See here for a study that came up with the same results as the Hiatus Paper, and here for a study that came up with a different result.)

Judicial Watch’s FOIA case also is part of a larger trend by groups that dispute the scientific reality of climate change attempting to use FOIA or state open records laws to access publicly-funded climate scientists’ private correspondence, including cases in Arizona (currently on appeal) and Virginia.  Researchers in other fields – from biomedical researchers to environmental health scientists – have similarly been targeted under open records laws by hostile groups.  In light of these abuses, many jurisdictions have begun instituting protections for scientific research under open records laws, including most recently Rhode Island (effective June 27, 2017) and North Dakota (effective August 1, 2017).

Under the Federal Rules of Civil Procedure, Judicial Watch has 30 days to appeal the district court’s decision.

Lauren Kurtz is the Executive Director of the Climate Science Legal Defense Fund, which filed an amicus brief, joined by the American Meteorological Society and the Union of Concerned Scientists, in support of NOAA in this case.

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