Judicial Watch v. Dep't of the Navy, No. 12-172, 2014 WL 1006659 (D.D.C. Mar. 17, 2014) (Brown, J.)

Judicial Watch v. Dep't of the Navy, No. 12-172, 2014 WL 1006659 (D.D.C. Mar. 17, 2014) (Brown, J.)

Re: Request for records concerning contract for renewable energy

Disposition: Denying defendant's motion for summary judgment; denying plaintiff's cross-motion for summary judgment

• Exemption 5, Deliberative Process Privilege:  The court "concludes that the signatories' names were not properly withheld under Exemption 5."  The court first notes that it "is confronted with the odd situation in which a plaintiff has prophylactically attacked a FOIA exemption that the defendant ignored when it moved for summary judgment."  The court explains that "[b]ecause courts usually 'requir[e] all FOIA exemptions to be raised at the same time in the original district court FOIA proceedings,' . . . it is not clear that the Exemption 5 argument in this case is even properly before the Court."  However, the court finds that "out of an abundance of caution, the Court will address it."  Regarding the merits of the exemption, the court finds that "[d]efendant has not carried its burden of showing how the names implicate any deliberative process that may have gone into the creation of the Memorandum as a whole."  The court holds that "[t]hese names themselves are indisputably 'factual.'"
   
• Exemption 6:  The court "den[ies] Defendants' summary judgment motion and permit[s] Defendant to provide more information in the form of a revised motion and memorandum accompanied by additional declarations or affidavits, if it wishes to do so."  The court finds that "the names at the end of the Memorandum satisfy Exemption 6's 'similar file' categorization."  However, the court "concludes that Defendant has thus far failed to carry its burden of demonstrating a substantial privacy interest in the signatories' names."  The court explains that "while Defendant might be able to show that the signatories have a substantial privacy interest in avoiding the harassment or hostility that could result from the release of their names, Defendant has thus far failed to establish that the disclosure of the signatories' names would even potentially lead to such an outcome, and the Court will not speculate on the bases for Defendant's bald contention that there will be such adverse consequences."