On January 8, 2014, the White House posted a controversial video claiming that global warming causes more severe winter cold. Called “The Polar Vortex Explained in 2 Minutes,” it featured the director of the White House Office of Science & Technology Policy (OSTP), , claiming that a “growing body of evidence” showed that the “extreme cold being experienced by much of the United States” at the time was “a pattern that we can expect to see with increasing frequency as global warming continues.”
This claim was questioned by many scientists and commentators. (See, e.g., Jason Samenow, Scientists: Don’t make “extreme cold” centerpiece of global warming argument, Washington Post, Feb. 20, 2014 (linking to objection by five well-known climate scientists in the Feb. 14, 2014 issue of Science magazine); Patrick J. Michaels, Hot Air About Cold Air, Jan. 16, 2014 (former state climatologist of Virginia rejected Holdren’s claim))
In April 2014, the Competitive Enterprise Institute (CEI) sent a request for correction of this statement under the federal Information Quality Act, citing peer-reviewed scientific articles debunking it. In June 2014, OSTP rejected this request, claiming that Holdren’s statement was his “personal opinion,” not the agency’s position, and that it thus did not constitute “information” subject to the Information Quality Act, which excludes “subjective opinions” from its reach.
In response, CEI filed a Freedom of Information Act request seeking documents related to the video, its production at taxpayer expense, and OSTP’s rejection of its correction request. Despite having earlier claimed that the video was just Holdren’s personal opinion, not the agency’s, OSTP withheld portions of emails about it as privileged “agency records.” It also refused to produce drafts of its letter rejecting CEI’s request for correction. It withheld two drafts even though they had been shared with an outside professor (and initially even concealed their very existence), and sharing a document with someone outside an agency usually waives any privilege to keep it secret.
After OSTP persisted in keeping these records secret, CEI sued it in federal court in October 2014. This is one of many FOIA lawsuits against the Obama administration, which former New York Times editor Jill Abramson said is the most secretive ever. The Huffington Post says that the “White House denies more FOIA requests than ever” these days.
In February 2016, U.S. District Judge Amit Mehta ruled that OSTP must produce these records, since the emails did not involve privileged agency policymaking, and the drafts of OSTP’s rejection letter had lost their privileged status by being shared with a non-agency employee. OSTP had claimed the professor it was shared with was a neutral consultant, and thus, functionally an agency employee. But the judge ruled that the professor, who is the principal exponent of the idea that global warming is causing more winter cold, was an interested party, not a neutral consultant. Thus, none of the records were privileged under FOIA’s Exemption 5 deliberative process privilege.