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JUDICIAL WATCH, INC. v. U.S. DEPARTMENT OF ENERGY

March 31, 2004.

JUDICIAL WATCH, INC., Plaintiff,
v.
UNITED STATES DEPARTMENT OF ENERGY, et al., Defendants; NATURAL RESOURCES DEFENSE COUNCIL, INC., Plaintiff, v. UNITED STATES DEPARTMENT OF ENERGY, Defendant NATURAL RESOURCES DEFENSE COUNCIL, INC., Plaintiff, v. DEPARTMENT OF INTERIOR, et al., Defendants



The opinion of the court was delivered by: PAUL FRIEDMAN, District Judge Page 2

OPINION

Plaintiffs have filed the above-captioned cases to challenge the responses of the defendant departments and agencies to plaintiffs' requests for records under the Freedom of Information Act, 5 U.S.C. § 552 et seq. Plaintiff Natural Resources Defense Council has filed motions for summary judgment with respect to the Department of Energy, the Department of the Interior and the Bureau of Land Management. All of the defendants have filed motions for summary judgment. The consolidated cases came before the Court for a motions hearing on January 26, 2004. For the reasons stated below, the Court grants in part and denies in part plaintiff Natural Resources Defense Council's motions for summary judgment and the motions for summary judgment of defendants Department of Energy, Department of the Interior, Bureau of Land Management, Department of Agriculture, Environmental Protection Agency, Department of Commerce, and Department of Transportation. The Court denies the motions for summary judgment of defendants Department of the Treasury and Federal Emergency Management Agency. Defendant Office of Management and Budget has settled with plaintiff Judicial Watch and its motion for summary judgment therefore is denied as moot.

I. BACKGROUND

  On January 29, 2001, President George W. Bush issued a Presidential Memorandum creating, within the Executive Office of the President, the National Energy Policy Development Group ("NEPDG"). See Motion for Summary Judgment by Defendants Environmental Protection Agency and Department of Energy ("EPA and DOE Mot.") at 3. The stated purpose of the NEPDG was to gather information and provide the President with Page 3 recommendations for a national energy policy. See Id. at 3. The NEPDG consisted of: the Vice President, the Secretary of the Treasury, the Secretary of the Interior, the Secretary of Agriculture, the Secretary of Commerce, the Secretary of Transportation, the Secretary of Energy, the Director of the Federal Emergency Management Agency, the Assistant to the President and Deputy Chief of Staff for Policy, the Assistant to the President for Economic Policy, and the Assistant to the President for Intergovernmental Affairs. See Id. at 3. The Vice President chaired the NEPDG and was authorized to invite the Chairman of FERC, the Secretary of State, and "other officers of the federal government" to participate, as appropriate. Id. at 3-4.

  Representatives from each member agency participated in an NEPDG working group ("Working Group") to assist the NEPDG in formulating its recommendations to the President. See EPA and DOE Mot. at 4. The Working Group, composed of federal employees assigned from their respective agencies and departments to the NEPDG, was responsible for the NEPDG's daily operations. See Id. The Working Group also was responsible for developing a draft outline for the energy policy report and for delegating tasks to the participating agencies with expertise in particular areas. See id.

  Ultimately, the work-product of the nine departments and agencies involved was conveyed to the Working Group and on to the NEPDG, the Vice President and the President. See EPA and DOE Mot. at 8. On May 17, 2001, the NEPDG publicly issued the final version of the energy policy report ("Report"). See id. Page 4

  A. Judicial Watch

  On April 19, 2001, plaintiff Judicial Watch sent FOIA requests to the Department of Agriculture ("USDA"), the Department of Commerce ("DOC"), the Department of Energy ("DOE"), the Department of the Interior ("DOI"), the Department of the Treasury ("Treasury"), the Environmental Protection Agency ("EPA"), the Federal Emergency Management Agency ("FEMA") and the Office of Management and Budget ("OMB"). Judicial Watch's FOIA requests sought documents regarding:
1. [The] Bush Administration energy task force (the Energy Policy Development Group) and its deliberations.
2. Communications to and from the Bush Administration energy task force.
3. Communications between members of the task force and its administrators, Andrew Lundquist and Karen Knutson.
Judicial Watch Supplemental Amended Complaint ("J.W. Compl."), Ex. 1 at 1-2.

  On May 9, 2001, Judicial Watch filed the instant action against all the departments and agencies to which it had submitted FOIA requests to compel compliance with the requirements of the FOIA. After the suit was filed, Treasury and FEMA denied plaintiff's request for a fee waiver. Treasury and FEMA stopped processing plaintiff's FOIA requests when plaintiff did not agree to pay the required fee. See Judicial Watch, Inc. v. United States Department of Energy, 191 F. Supp.2d 138, 140-141 (D.D.C. 2002). As of March 5, 2002, OMB, DOI, USDA and EPA had responded to the FOIA request of Judicial Watch, but DOE, DOT and DOC were still processing the requests and had produced no documents. See Id. at 140. On March 5, 2002, the Court ordered OMB, DOI and USDA to produce any additional non-exempt records and a Vaughn index to plaintiff. DOE, EPA, DOC and DOT were ordered Page 5 to provide Judicial Watch with a package of non-exempt records and parts of records and a Vaughn index. See Id. at 141. The defendants then briefed the instant motions for summary judgment.

  B. Natural Resources Defense Council

  On April 26, 2001, plaintiff Natural Resources Defense Council submitted FOIA requests to DOI and DOE requesting records relating to the NEPDG. See NRDC's Complaint against the Department of the Interior and the Bureau of Land Management ("NRDC DOI Compl") at ¶ 23; NRDC's Complaint against the Department of Energy ("NRDC DOE Compl") at ¶ 14. NRDC requested the following records under the FOIA:
1. Records identifying the members of the Task Force and any and all working groups, subcommittees or other groups reporting to the Task Force;
2. Records relating to the purpose or work plan of the Task Force and any and all working groups, subcommittees or other groups formed to assist the Task Force;
3. The calendars dating from January 21, 2001 to the present of the agency head and any agency staff performing work related to the Task Force;
4. Minutes, notes or other records of meetings attended by the agency head or any agency staff relating to the work of the Task Force;
5. Records relating to any contractors or temporary full-time agency employees hired by the agency regarding the work of the Task Force, including but not limited to the contracts with these individuals, their resumes, and their SF-171 forms;
  6. Records relating to communications between agency personnel and members of the Presidential transition team (a list of the individual names is attached) regarding the Task Force; Page 6
 
7. Records regarding any efforts by agency personnel or the Task Force to screen for conflicts of interest or bias among the individuals or groups providing advice relating to the work of the Task Force;
8. Records prepared by agency personnel relating to the work of the Task Force;
9. Records received from non-agency individuals or groups, contractors or temporary full-time agency employees relating to the work of the Task Force; and
10. Records relating to solicitation of advice from individuals or groups regarding the work of the Task Force that have not already been included in response to any of the categories above.
NRDC DOI Compl. at ¶ 23; NRDC DOE Compl. at ¶ 14.*fn1
  NRDC filed a subsequent FOIA request with DOI on April 18, 2002. See NRDC DOI Compl. at ¶ 29. By this submission NRDC requested:
1. The complete calendars for Secretary Norton, Sue Ellen Wooldridge, Tom Fulton, Ann Klee, William Bettenberg and Brian Waidmann;
2. Any and all correspondence to and from Secretary Norton and other agency staff with outside parties relating to matters considered by the Task Force;
3. Any and all correspondence to and from agency staff and other government employees relating to matters considered by the Task Force;
4. Any and all minutes, notes or other records of meetings attended by agency staff relating to the work of the Task Force;
  5. Financial disclosure forms to the extent they are not protected from public disclosure for Secretary Norton, Sue Ellen Page 7 Wooldridge, Tom Fulton, Ann Klee, William Bettenberg and Brian Waidmann; and
 
6. Documents identified above that were listed in the Vaughn index provided to Judicial Watch as being partially released, but which NRDC did not receive.
NRDC DOI Compl., Ex. 2.
  NRDC submitted a FOIA request to the Bureau of Land Management ("BLM") on February 14, 2002, asking for records relating to an interagency Task Force on Energy Project Streamlining ("Streamlining Task Force") which had been established by executive order on May 18, 2001 and was intended to expedite energy-related projects. See NRDC DOI Compl. at ¶ 33. It requested:
[A]ll records in the possession of the Bureau of Land Management (BLM) or any of its field offices that relate to any project that was the subject of letter(s) or comments(s) submitted to the White House Task Force on Energy Project Streamlining, including but not limited to:
a. [Records] from the Council on Environmental Quality or any member of its staff including the Chairman to any Interior Department official;
b. [Records] from any Interior Department official to any BLM official of employee;
c. [Records] instructing any BLM official or employee in any office including headquarters and field offices to:
i. Assess whether a project should be streamlined and if so, in what way(s)
ii. Streamline, expedite or otherwise advance a project; and
  iii. Reject a request for streamlining Page 8
 
d. [Records] from any BLM official or employee to any field office; and
e. [Records] from any BLM employee or official to the sponsor(s) of any project referenced above.
NRDC DOI Compl, Ex. 3.
  On May 6, 2002, NRDC submitted its final FOIA request to DOI requesting records related to the implementation of the NEPDG recommendations contained in the files of seventeen specified individuals. See NRDC DOI Compl. at ¶ 39. It requested:
1. [A]ll records of [seventeen named individuals] that relate to any project that was the subject of letter(s) or comments(s) submitted to the White House Task Force on Energy Project Streamlining ("White House Streamlining Task Force"), including but not limited to:
a. [Records] from the Council on Environmental Quality or any member of its staff . . . regarding any project(s) suggested for streamlining;
b. [Correspondence] from or to third parties regarding any project that was the subject of letter(s) or comments(s) submitted to the White House Streamlining Task Force, including letters from sponsors of such projects;
c. [Records] from Interior Department officials to any bureau or agency official or employee regarding any project(s) recommended for streamlining whether by the White House Streamlining Task Force or any other source. . . .;
d. [Records] instructing any agency official or employee in an office including headquarters and field offices to:
i. [A]ssess whether a nominated project should be streamlined and, if so, in what way(s)
  ii. [S]treamline, expedite or otherwise advance a nominated project; and Page 9

  iii. [R]eject a request for streamlining

 
2. [A] 11 records of [the seventeen named individuals] to any agency official or employee relating to implementation of the National Energy Plan and its direction to expedite energy production from public lands and remove or modify obstacles and "impediments" to development, including but not limited to:
a. [Correspondence] to any agency employee or official instructing, informing and/or asking them to take any action in conformance with or furtherance of the above-reference Plan or its directives;
b. [Correspondence] to or from third parties who have recommended or are recommending to the Interior Department, its agencies or bureaus that any energy project (other than those projects that were the subject of letters or comments submitted to the White House Streamlining Task Force) should be expedited, highlight, fast-tracked or pursued;
c. [Correspondence] to any agency or bureau employee or official . . . regarding streamlining, expediting or fast-tracking any land use plan for reasons related to development of energy resources, including any directions, criteria or instructions for identifying "time-sensitive" land use plans;
d. [Correspondence] to any agency or bureau employee or official regarding the streamlining of regulations or regulatory procedures adopted or relied on to implement the requirements of the National Environmental Policy Act and any other laws such as the Federal Land Policy and Management Act applicable to energy projects on or production from public lands;
e. [Correspondence] to any agency or bureau employee or official . . . directing, instructing or advising the agency to develop a plan for implementing the National Energy Plan; and
  f. [Correspondence] to any agency or bureau employee or official . . . approving the agency's plan for implementing the National Energy Plan; Page 10
 
3. [T]he personnel records for [ten named individuals] showing the date on which they first were employed at DOI during this Administration in any capacity;
4. [F]inancial disclosure forms to the extent they are not protected from public disclosure for [the ten named individuals];
5. [T]he calendars of [sixteen named individuals].
NRDC DOI Compl, Ex. 4.

  On December 11, 2001, NRDC filed Civil Action No. 01-2545 against DOE to compel compliance with the FOIA. On February 21, 2002, Judge Gladys Kessler ordered that a package of non-exempt documents and a Vaughn index be provided to plaintiff. On March 15, 2002, NRDC's case was consolidated with Judicial Watch's case (Civil Action No. 01-981, the earlier filed case) before the undersigned. See LCvR 40.5(d). The parties then briefed cross-motions for summary judgment. On July 1, 2002, NRDC filed Civil Action No. 02-1330 against DOI and BLM as a case related to the cases already filed by Judicial Watch and NRDC. See LCvR 40.5(b) and (c). The parties then briefed cross-motions for summary judgment in that case.

  II. DISCUSSION

  A. The Freedom of Information Act

  The fundamental purpose of the Freedom of Information Act is to assist citizens in discovering "what their government is up to." United States Department of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989). The FOIA therefore strongly favors openness, since Congress recognized in enacting it that an informed citizenry is "vital to the functioning of a democratic society, needed to check against corruption and to hold Page 11 the governors accountable to the governed." NLRB v. Robins Tire & Rubber Co., 437 U.S. 214, 242 (1978); See also Department of the Air Force v. Rose, 425 U.S. 352, 361 (1976) (purpose of FOIA is "to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny"). As such, "the Act is broadly conceived," EPA v. Mink, 410 U.S. 73, 79-80 (1973), and "disclosure, not secrecy, is the dominant objective of the Act." Department of the Air Force v. Rose, 425 U.S. at 361.

  Under the Freedom of Information Act, an agency may withhold documents responsive to a FOIA request only if the responsive documents fall within one of nine enumerated statutory exemptions. See 5 U.S.C. § 552(b). Consistent with the Act's "goal of broad disclosure, these exemptions have been consistently given a narrow compass," United States Department of Justice v. Tax Analysts, 492 U.S. 136, 151 (1989), and there is a "strong presumption in favor of disclosure." United States Department of State v. Ray, 502 U.S. 164, 173 (1991). The agency bears the burden of justifying any withholding, and the court reviews the agency claims of exemption de novo. See § 552(a)(4)(B); see also United States Department of State v. Ray, 502 U.S. at 173-74; Assassination Archives and Research Center v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003); Summers v. Department of Justice, 140 F.3d 1077, 1079-80 (D.C. Cir. 1998). To enable the court to determine whether documents were properly withheld, the agency must provide a detailed description of the information withheld through the submission of a so-called "Vaughn Index," sufficiently detailed affidavits or declarations, or both. See Oglesby v. United States Department of the Army, 79 F.3d 1172, 1178 (D.C. Cir. 1996); Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). Page 12

  Furthermore, the FOIA requires that "[a]ny reasonably segregable portion of a record shall be provided . . . after deletion of the portions which are exempt." 5 U.S.C. § 552(b). This comports with the policy of disclosure and prevents the withholding of entire documents, see Billington v. Department of Justice, 233 F.3d 581, 586 (D.C. Cir. 2000), unless the agency can demonstrate that the non-exempt portions of a document are "inextricably intertwined with exempt portions." Trans-Pacific Policing Agreement v. United States Customs Serv., 177 F.3d 1022, 1027 (D.C. Cir. 1999) (quoting Mead Data Central, Inc. v. United States Department of the Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977)). To withhold the entirety of a document, the agency must demonstrate that it cannot segregate the exempt material from the non-exempt and disclose as much as possible. See Kimberlin v. Department of Justice, 139 F.3d 944, 949-50 (D.C. Cir. 1998).

  The Court may grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits or declarations, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In a FOIA case, the Court may award summary judgment solely on the basis of information provided by the department or agency in affidavits or declarations when the affidavits or declarations describe "the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); see also Vaughn v. Rosen, 484 F.2d at 826-28. Agency affidavits or declarations must be Page 13 "relatively detailed and non-conclusory. . . ." SafeCard Services, Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991). Such affidavits or declarations are accorded "a presumption of good faith, which cannot be rebutted by `purely speculative claims about the existence and discoverability of other documents.'" Id. (internal citation and quotation omitted). An agency must demonstrate that "each document that falls within the class requested either has been produced, is unidentifiable, or is wholly [or partially] exempt from the Act's inspection requirements." Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978) (internal citation and quotation omitted).

  B. Fee Waiver and Exhaustion

  Generally, there are three levels or limitations on charging fees in connection with FOIA requests. An agency may charge fees for the search, review and duplication of records if the records are requested for a commercial use. 5 U.S.C. § 552(a)(4)(A)(ii)(I). If the records are sought for a non-commercial use and the request is made by an educational or non-commercial scientific institution or by a representative of the news media, an agency may charge fees only for duplication. 5 U.S.C. § 552(a)(4)(A)(ii)(II). In all other cases, an agency may charge fees for the search for and duplication of records. 5 U.S.C. § 552(a)(4)(A)(ii)(III). In addition, the FOIA provides that documents shall be provided either at no charge or at a reduced charge if "disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester." 5 U.S.C. § 552(a)(4)(A)(iii). Page 14

  1. FEMA

  FEMA received Judicial Watch's FOIA request on April 19, 2001. The request included a request for a public interest fee waiver and maintained that Judicial Watch "functions, in part, as a member of the news media." See Motion for Summary Judgment by Defendants Department of Treasury and Federal Emergency Management Agency ("Treasury and FEMA Mot."), Ex. 1 at 5. On May 21, 2001, FEMA responded to plaintiff's request stating that Judicial Watch had failed to provide sufficient information to support its request for a waiver. See id., Ex. 2 at 1. Plaintiff appealed the provisional denial of its fee waiver on May 29, 2001. See id., Ex. 3. On June 26, 2001, FEMA's general counsel denied Judicial Watch's appeal. See id., Ex.4.

  FEMA argues that Judicial Watch's request for a fee waiver was properly denied because documents received by Judicial Watch would not contribute significantly to the public's understanding of government operations and because plaintiff is not a member of the news media. See Treasury and FEMA Mot. at 2. Because the Court concludes that Judicial Watch is entitled to a public interest fee waiver, it is unnecessary to determine whether it is also a representative of the news media. See Long v. Bureau of Alcohol, Tobacco. and Firearms, 964 F. Supp. 494, 498 (D.D.C. 1997); Project on Military Procurement v. Department of the Navy, 710 F. Supp. 362, 368 (D.D.C. 1989).

  The FOIA provides that documents shall be provided either at no charge or at a reduced charge if "disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester." 5 U.S.C. § 552(a)(4)(A)(iii). Page 15 Actions challenging the denial of a fee waiver are determined de novo, but judicial review is limited to the record before the agency. See 5 U.S.C. § 552(a)(4)(A)(vii).

  FEMA's own regulations mimic the FOIA language and provide that FEMA may waive all fees when "disclosure of the information requested is deemed to be in the public interest because it is likely to contribute significantly to the understanding of the operations or activities of the Federal Government and is not primarily in the commercial interest of the requester." 44 C.F.R. § 5.43(a). FEMA regulations provide:
A fee waiver request shall indicate how the information will be used, to whom it will be provided, whether the requester intends to use the information for resale at a fee above actual cost, any personal or commercial benefits that the requester reasonably expects to receive by the disclosure, provide justification to support how release would benefit the general public, the requester's and/or intended user's identity and qualifications, expertise in the subject area and ability and intention to disseminate the information to the public.
44 C.F.R. § 5.43(b). Fee waiver requests must be made with "reasonable specificity" and be based on more than just "conclusory allegations." Judicial Watch, Inc. v. Rossotti, 326 F.3d 1209, 1312 (D.C. Cir. 2003).

  Recent case law suggests that the public interest exception should be viewed in an expansive manner. See Judicial Watch, Inc. v. Rossotti, 326 F.3d at 1315 (Judicial Watch's FOIA requests to IRS and Department of Treasury demonstrated "with reasonable specificity that disclosure of the information sought will serve the public interest.") Judicial Watch maintains that the D.C. Circuit's decision in Rossotti requires that the fee waiver be granted in this case as well. The government contends that the facts presented here justify a result different from the one reached in Rossotti. Specifically, the government points to the difference in subject matter Page 16 between the FOIA request in Rossotti and the FOIA request at issue here. The government also contends that the instant request is not as specific and targeted as that in Rossotti and does not adequately address how release of the documents will contribute to the public's understanding of the operations or activities of government. The Court disagrees.

  A requester's entitlement to a fee waiver under the public interest exception is determined by application of a four factor test: (1) whether the subject of the records sought concerns the agency's operations or activities; (2) whether the records sought likely will contribute to an understanding of the agency's operations or activities; (3) whether the records are likely to contribute to the general public's understanding of the agency's operations or activities; and (4) the significance of the contribution to the general public's understanding. See Judicial Watch, Inc. v. Rossotti, 326 F.3d at 1312.*fn2 Particularly relevant to an analysis of the third factor is how the requester intends to convey the information to the general public. See Id. at 1312; see also Judicial Watch, Inc. v. United States Department of Justice, 185 F. Supp.2d 54, 62 (D.D.C. Page 17 2002) (requester's ability and intention to convey or disseminate requested information to the public is significant).

  The Rossotti decision makes clear that Judicial Watch has satisfied the third factor, involving its expected dissemination of the FOIA information to the general public. In criticizing the government's claim that Judicial Watch had failed to state that it intended to disseminate the FOIA documents and how it intended to do so, the court in Rossotti responded:
In fact, however, the [FOIA request] letter not only explains that Judicial Watch's mission is obtaining information under FOIA, but also lists nine ways in which it communicates collected information to the public: press releases; a newsletter with a monthly circulation of over 300,000 copies nationwide; a website on which people can view copies of documents and that has logged up to 1,000,000 visitors in a single day; an "Infonet" list serve with over 60,000 subscribers who receive daily updates on Judicial Watch lawsuits, FOIA requests, and investigations; congressional testimony; a nationally syndicated news and information television show Judicial Watch helps to produce; a Judicial Watch-produced weekly radio program which airs nationwide on thirty-six radio stations and the Internet; appearances by Judicial Watch employees on television and radio programs; and conferences organized by Judicial Watch. Judicial Watch might have added that it will use these methods to publicize any information it obtains from this request, but the government points to nothing in FOIA, the IRS regulation, or our case law requiring such pointless specificity.
Judicial Watch, Inc. v. Rossotti, 326 F.3d at 1314; see also Judicial Watch, Inc. v. United States Department of Justice, 185 F. Supp.2d at 62. Judicial Watch's letter to FEMA in the instant case outlines an identical litany of means by which it publicizes information obtained through FOIA requests. See Treasury and FEMA Mot., Ex. 1 at 3-4. The third factor therefore is satisfied.

  With respect to the remaining three factors, Judicial Watch's FOIA request asks for documents that relate to: Page 18

 
1. [The] Bush Administration energy task force (the Energy Policy Development Group) and its deliberations.
2. Communications to and from the Bush Administration energy task force.
3. Communications between members of the task force and its administrators, Andrew Lundquist and Karen Knutson.
J.W. Compl., Ex. 1. Judicial Watch offers the following explanation regarding the public interest underpinning its request:
The American people should be made aware of the deliberations that constitute national energy policy proposals — especially in light of the power crisis in California and other parts of the nation.
* * *
[T]he public is always well served when it knows how government activities have been conducted — especially in times of crisis. Thus, we are convinced that the information requested will be meaningfully informative in increasing public understanding of energy policy deliberations. The secretive nature of the meetings thus far surely raises questions that we seek to answer.
J.W. Compl., Ex. 1 at 5.

  "In order to obtain a fee waiver, the requesting party has the burden of explaining with reasonable specificity how and why the disclosure of this particular information will serve the public interest." See Judicial Watch, Inc. v. United States Department of Justice, 185 F. Supp.2d at 61. Unlike the situation in Rossotti, which involved a FOIA request specifically targeted at information regarding whether the Commissioner of the IRS had awarded a government contract to a company he co-founded and in which he held stock, see Judicial Watch, Inc. v. Rossotti, 326 F.3d at 1313, the instant request involves a general inquiry relating to the Page 19 NEPDG and the national energy policy deliberations. See J.W. Compl., Ex. 1 at 1-2. The fact that Judicial Watch has framed its request in broad and general terms, however, does not mean that it has failed to meet its burden to justify a fee waiver under the public interest exception.

  Judicial Watch's fee waiver request specified the "identifiable operations or activities" of FEMA that are implicated by the request: FEMA's communications with and involvement in the NEPDG and the energy policy deliberations. See Judicial Watch, Inc. v. United States Department of Justice, 185 F. Supp.2d at 61. The request also "provide[s] details specific to this FOIA request indicating how the information sought will contribute to an increased public understanding of government operations or activities." Id. Judicial Watch explains that the documents released will contribute to a public understanding of the substance of the energy policy deliberations and the development of federal energy policy. See J.W. Compl., Ex. 1 at 5. Finally, it states that the information requested will contribute "significantly" to the public's understanding because there is no indication from the government that the documents requested are already available to the general public. See Judicial Watch, Inc. v. Rossotti, 326 F.3d at 1314. The Court has little trouble in concluding that the subject matter of Judicial Watch's request — the development of, and the deliberations going into the development of, national energy policy by the President, the Vice President and virtually every possibly relevant agency and department of the Executive Branch — is relevant to the public's understanding of government. In light of the court of appeals decision in Rossotti, the Court therefore concludes Page 20 that the remaining factors for granting a public interest exception have been satisfied and FEMA should have granted Judicial Watch's request for a fee waiver.*fn3

  2. Department of the Treasury

  "Requesters may seek judicial review of denials of fee waivers only after exhausting specified administrative remedies." Judicial Watch, Inc. v. Rossotti, 326 F.3d at 1310. A FOIA requester whose fee waiver is denied must exhaust administrative remedies prior to seeking judicial relief. See id.; Oglesby v. United States Department of the Army, 920 F.2d 57, 61-62 (D.C. Cir. 1990). If, however, "the agency fails to respond to a waiver request within 20 days, the requester is deemed to have constructively exhausted administrative remedies and may seek judicial review [immediately]." Public Citizen, Inc. v. Department of Education, 292 F. Supp.2d 1, 4 (D.D.C. 2003) (citing Judicial Watch, Inc. v. Rossotti, 326 F.3d at 1310). This follows from the FOIA's constructive waiver provision which provides that "[a]ny person making a request to any agency for records . . . shall be deemed to have exhausted his administrative remedies with respect to such request if the agency fails to comply with the applicable time limit provisions. . . ." 5 U.S.C. § 552(6)(C); see also Judicial Watch, Inc. v. United States Department of Energy, 191 F. Supp.2d at 140. The agency must determine within twenty days whether to comply with the request and must immediately notify the requestor of the Page 21 reasons for the determination and the right to appeal any adverse determination. See 5 U.S.C. § 552(a)(6)(A)(I).

  On April 24, 2001, Treasury received Judicial Watch's FOIA request, dated April 19, 2001, including its fee waiver request. See Treasury and FEMA Mot., Declaration of Alana Johnson ("Johnson Decl.") at ¶ 2 and Ex. A. On May 1, 2001, Treasury denied Judicial Watch's request for expedited processing of its FOIA request. See id., Declaration of John Hambour ("Hambour Decl.") at ¶ 4 and Ex. B. No administrative appeal of this decision was filed by Judicial Watch. See Johnson Decl. at ¶ 6. Judicial Watch filed suit on May 9, 2001. See Complaint.*fn4 On July 10, 2001, Treasury sought additional information about the FOIA fee waiver request and provisionally denied the fee waiver request. See id., Hambour Decl. at ¶ 5 and Ex. C. Judicial Watch did not reply. See Hambour Decl. at ¶ 6. On August 10, 2001, Treasury sent Judicial Watch a letter confirming the fee waiver denial and advising Judicial Watch of its right to appeal. Id. at ¶ 7. Judicial Watch did not file an appeal. Johnson Decl. at ¶ 6. Because Judicial Watch never contacted Treasury to make arrangement for payment of the required fees and never appealed the fee waiver denial, Treasury stopped processing the FOIA request. Id.

  Treasury argues that because Judicial Watch failed to exhaust its administrative remedies, its FOIA suit should be dismissed. See Treasury and FEMA Mot. at 9. Judicial Watch responds that it constructively exhausted its administrative remedies with respect to Treasury by Page 22 filing its lawsuit after the statutory exhaustion period had expired and before it received any substantive response from the Department of the Treasury. See Judicial Watch's Opposition to the Motion for Summary Judgment by Defendants Department of Treasury and Federal Emergency Management Agency ("Treasury and FEMA Opp.") at 5-6.

  The factual situation presented in Rossotti is virtually identical to that of the instant case. In Rossotti, plaintiff Judicial Watch filed a FOIA request with the Department of the Treasury on June 6, 2001 and sought a fee waiver in connection with its request. See Judicial Watch, Inc. v. Rossotti, 326 F.3d at 1311. On July 10, 2001, the Department of the Treasury requested additional information from Judicial Watch regarding its fee waiver request. Judicial Watch filed suit on July 25, 2001, never having responded to Treasury's letter. The district court concluded that Judicial Watch had failed to exhaust its administrative remedies because the July 10 letter from the Department of the Treasury was a substantive response, but the court of appeals reversed the district court's dismissal of the complaint. See Id. at 1311, 1315.*fn5

  The May 1, 2001 letter from the Department of the Treasury to Judicial Watch in this case says only that Judicial Watch's request for expedited processing was rejected and appealable. It makes no substantive response to the FOIA request or the fee waiver request, and states only that "every effort will be made to respond to your FOIA request by May 30, 2001." Hambour Decl., Ex. B. But May 30, 2001 was outside of the twenty-day statutory exhaustion Page 23 period. In any event, no further correspondence was received from Treasury until July 10, 2001. Hambour Decl. at ¶ 5. Judicial Watch therefore constructively exhausted its administrative remedies by filing suit; no appeal was necessary. See Judicial Watch, Inc. v. Rossotti, 326 F.3d at 1310; Public Citizen, Inc. v. Department of Education, 292 F. Supp. at 4. Defendant Department of the Treasury's motion for summary judgment on exhaustion grounds therefore must be denied.

  Because Judicial Watch constructively has exhausted its administrative remedies with respect to its FOIA request and its fee waiver request, it is appropriate for the Court to reach the issue of Judicial Watch's right to a fee waiver. See Judicial Watch, Inc. v. Rossotti, 326 F.3d at 1315 (reversing district court's dismissal of FOIA claim for failure to exhaust because the FOIA request did qualify for public interest exception). The FOIA request sent to Treasury was essentially identical to that sent to FEMA. As the Court has discussed above, the request letter to FEMA was sufficient to qualify Judicial Watch for the public interest fee waiver. Treasury therefore also is directed to grant Judicial Watch's request for a fee waiver.

  3. Department of the Interior

  DOI granted NRDC's fee waiver request with respect to NRDC's first three FOIA requests, but then denied NRDC's blanket fee waiver request with respect to NRDC's May 6, 2002 request, finding that it was "clear that not all records requested" would make a significant contribution to the understanding of the general public. Defendants Department of the Interior and Bureau of Land Management's Motion for Summary Judgment ("DOI and BLM Mot."), Declaration of Sue Ellen Sloca, Ex. K at 5. Specifically, DOI granted NRDC's fee waiver with Page 24 respect to all records other than "working level records meeting the threshold of exemption 5." Id. at 7. DOI contended that because the deliberative portions of the records sought would be withheld, releasing the non-exempt portions would "not make a significant contribution to the understanding of the general public." Id. (emphasis in original). DOI argues that its analysis in denying the fee waiver "properly focused on the informative value and relative contribution to the public's understanding of the expected disclosure, not on the purpose or objective of the request." DOI and BLM Mot. at 43 (emphasis in original).

  Under the FOIA, the agency bears the burden of justifying nondisclosure. See 5 U.S.C. § 552(a)(4)(B). It would be contrary to the express provisions of the FOIA to "invert the burden of proof" and force a plaintiff not only to demonstrate that it satisfies the public interest exception analysis and is entitled to a fee waiver, but also to demonstrate that the defendant agency's contemplated withholdings are not properly claimed. Project on Military Procurement v. Department of the Navy, 710 F. Supp. at 367. "A fee waiver request should be evaluated based on the face of the request and the reasons given by the requester in support of the waiver," not on the possibility that the records may ultimately be determined to be exempt from disclosure. Carney v. United States Department of Justice, 19 F.3d 807, 815 (2d Cir. 1994). While in some rare cases it may be reasonable for an agency to deny a fee waiver because the FOIA request is for "patently exempt documents," id., the Court is unconvinced in this case that NRDC's FOIA requests sought "patently exempt" documents.

  Furthermore, DOI has now conducted the requested search in light of NRDC's assurance of payment if the Court upholds DOI's fee waiver determination. See NRDC DOI Mot., Declaration of Sharon Buccino ("Buccino Decl.") at ¶¶ 46, 50. NRDC has already Page 25 received documents from its request that contributed to the public's understanding even prior to the litigation of the proper scope of Exemption 5. See Id. The Court thus concludes that DOI should have granted NRDC's fee waiver request, and DOI therefore is directed to grant NRDC's request for a fee waiver.

  C. Adequacy of Search

  Before it can obtain summary judgment in a FOIA case, an agency "must show, viewing the facts in the light most favorable to the requester, that . . . [it] `has conducted a search reasonably calculated to uncover all relevant documents.'" Steinberg v. United States Department of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994) (quoting Weisberg v. United States Department of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1985)). In determining the adequacy of a FOIA search, the Court is guided by principles of reasonableness. See Oglesby v. United States Department of the Army, 920 F.2d at 68; Int'l Trade Overseas, Inc. v. Agency for Int'l Development, 688 F. Supp. 33, 36 (D.D.C. 1988). While there is no requirement that an agency search every record system, see Truitt v. United States Department of State, 897 F.2d 540, 542 (D.D.C. 1990), or that a search be perfect, See Meeropol v. Meese, 790 F.2d 942, 955-56 (D.C. Cir. 1996), the search must be conducted in good faith using methods that are reasonably expected to produce the information requested if it exists. See Valencia-Lucena v. United States Coast Guard, 180 F.3d 321, 325-36 (D.C. Cir. 1999); Campbell v. United States Department of Justice, 164 F.3d 20, 27 (D.C. Cir. 1998).*fn6 Page 26

  1. "Agency Records"/Agency Employees Serving on Task Forces

  In this case, NRDC argues that the search of DOE and DOI records was inadequate and not "reasonably calculated to uncover all relevant documents" (1) because DOE purposefully excluded from its search the records of those DOE employees detailed to the Office of the Vice President and (2) because the Bureau of Land Management failed to search the records of Ronald Montagna, the DOI representative to the White House Task Force on Energy Project Streamlining. NRDC claims that both the DOE employees detailed to the Office of the Vice President and Mr. Montagna are agency employees and that their records therefore constitute "agency records" for FOIA purposes. According to the NRDC, it does not matter for this analysis that the employees were temporarily working outside of their agencies or that the records in question were not created or housed at their agencies.

  The FOIA provides that an agency may not improperly withhold "agency records." United States Department of Justice v. Tax Analysts, 492 U.S. 136, 142(1989). Two requirements must be met before materials will be considered to be "agency records." First, the agency must "either create or obtain" the documents "as a prerequisite to its becoming an `agency record' within the meaning of the FOIA." Id. at 144 (quoting Forsham v. Harris, 445 U.S. 169, 182 (1980)). Second the agency "must be in control of the requested materials at the time the FOIA request is made." Id. at 145. This means that the materials must have "come into the agency's possession in the legitimate conduct of its official duties." Id. Page 27

  With respect to the first prong of Tax Analysts, the relevant issue is whether an agency covered by the FOIA has either "created" or "obtained" the material sought. United States Department of Justice v. Tax Analysts, 492 U.S. at 146. In this regard, the B.C. Circuit has held that there is "no basis" in the FOIA or its legislative history to view an agency employee as "distinct from his [or her] department [or agency] for FOIA purposes." Ryan v. Department of Justice, 617 F.2d 781, 787 (D.C. Cir. 1980). Once an agency employee is determined to be such, he or she cannot be viewed as a non-agency employee "in selected contexts on a case-by-case basis." Judicial Watch, Inc. v. National Energy Policy Development Group, 219 F. Supp.2d 20, 39 (D.D.C. 2002), aff'd, 334 F.3d 1096 (B.C. Cir. 2003), cert. granted, 124 S.Ct. 958 (2003) (quoting Ryan v. Department of Justice, 617 F.2d at 788-89).

  As for the second prong of Tax Analysts — whether the agency is in control of the materials at the time of the FOIA request — the Supreme Court has noted that disputes over "control" should be infrequent because requested materials generally are in the agency's possession. United States Department of Justice v. Tax Analysts, 492 U.S. at 146 n.6. The Court in Tax Analysts declined to consider what the outcome would be if the materials were on loan to another agency or purposefully had been routed out of the agency to avoid a FOIA request. Id. It is clear, however, that the actual physical location of the documents is not dispositive; the issue is actual or constructive "control." See Ryan v. Department of Justice, 617 F.2d at 785 ("A simple possession standard would permit agencies to insulate their activities from FOIA disclosure by farming out operations to outside contractors."); see also Burka v. United States Department of Health and Human Services, 87 F.3d 508, 515 (B.C. Cir. 1996) (HHS had "constructive control" of data tapes in the possession of research firm). This case Page 28 presents one of those infrequent situations where the documents in question, although created or obtained by agency employees, are located elsewhere.

  The court of appeals recently reiterated the four factors that have been considered in determining whether an agency has sufficient "control" over a document to make it an "agency record":
(1) the intent of the document's creator to [either] retain or relinquish control over the records;
(2) the ability of the agency to use and dispose of the record as it sees fit;
(3) the extent to which agency personnel have read or relied upon the document; and
(4) the degree to which the document was integrated into the agency's records system or files.
United We Stand America, Inc. v. Internal Revenue Service, 359 F.3d 595, 599 (D.C. Cir. 2004) (quoting Burka v. United States Department of Health and Human Services, 87 F.3d at 515 (citations omitted)). This analysis has been used both in situations in which the agency has actual possession of a document that had been created elsewhere, see Tax Analysts v. United States Department of Justice, 845 F.2d at 1069, and those in which information created at the behest of the agency was neither created by the agency nor stored at the agency. See Burka v. United States Department of Health and Human Services, 87 F.3d at 515.

  In its most recent decision on the issue of control, a case involving an agency response to a congressional request for information, the court of appeals focused not on the four-factor test so much as on the first factor only, the creator's intent (in this case, the agency), in determining the scope of the term "agency record." United We Stand America, Inc. v. Internal Page 29 Revenue Service, 359 F.3d at 602-03. The court specifically focused on whether the materials "have come into the agency's possession in the legitimate conduct of its official duties" as determinative of the issue of "control," Id. at 602 (quoting United States Department of Justice v. Tax Analysts, 492 U.S. at 145), and noted that to provide blanket protection for documents created by an agency or its employees in responding to a congressional inquiry "would `exempt from FOIA's purview a broad array of materials otherwise clearly categorizable as agency records, thereby undermining the spirit of broad disclosure that animates the Act.'" Id. at 603 (quoting Paisley v. CIA, 712 F.2d 686, 696 (D.C. Cir. 1983)). So long as the agency or its employee creates a document "in the course of its official duties," it therefore remains an agency record. Id. at 602.

  a. Department of Energy

  NRDC argues that DOE improperly failed to search the records of Andrew Lundquist, a DOE employee who was detailed from DOE to the White House to serve as the NEPDG Executive Director and Chair of the NEPDG Working Group, and the other DOE employees who served as staff to the NEPDG. See NRDC DOE Mot. at 12.*fn7 DOE responds that the documents in question were not "agency records" for purposes of the FOIA. See DOE Opp. at 5. DOE maintains that while Mr. Lundquist was paid by DOE, he worked for the Office of the Vice President, he was not physically at DOE, and was not given any DOE assignments; furthermore, DOE never "obtained" any records he may have created or maintained while acting Page 30 as Executive Director of the NEPDG. See Id. Similarly, DOE argues, the other five employees assigned to NEPDG did not remove their NEPDG records, with the exception of two final reports, from the Office of the Vice President to DOE. See id.*fn8

  Andrew Lundquist was hired by DOE on February 1, 2001. On February 12, 2001, he was assigned to work in the Office of the Vice President. See Defendant Department of Energy's Reply in Support of Motion for Summary Judgment and Opposition to Plaintiff NRDC's Motion for Summary Judgment ("DOE Rep."), Declaration of Dr. Abraham Haspel ("Haspel Decl.") at ¶¶ 4-5. While assigned to the Office of the Vice President, it is asserted, Mr. Lundquist did not receive assignments from DOE and was not supervised on a day-to-day basis by DOE personnel. Mr. Lundquist maintained no office at DOE. Mr. Lundquist remained assigned to the Office of the Vice President until his resignation from DOE and from government on March 20, 2002. See Id. at ¶¶ 7-11. Throughout the entire period that he worked in the Office of the Vice President he was paid out of DOE appropriations. See DOE NRDC Rep. at 5. Page 31 DOE's declaration indicates that Mr. Lundquist neither maintained records at DOE nor left records at DOE when he resigned from the government. See Haspel Decl. at ¶ 11.*fn9

  Five other DOE employees also served as staff to the NEPDG: Kjerstan Drager, Karen Knutson, Elena Melchert, James Sims and Charles Smith. See DOE NRDC Rep., Second Declaration of Susan Beard ("Sec. Beard Decl.") at ¶¶ 4-8. They, too, were paid out of DOE appropriations. See DOE NRDC Rep. at 5. None of these employees worked on DOE controlled or administered work assignments during his or her detail to the Office of the Vice President. The only documents relating to their work that were brought to DOE were copies of the public NEPDG report. See Sec. Beard Decl. at ¶ 9. DOE indicates that it did not exercise authority over these individuals during their assignments to the Office of the Vice President and that they did not occupy offices at DOE during the term of their assignments. See Id. at ¶ 10.

  Despite DOE's arguments to the contrary, the Court concludes that the records of Mr. Lundquist and the other DOE employees who were detailed to the Office of the Vice President were "created or obtained" by DOE. As the court of appeals has noted, "the President has a choice between using his staff to perform a function and using an agency [employee] to perform it" and "[w]hile not always substantively significant, these choices are often unavoidably significant for FOIA purposes, because the Act defines agencies as subject to disclosure and presidential staff as exempt." Ryan v. Department of Justice, 617 F.2d at 789. It is inappropriate Page 32 to view an agency employee as distinct from the agency itself for FOIA purposes. See Id. at 787 (declining to distinguish between the Attorney General acting in his capacity as advisor to the President and in his capacity as head of the Department of Justice for FOIA purposes). The Office of the Vice President chose to borrow Department of Energy personnel to staff the NEPDG rather than to hire personnel for the Office of the Vice President or to use existing White House personnel. It follows from established case law that such persons remain agency employees subject to the FOIA. The citizens' right to know "what their government is up to," United States Department of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. at 773, cannot be defeated simply by detailing an agency employee to a task force operating out of the White House or some other non-agency.

  Furthermore, merely because an employee is not physically located at his or her agency of employment does not mean that the employee ceases to be an agency employee capable of creating records on the agency's behalf. See Burka v. United States Department of Health and Human Services, 87 F.3d at 515 (data tapes created by offsite firm were "created" by agency); Ryan v. Department of Justice, 617 F.2d at 785 (agencies cannot "insulate their activities from FOIA disclosure by farming out operations . . ."). The physical location in which the DOE employees create, generate, obtain or review records does not determine whether the records are agency records subject to the FOIA. See Ryan v. Department of Justice, 617 F.2d at 785.

  A more difficult question is posed by the second prong of the Tax Analysts test, whether the DOE had "control" of the records of Mr. Lundquist and the other agency employees at the time of the FOIA request. Clearly any records or files of Mr. Lundquist and the other staff Page 33 members that were at DOE at the time the FOIA requests were made are subject to the FOIA and must be searched. But most of the documents in question resided then and now in the Office of the Vice President and were not integrated into DOE's records system. See supra at 27-30.

  NRDC correctly notes that "control" is determined at the time the FOIA request is made, which in this case was April 26, 2001. See United States Department of Justice v. Tax Analysts, 492 U.S. at 145.*fn10 Mr. Lundquist and all of the other employees in question were still detailed to the Office of the Vice President at the time and were still working with the requested documents on NEPDG matters. See Haspel Decl. at ¶ 8; Sec. Beard Decl. at ¶¶ 4-8. The records in question therefore were in both the possession and the control of these DOE employees in the legitimate conduct of the employees' official duties, as of the date of the FOIA request. See United States Department of Justice v. Tax Analysts, 492 U.S. at 145; NRDC DOE Rep. at 11. Because these employees are not distinct from their agencies, see Ryan v. Department of Justice, 617 F.2d at 787, the documents thus were in the actual control of the agency employees and the constructive control of DOE. See Burka v. United States Department of Health and Human Services, 87 F.3d at 515. DOE's failure to search the records of these individuals therefore renders its search inadequate. DOE is directed to search the files of these individuals for responsive documents.

  b. Department of the Interior and Bureau of Land Management

  Ronald Montagna, an employee of the Department of the Interior, served on the White House Task Force on Energy Project Streamlining ("Streamlining Task Force") which was Page 34 under the chairmanship of the Council on Environmental Quality ("CEQ"). See Defendants' Reply in Support of DOI and BLM's Motion for Summary Judgment and Opposition to NRDC's Motion for Summary Judgment ("DOI and BLM Rep."), Declaration of Phillip A. Cooney ("Cooney Decl.") at ¶¶ 1, 6. The Streamlining Task Force was established pursuant to Executive Order 13212 to "work with and monitor federal agencies' efforts to expedite their review of permits or similar actions, as necessary, to accelerate the completion of energy-related projects, while maintaining safety, public health, and environmental protections" Id. at ¶ 3. The Streamlining Task Force consists of CEQ staff and staff from the agencies identified in the Executive Order. See Id. at ¶¶ 4-5. The government's declaration specifically identifies Mr. Montagna as the DOI representative to the Streamlining Task Force and explains:
An agency representative is an individual who, as a part of the regular responsibilities of his or her agency position is assigned to represent his or her employing agency as a member of an interagency task force, board, counsel or committee. Therefore, at all times during his or her assignment to [the Streamlining Task Force], each agency representative remains an employee of his or her agency and remains subject to the authorities and requirements of their employer agencies.
See Cooney Decl. at ¶ 15.*fn11

  In this situation, it is even clearer than in the circumstances where DOE employees were detailed to the Office of the Vice President that the documents were created or obtained by DOI.*fn12 It is undisputed that Mr. Montagna was acting as a DOI employee; the Page 35 government's own declaration specifically states that Mr. Montagna was acting as a DOI agency representative to the Streamlining Task Force. For the reasons previously discussed, the fact that the Streamlining Task Force is housed at the Department of Energy and the records generated through Mr. Montagna's work at the Streamlining Task Force are physically located at the Department of Energy offices used by the Streamlining Task Force is irrelevant. See DOI and BLM Rep. at 12-13. Thus, any records "obtained" or "created" by Mr. Montagna were records obtained or created by DOI. See supra at Section C(1)(a). The first requirement of Tax Analysts therefore is satisfied with respect to Mr. Montagna.

  The next question is whether DOI was in "control" of Mr. Montagna's records at the time of the FOIA request. See United States Department of Justice v. Tax Analysts, 492 U.S. at 145. Because Mr. Montagna was acting as a DOI agency representative while serving on the Streamlining Task Force, the Task Force materials that came into his possession did so "in the legitimate conduct of [his] official duties." See Id. Furthermore, like the DOE employees, discussed supra at Section C(1)(c), Mr. Montagna was still serving on the Streamlining Task Force at the time of NRDC's February 14, 2002 FOIA request.*fn13 Indeed, it appears that he continues to serve up to the present moment. His documents, therefore, are ...


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