In January 2017, CSLDF filed a brief asking the federal District Court for the District of Columbia to protect National Oceanic and Atmospheric Administration (NOAA) climate scientists. On August 21, the D.C. court upheld NOAA’s decision not to release its climate scientists’ research documents to the conservative group Judicial Watch.
In the case, Judicial Watch sought to use the Freedom of Information Act (FOIA), which allows U.S. citizens to request copies of government documents, to obtain NOAA scientists’ emails, drafts, and peer review comments related to a June 2015 paper published in Science. The study, which is also known as the “Hiatus Paper,” found that recent ocean surface temperature increases were greater than those indicated by other peer-reviewed studies, thus refuting the idea of a “pause” in global warming.
The scientists’ findings did not sit well with Judicial Watch, which doesn’t agree with the science of climate change. Judicial Watch sued for the NOAA scientist’s documents; the organization’s president claimed that the requested materials “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 the “deliberative process privilege” protected these documents. The 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 decision-making process, and “deliberative,” meaning involving consultative give-and-take. The rationale for this privilege is to safeguard preliminary documents that, if released, could prevent candid collaboration and open discussions among agency employees.
NOAA argued 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.”
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.
The district court also dismissed Judicial Watch’s claim that a February 2017 article in The Mail on Sunday showed potential wrongdoing by the NOAA scientists and should, therefore, overrule the deliberative process privilege. In the article, a former NOAA employee asserted that certain data archiving protocols had not been completed for the Hiatus Paper; the court said 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.”
This case is part of a larger trend where groups that dispute the scientific consensus on climate change attempt to use FOIA or state open records laws to access publicly funded climate scientists’ private correspondence, including similar cases in Arizona (currently on appeal) and Virginia.
Hostile groups have also targeted researchers in other fields – from biomedical researchers to environmental health scientists – under open records laws. 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