Cole v. Copan

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

DAVID COLE,

Plaintiff,

v.
No. 19-cv-1070 (DLF)
WALTER G. COPAN, Director, National
Institute for Standards and Technology, et al.,

Defendants.

MEMORANDUM OPINION

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. BACKGROUND 1

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

1
Where facts are undisputed, this opinion cites solely to NIST’s Statement of Undisputed Facts,
Dkt. 9-2, unless otherwise noted. “In ruling on a motion for summary judgment, the Court may
assume that facts identified by the moving party in its statement of material facts are admitted,
unless such a fact is controverted . . . in [the non-moving party’s] opposition to the motion.”

1
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.

Hawkins v. District of Columbia, No. 17-cv-1982, 2020 WL 601886, at *4 (D.D.C. Feb. 7, 2020)
(internal quotation omitted).

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 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.

2
Although Cole asked for records regarding nine interviews, ten records are at issue because two
different officials took notes during Interview 2041604. Defs.’ Statement of Facts ¶ 25. For
simplicity, this opinion will refer to the two records of Interview 2041604 as a single unit.

3
 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

3
Director Gallagher’s January 26, 2010 findings did not apply to this interviewee because he
was a private employee of Salomon Smith Barney rather than an employee of any of the various
governmental organizations covered by the NIST policy (e.g., FDNY or NYPD). See Defs.’
Statement of Facts ¶¶ 14–19.

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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, 974 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.

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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.

Emps. Int’l Union Nat’l Indus. Pension Fund v. Parkway Healthcare, LLC, No. 17-cv-1676,

2018 WL 4705805, at *4 (D.D.C. Sept. 30, 2018). The affidavit must (1) “outline the particular

facts [the non-movant] intends to discover and describe why those facts are necessary to the

litigation”; (2) “explain why [the non-movant] could not produce the facts in opposition to the

motion for summary judgment”; and (3) “show the information is in fact discoverable.”

Convertino, 684 F.3d at 99–100 (internal alterations and quotation marks omitted).

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III. ANALYSIS

A. Adequacy of the Search

Cole’s FOIA request sought “[a]udio recordings of Interviews, and other records

corresponding to footnote #’s 368 through 389” in one of the reports NIST issued about its

investigation of the World Trade Center attacks. Correspondence at 1; Pl.’s Statement of Facts

¶ 7. NIST located notes of the interviews referenced in these footnotes but asserts that it does

not possess audio recordings or verbatim transcriptions of these interviews. Pl.’s Statement of

Facts ¶¶ 12, 21. Cole contends that NIST’s search was inadequate because NIST’s own

publications prove that audiotapes or transcriptions of these interviews once existed. Pl.’s Mem.

in Supp. of Mot. for Summ. J. (Pl.’s Br.), Dkt. 12-1, at 11–13.

The adequacy of a search “is judged by a standard of reasonableness and depends, not

surprisingly, upon the facts of each case.” Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476,

1485 (D.C. Cir. 1984). To survive a motion for summary judgment, an agency “must show that

it made a good faith effort to conduct a search for the requested records, using methods which

can be reasonably expected to produce the information requested.” Reporters Comm. for

Freedom of Press v. FBI, 877 F.3d 399, 402 (D.C. Cir. 2017) (quoting Oglesby v. U.S. Dep’t of

Army, 920 F.2d 57, 68 (D.C. Cir. 1990)). “[T]he issue to be resolved is not whether there might

exist any other documents possibly responsive to the request, but rather whether the search for

those documents was adequate.” Weisberg, 745 F.2d at 1485 (emphasis in original); see also

SafeCard, 926 F.2d at 1201.

“The agency has the initial burden to demonstrate the adequacy of its search, which it

may meet by providing declarations or affidavits that are ‘relatively detailed[,] . . .

nonconclusory and submitted in good faith.’” Landmark Legal Foundation v. Envtl. Prot.

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Agency, 959 F. Supp. 2d 175, 181 (D.D.C. 2013) (quoting Weisberg v. Dep’t of Justice, 705 F.2d

1344, 1351 (D.C. Cir. 1983)). “Once the agency has provided a reasonably detailed affidavit

describing its search, the burden shifts to the FOIA requester to produce ‘countervailing

evidence’ suggesting that a genuine dispute of material fact exists as to the adequacy of the

search.” Hunton & Williams LLP v. U.S. Envtl. Prot. Agency, 248 F. Supp. 3d 220, 236 (D.D.C.

2017) (citing Morley v. CIA, 508 F.3d 1108, 1116 (D.C. Cir. 2007)).

NIST has met its initial burden by submitting agency declarations and documents that are

detailed and nonconclusory. See, e.g., Fletcher Decl.; Shyam-Sunder Decl., Dkt. 14-1; Search

Checklist. NIST’s FOIA/Privacy Act Officer coordinated the initial search for records

responsive to Cole’s request; that search followed NIST’s “standard FOIA procedures” and was

documented “contemporaneously with the search” in order to log the “locations searched” and

the people searching. Fletcher Decl. ¶¶ 1, 6. NIST personnel searched agency files, personal

files, computers, storage areas, audiotapes, and “any other place that might contain responsive

material,” see Search Checklist, but found no audiotapes or transcriptions of the interviews

referenced in Cole’s request, see Fletcher Decl. ¶ 6. After this case was filed, NIST conducted a

second search for audiotapes or transcriptions. Shyam-Sunder Decl. ¶ 17. NIST’s lead

investigator for the 9/11 investigation consulted with the manager in charge of the World Trade

Center records, the director of the Engineering Laboratory, and three staff members involved in

the original interviews. Id. ¶¶ 1, 19. All these officials confirmed that NIST does not possess

audiotapes or transcriptions for the interviews. Id. ¶¶ 20, 23–24.

Cole has not offered any countervailing evidence raising doubts about the adequacy of

NIST’s search. Instead, he argues that the agency’s representations are “inherently

unbelievable” because “one would have thought that . . . [these records] would be readily

8
identifiable and easy to search for and locate.” Pl.’s Br. at 12. But pure speculation is not

rebuttal. Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, 241 F. Supp. 3d 14, 22

(D.D.C. 2017); see also Kalmin v. Dep’t of Navy, 605 F. Supp. 1492, 1496 (D.D.C. 1985)

(“possibility that certain evidence may be suspect” is not “proof that it is wrong” and cannot

avert summary judgment in the FOIA context). Cole gives no reason to distrust the agency’s

sworn statement that the eight interviews at issue were either among those that were not

recorded, or if they were recorded, the recordings are no longer in NIST’s possession. Shyam-

Sunder Decl. ¶¶ 23–24.

Instead, Cole highlights NIST’s use of the word “transcribed” in one sentence of its 2005

NCSTAR 1-8 report. See Pl.’s Reply, Dkt. 18, at 7, 16; Pl.’s Statement of Facts ¶ 5. According

to that report, “[a]ll first-person interviews conducted by NIST were transcribed along with radio

and telephone communications of interest.” NCSTAR 1-8, Dkt. 12-4, at 39 (emphasis added).

Cole speculates that the word “transcribed” means that “a court reporter or perhaps . . .

computer[]” created verbatim transcriptions “from audio” after the interviews were conducted.

See Pl.’s Reply at 7. But NIST asserts that the word “transcribed” refers only to the hand-written

notes originally taken during the interviews. See Defs.’ Reply, Dkt. 15, at 3 n.4. Given the

ambiguity of “transcribed” in this context, NIST’s explanation is a reasonable one, and Cole has

offered no other evidence that verbatim transcriptions exist.

Cole also objects to NIST’s search on the ground that NIST never searched the ATLAS.ti

text-file database, even though it admitted that it had previously imported the interview records

into this computer program. Pl.’s Br. at 12. But NIST had no obligation to examine the

ATLAS.ti database because it no longer subscribes to the database. See Shyam-Sunder Decl.

¶ 22; see also Penny v. U.S. Dep’t of Justice, 653 F. Supp. 2d 83, 85 (D.D.C. 2009) (“[a]n

9
agency is required to produce only those records in its custody and control at the time of the

FOIA request”). Moreover, the ATLAS.ti database only contained copies of the same interview

notes that the agency already located. Shyam-Sunder Decl. ¶ 21. On summary judgment, an

agency “must show that it made a good faith effort to conduct a search for the requested records,

using methods which can be reasonably expected to produce the information requested.”

Reporters Comm., 877 F.3d at 402 (internal quotation marks omitted). NIST has done so here,

and Cole has not produced evidence showing a genuine dispute of material fact.

B. FOIA Exemption 3

NIST invokes FOIA Exemption 3 to justify withholding seven of the eight sets of

interview notes of FDNY, NYPD, and other New York City officials. See Pl.’s Statement of

Facts ¶¶ 8, 15. Exemption 3 permits the nondisclosure of materials that are “specifically

exempted from disclosure by [another] statute” so long as that statute “establishes particular

criteria for withholding or refers to particular types of matters to be withheld; and . . . specifically

cites this paragraph.” 5 U.S.C. § 552(b)(3)(A)–(B). NIST relies on section 7 of the National

Construction Safety Team Act, which cites FOIA Exemption 3. See 15 U.S.C. § 7306(b)(i).

Neither party contests that the National Construction Safety Team Act qualifies as a withholding

statute under FOIA Exemption 3. See Compl. ¶¶ 8–17; see also Quick v. U.S. Dep’t of

Commerce, 775 F. Supp. 2d 174, 180 (D.D.C. 2011) (withholding under the NCSTA is a

“straightforward application of FOIA Exemption 3”).

15 U.S.C. 7306(c) prohibits “any agency receiving information from a Team or the

National Institute of Standards and Technology” from disclosing “voluntarily provided safety-

related information if that information is not directly related to the building failure being

investigated and the Director finds that the disclosure of the information would inhibit the

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voluntary provision of that type of information.” 15 U.S.C. § 7306(c). And in January 2010,

NIST’s Director exercised his authority pursuant to this section to find that disclosure of

interviews with FDNY, NYPD, and New York City officials “would inhibit the voluntary

provision of that type of information in this and future investigations.” Defs.’ Statement of Facts

¶¶ 14–19. Those interviews constituted “voluntarily provided safety-related information.”

15 U.S.C. § 7306(c). The interviewees consented to testify before NIST, the 9/11 Commission,

and the City of New York “concerning the emergency operations, building issues, and safety

issues” involved with the 9/11 emergency response. Defs.’ Statement of Facts ¶ 10; see also

NCSTAR 1-8 at 10–11 (stressing “the voluntary nature of the interviews” and noting that a

“number of the [emergency responders] who NIST requested” to speak with “did not volunteer

to be interviewed”).

Cole argues that because the interviewees provided their testimony to multiple

governmental bodies, rather than to NIST alone, they fall outside the purview of § 7306(c). Pl.’s

Br. at 15. But the statutory text explicitly forbids NIST as well as “any [other] agency receiving

information” from disclosing it once the NIST Director “finds that the disclosure of the

information would inhibit the voluntary provision of that type of information.” 15 U.S.C.

§ 7306(c). Nothing in the plain language of the National Construction Safety Team Act indicates

that this exemption applies only to information provided to NIST alone, as opposed to

information simultaneously provided to other governmental bodies.

Cole also contends that the interviews were not “voluntarily provided” because these

various current and former state government employees had a preexisting legal duty to report the

information they divulged in the interviews. Pl.’s Br. at 15–16. But any duty to report arising

out of these individuals’ government employment would not have been owed to any entity

11
beyond the state and municipal governments that employed them. See U.S. ex rel. Long v. SCS

Bus. & Technical Inst., 999 F. Supp. 78, 89 (D.D.C. 1998); rev’d on other grounds, 173 F.3d 870

(D.C. Cir. 1999) (state employee’s information was “voluntarily provided” to federal agency

because employee had “no duty to report . . . to federal authorities”). Indeed, New York City

limited the federal investigators’ access to its employees by imposing a maximum on the number

of responders NIST could interview, see Defs.’ Statement of Facts ¶¶ 7–8.

Finally, these interviews were “not directly related to the building failure being

investigated,” as § 7306(c) requires. Eyewitness observations about the sights and sounds

observed on September 11 may give rise to various inferences about the structural factors that

ultimately caused the towers to fall. But such observations are not “directly related” to the

building failures in the sense that they shed direct light on the complex engineering questions

surrounding the collapse of multiple skyscrapers. The focus of the interviews in question was

the emergency response and the evacuation procedures employed on September 11, 2001, see

Fletcher Decl. ¶¶ 13–14; Pl.’s Statement of Facts ¶ 18, not the details concerning the structural

integrity of the buildings being evacuated. Because the National Construction Safety Team Act

qualifies as an Exemption 3 withholding statute and the seven interviews withheld under

Exemption 3 satisfy the criteria of § 7306(c), the Act exempts them from disclosure, and the

notes concerning these interviews were properly withheld in full. See, e.g., Quick, 775 F. Supp.

2d at 179–181 (withholding thousands of nonexempt records in full under FOIA Exemption 3

and the NCSTA).

C. FOIA Exemption 6

NIST relies on FOIA Exemption 6 to justify nondisclosure of a single set of notes—those

regarding an interview with a private employee of Salomon Smith Barney. Pl.’s Statement of

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Facts ¶¶ 16–17. 4 Exemption 6 allows an agency to withhold “personnel and medical files and

similar files the disclosure of which would constitute a clearly unwarranted invasion of personal

privacy.” 5 U.S.C. § 552(b)(6). When evaluating an Exemption 6 withholding, courts must

balance the privacy interests implicated by the records sought against the public interest in their

disclosure. See Judicial Watch, 449 F.3d at 153; Nat’l Ass’n of Retired Fed. Emps. v. Horner,

879 F.2d 873, 874, 879 (D.C. Cir. 1989). If the agency identifies “a substantial privacy interest”

to be protected, courts weigh that interest against the “only relevant public interest,” which is

“the extent to which disclosure of the information sought would shed light on an agency’s

performance of its statutory duties or otherwise let citizens know what their government is up

to.” Jurewicz v. U.S. Dep’t of Agriculture, 741 F.3d 1326, 1332 (D.C. Cir. 2014) (internal

quotations omitted) (emphasis added).

To the extent that the notes of this interview reflect personal details about the

interviewee’s subjective reactions to the events of September 11, 2001, or reveal the identity of

the interviewee or other witnesses to those events, the privacy interests in those notes are more

than substantial. This interviewee, a private citizen, was a victim in the September 11 attacks,

and nothing in the record indicates that he expected his voluntary testimony would become

public. It is “common sense” that “victim allegation statements [are] privacy-related” because

“crime reports and statements by victims[] can be of the most private nature.” Bagwell v. U.S.

Dep’t of Educ., 183 F. Supp. 3d 109, 129 (D.D.C. 2016).

Against these privacy interests, Cole asserts the public’s interest in learning that NIST

“spent millions of taxpayers’ dollars but failed to detect the actual cause of these building

4
As noted, NIST also cites FOIA Exemption 6 in support of its redaction of a Port Authority
employee’s title in the notes for Interview 1. Pl.’s Statement of Facts ¶¶ 10, 14; Defs.’ Statement
of Facts ¶ 27. Cole does not challenge this minor redaction. See Pl.’s Br. at 16–21.

13
collapses, with the result being that the FBI is not even investigating the crimes involved in

placing explosives in these buildings let alone getting the perpetrators off the streets.” Pl.’s

Reply at 13. Because the asserted public interest is outweighed by the substantial privacy

interests at stake, Exemption 6 properly applies.

Nonetheless, the Court has an “affirmative duty” to determine “sua sponte,” Juarez v.

Dep’t of Justice, 518 F.3d 54, 60 (D.C. Cir. 2008) (internal quotation marks omitted), whether

“[a]ny reasonably segregable portion of a record” can “be provided to any person requesting

such record after deletion of the portions which are exempt,” 5 U.S.C. § 552(b). The FOIA

segregability analysis concentrates on whether the nonexempt portions of the document are

“inextricably intertwined with exempt portions.” See Evans v. Fed. Bureau of Prisons, 951 F.3d

578, 583 (D.C. Cir. 2020) (citing 5 U.S.C. § 552(b) and Mead Data Cent., Inc. v. U.S. Dep’t of

Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977)).

Based on the current record, NIST has not clearly established that the exempt and

nonexempt portions of Interview 1041704 are “inextricably intertwined” such that “it would be

impossible to produce meaningful information while redacting the exempt portions.” Kwoka v.

I.R.S., No. 17-cv-1157, 2018 WL 4681000, at *4 (D.D.C. Sept. 18, 2018). Missing from the

record is an adequate explanation as to why NIST is unable to redact identifying personal

information and disclose objective, empirical observations that do not intrude on privacy

interests. Instead, NIST simply insists, in conclusory fashion, that it “conducted a line-by-line

review of [Interview 1041704] to identify information exempt from disclosure” and “concluded

that there [was] no reasonably segregable non-exempt portions of this record.” Fletcher Decl.

¶ 26. Given the conclusory nature of NIST’s explanation, the Court will deny its motion for

summary judgment with respect to the interview notes of Interview 1041704 and direct the

14
agency to provide a supplemental declaration explaining why it cannot segregate and disclose

portions of the notes that do not implicate substantial privacy interests.

D. Motion for Discovery

As an alternative to summary judgment, Cole moves for discovery to substantiate his

objections to the searches that NIST performed and the exemptions it claimed. See Pl.’s Mot. for

Summ. J. “Discovery in FOIA is rare and should be denied where an agency’s declarations are

reasonably detailed, submitted in good faith and the court is satisfied that no factual dispute

remains.” Baker & Hostetler LLP, 473 F.3d at 318 (internal quotation marks omitted). When an

agency’s declarations are insufficient to establish an adequate search, courts “generally will

request that an agency supplement its supporting declarations” instead of ordering discovery.

Landmark Legal, 959 F. Supp. 2d at 183 (internal quotation marks omitted). Limited discovery

is typically only permitted when the agency has acted in bad faith, such as in cases where there

has been extreme delay or evidence of wrongdoing. Id. at 184.

Cole contends that NIST acted in bad faith because NIST never turned over the audio

records and verbatim transcriptions that Cole believes must exist and because NIST engaged in

“extreme delay” in processing his request. Pl.’s Br. at 23–26. As discussed, supra pp. 7–10,

NIST conducted an adequate search. And there is no evidence of extreme delay. NIST sent its

first response to Cole less than two months after his initial request, supplied a second responsive

record along with its final response another four months later, and spent the intervening months

searching through files, computers, and storage areas. Pl.’s Statement of Facts ¶¶ 7, 10, 14;

Defs.’ Statement of Facts ¶¶ 20, 24, 27–28. In addition, Cole has failed to submit an affidavit in

support of his discovery motion—let alone one that (1) “outline[s] the particular facts [the non-

movant] intends to discover and describe why those facts are necessary to the litigation”; (2)

15
“explain[s] why [the non-movant] could not produce the facts in opposition to the motion for

summary judgment”; and (3) “show[s] the information is in fact discoverable,” as Circuit

precedent requires. United States ex rel. Folliard v. Gov’t Acquisitions, Inc., 764 F.3d 19, 26

(D.C. Cir. 2014) (quoting Convertino, 684 F.3d at 99–100). Because there is no evidence that

NIST has acted in bad faith, the Court will not order discovery.

CONCLUSION

For the foregoing reasons, NIST’s motion for summary judgment is granted in part and

denied in part, and Cole’s cross-motion for summary judgment and motion for discovery in the

alternative is denied in part. A separate order consistent with this decision accompanies this

memorandum opinion.

________________________
DABNEY L. FRIEDRICH
August 27, 2020 United States District Judge

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