Cole v. Copan, No. 19-cv-1070 (DLF)

485 F.Supp.3d 243

David COLE, Plaintiff,

v.Walter G. COPAN, Director, National Institute for Standards and Technology, et al., Defendants.

No. 19-cv-1070 (DLF)

United States District Court, District of Columbia.

Signed August 27, 2020

Mick G. Harrison, Pro Hac Vice, Bloomington, IN, John M. Clifford, Clifford & Garde LLP, Washington, DC, for Plaintiff.

Paul Cirino, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

DABNEY L. FRIEDRICH, United States District Judge David Cole brings this lawsuit against the National Institute for Standards and Technology and its director, Walter G. Copan (collectively, NIST), under the Freedom of Information Act, 5 U.S.C. § 552 et seq. (FOIA). Cole claims that NIST violated FOIA by refusing to disclose, in response to his FOIA request, records of eight interviews concerning the emergency response to the September 11, 2001 terrorist attacks. Compl., Dkt. 1. Before the Court is the defendants’ Motion for Summary Judgment, Dkt. 9, and Cole's Cross-Motion for Summary Judgment and for Discovery in the Alternative, Dkt. 12. For the following reasons, NIST's motion is granted in part and denied in part, and Cole's motion is denied in part.

I. BACKGROUND¹

On September 11, 2001, 2,749 people died in an attack on the World Trade Center; among the dead were 421 emergency responders affiliated with the New York City Police Department (NYPD), the Fire Department of New York (FDNY), and other state and city agencies, as well as private volunteers. Defs.’ Statement of Facts, Dkt. 9-2, ¶ 1. In 2002, NIST began investigating the collapse of the World Trade Center buildings under the authority of the National Construction Safety Team Act, 15 U.S.C. § 7301 et seq. , a statute that empowers NIST to investigate major building failures. Id. ¶¶ 2–4. Pursuant to an agreement with New York City and the National Commission on Terrorist Acts Upon the United States (the 9/11 Commission), NIST performed 116 first-person interviews with emergency responders, including 68 FDNY firefighters, 25 NYPD officers, 15 employees of the Port Authority of New York and New Jersey, and eight volunteers. Id. ¶¶ 7–8.

In these interviews, the responders described their experiences and answered questions posed by NIST officials and the 9/11 Commission concerning emergency operations, building issues, and safety problems. Id. ¶ 10. Although portions of these interviews concerned the eyewitnesses’ firsthand observations of the collapse of the towers, the focus of the interviews was the emergency response and the evacuation procedures. Fletcher Decl., Dkt. 9-3, ¶¶ 13–14; Pl.’s Statement of Facts, Dkt. 12-2, ¶ 18. NIST later published multiple reports that cited and quoted from notes taken during these interviews. Defs.’ Statement of Facts ¶¶ 11–12. On January 26, 2010, then-Director of NIST Patrick Gallagher also issued a series of findings, pursuant to section 7(c) of the National Construction Safety Team Act, concluding that the disclosure of notes or other materials documenting NIST's interviews with FDNY, NYPD, and other New York City employees "would inhibit the voluntary provision of that type of information in this and future investigations." Id. ¶¶ 14–19.

On November 2, 2011, David Cole, a private citizen, submitted a FOIA request to NIST for "[a]udio recordings of Interviews, and other records corresponding to footnote #’s 368 through 389" in one of the NIST reports (NC STAR 1-8) examining the emergency response operations on 9/11. Correspondence, Dkt. 12-3, at 1; Pl.’s Statement of Facts ¶ 7. The 22 footnotes referenced in Cole's request cite an August 2002 safety report by McKinsey & Company as well as nine different interviews (identified as nos. 1, 3, 19, 45, 54, 110402, 2110402, 2041604, and 1041704) that occurred between fall 2002 and spring 2004. Defs.’ Statement of Facts ¶¶ 20–22. The agency searched desks, boxes, file cabinets, computers, storage areas, a repository, and its audiotape collection for the records Cole requested. See Fletcher Decl. Ex. 2 (Search Checklist); Defs.’ Statement of Facts ¶ 24. As a result of these searches, the agency gathered nine sets of notes regarding the content of the interviews. Id. ¶ 27; Fletcher Decl. ¶ 6.²

On December 15, 2011, NIST sent Cole an interim response, supplying him with a link to the publicly-available McKinsey report. Defs.’ Statement of Facts ¶ 26. NIST's final response, on June 12, 2012, released the notes from a single interview (no. 1) but redacted the job title of the interviewee (a Port Authority employee). Id. ¶ 27; see Fletcher Decl. ¶¶ 27–30. NIST withheld in full the notes from the other eight interviews, Defs.’ Statement of Facts ¶¶ 27–28, relying on FOIA Exemption 3, section 7(c) of the National Construction Safety Team Act, and Director Gallagher's January 26, 2010 findings, id. ¶¶ 13–19, 28, 30. No audio recordings or transcriptions of these interviews were ever produced to Cole or listed in the Vaughn Index of withheld records. Pl.’s Statement of Facts ¶¶ 12, 21.

Cole filed an administrative appeal of NIST's decision on June 20, 2012. Compl. ¶¶ 11–13. On April 16, 2013, NIST denied this appeal, relying on Exemption 3 to withhold seven of the eight sets of notes. Pl.’s Statement of Facts ¶¶ 15–17. NIST acknowledged, however, that its June 12, 2012 final response had wrongly applied Director Gallagher's January 26, 2010 findings to one responsive record: an interview (#1041704) with an employee of Salomon Smith Barney who had witnessed the collapse of the towers.³ Pl.’s Statement of Facts ¶ 16; Compl. ¶¶ 14–15. Nonetheless, NIST withheld notes of the interview under FOIA Exemption 6, rather than Exemption 3. Pl.’s Statement of Facts ¶ 17; Compl. ¶¶ 20–25; Correspondence at 10–11.

On April 16, 2019, Cole filed suit against NIST and Copan in the United States District Court for the District of Columbia. See Compl. Cole seeks an injunction compelling NIST to provide all of the requested records in full. Id. at 7. NIST moved for summary judgment on November 21, 2019. See Defs.’ Mot. for Summ. J. Cole filed a cross-motion for summary judgment and motion for discovery in the alternative on December 24, 2019. See Pl.’s Mot. for Summ. J.

II. LEGAL STANDARDS

A. Motion for Summary Judgment

Rule 56 of the Federal Rules of Civil Procedure mandates that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). When a federal agency moves for summary judgment in a FOIA case, the court views all facts and inferences in the light most favorable to the requester, and the agency bears the burden of showing that it complied with FOIA. Chambers v. U.S. Dep't of Interior , 568 F.3d 998, 1003 (D.C. Cir. 2009).

To prevail under Rule 56, a federal agency "must prove that each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the [FOIA's] inspection requirements." Perry v. Block , 684 F.2d 121, 126 (D.C. Cir. 1982) (per curiam) (internal quotation marks omitted). The agency "must show beyond material doubt ... that it has conducted a search reasonably calculated to uncover all relevant documents," Krikorian v. Dep't of State , 984 F.2d 461, 468 (D.C. Cir. 1993) (internal quotation marks omitted), and must also explain why any of the nine enumerated exemptions listed in 5 U.S.C. § 552(b) applies to withheld information, Judicial Watch, Inc. v. Food & Drug Admin , 449 F.3d 141, 147 (D.C. Cir. 2006) ; see also Mobley v. CIA , 806 F.3d 568, 580 (D.C. Cir. 2015) (agency bears burden of justifying application of exemptions, "which are exclusive and must be narrowly construed").

"The peculiarities inherent in FOIA litigation, with the responding agencies often in sole possession of requested records and with information searches conducted only by agency personnel, have led federal courts to rely on government affidavits to determine whether the statutory obligations of the FOIA have been met." Perry , 684 F.2d at 126. Agency affidavits are entitled to a presumption of good faith, see SafeCard Servs. v. SEC , 926 F.2d 1197, 1200 (D.C. Cir. 1991), and a court may grant summary judgment based on an affidavit if it contains reasonably specific detail and neither contradictory record evidence nor evidence of bad faith calls it into question, see Judicial Watch, Inc. v. U.S. Secret Serv. , 726 F.3d 208, 215 (D.C. Cir. 2013). The "vast majority of FOIA cases can be resolved on summary judgment." Brayton v. Office of the U.S. Trade Representative , 641 F.3d 521, 527 (D.C. Cir. 2011).

B. Motion for Discovery

Under Rule 56(d) of the Federal Rules of Civil Procedure, "[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may ... allow time to obtain affidavits or declarations or to take discovery." Fed. R. Civ. P. 56(d). Discovery in FOIA cases is "rare" and "only appropriate when an agency has not taken adequate steps to uncover responsive documents." Schrecker v. U.S. Dep't of Justice , 217 F. Supp. 2d 29, 35 (D.D.C. 2002), aff'd , 349 F.3d 657 (D.C. Cir. 2003). In the FOIA context, district courts have "broad discretion" to deny discovery, and courts permit discovery "only in exceptional circumstances where a plaintiff raises a sufficient question as to the agency's good faith in searching for or processing documents." Cole v. Rochford , 285 F. Supp. 3d 73, 76–77 (D.D.C. 2018) ; see also Baker & Hostetler LLP v. U.S. Dep't of Commerce , 473 F.3d 312, 318 (D.C. Cir. 2006) (denying discovery request as plaintiff offered no evidence of bad faith).

The D.C. Circuit has interpreted Rule 56(d) to require an "affidavit" that "satisf[ies] three criteria." Convertino v. U.S. Dep't of Justice , 684 F.3d 93, 99 (D.C. Cir. 2012) ; see also Serv....