Competitive Enterprise Institute v. Office of Science & Technology Policy

The federal district court for the District of Columbia said it would allow discovery in an action brought by the Competitive Enterprise Institute (CEI) to compel the Office of Science and Technology Policy (OSTP) to produce records pursuant to the Freedom of Information Act (FOIA) related to a video posted on the White House’s website that connected the 2014 polar vortex to climate change. The court found that CEI had raised a “sufficient question as to the agency’s good faith” in processing the FOIA request. The court said that OTSP had made inconsistent representations regarding the scope and completeness of its searches.

The federal district court for the District of Columbia ruled that the White House Office of Science & Technology Policy (OSTP) could for the most part withhold—based on the deliberative process privilege—drafts of a letter prepared in response to the Competitive Enterprise Institute’s request that OTSP correct claims made by the OSTP director in an online video about the link between climate change and the Polar Vortex. The court ruled, however, that OSTP had to disclose draft pages that were shared with a Rutgers University professor whose research supported the theory that climate change had led to more severe winter cold. The court said that the “consultant corollary” did not apply in this situation. The court also said that emails concerning the video could not be withheld because OSTP had asserted that the video expressed the director’s personal opinion and expert judgment, and the deliberative process privilege was primarily concerned with protecting the policymaking process.

The Competitive Enterprise Institute (CEI) filed an action under the federal Freedom of Information Act (FOIA) to compel the Office of Science and Technology Policy (OSTP) to produce documents related to a video posted on the White House website in January 2014 called “The Polar Vortex Explained in 2 Minutes.” The video, according to CEI, was “about global warming supposedly causing severe winter cold.” CEI alleged that OSTP improperly relied on FOIA’s deliberative process privilege to withhold documents.