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Judicial Watch, Inc. v. Department of Navy

United States District Court, District of Columbia

March 17, 2014

JUDICIAL WATCH, INC., Plaintiff,
v.
DEPARTMENT OF THE NAVY, Defendant

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[Copyrighted Material Omitted]

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For JUDICIAL WATCH, INC., Plaintiff: Jason B. Aldrich, Paul J. Orfanedes, JUDICIAL WATCH, INC., Washington, DC.

For DEPARTMENT OF THE NAVY, Defendant: Mary Elizabeth Stratton, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.

OPINION

KETANJI BROWN JACKSON, United States District Judge.

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MEMORANDUM OPINION

Defendant Department of the Navy (" Defendant" or " Navy" ) entered into a contract for renewable energy with a company called SunPower Corporation (" SunPower" ) in the fall of 2011. Presently before the Court are cross-motions for summary judgment stemming from a request that Plaintiff Judicial Watch, Inc. (" Plaintiff" ) submitted to the Navy under the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552, seeking documents relating to that contract. Since the filing of the complaint on February 1, 2012, the parties have worked diligently to narrow the scope of their dispute, and have succeeded such that there is now only one narrow issue for this Court to decide: whether Defendant properly redacted the names of the individual agency employees who signed an internal memorandum endorsing the contract. Because the Court finds that it lacks sufficient information to determine whether these names are exempt from disclosure under Exemption 6 of FOIA, Defendant's motion for summary judgment is DENIED without prejudice, and Plaintiff's cross-motion for summary judgment is DENIED without prejudice as well. Both parties will have an opportunity to file motions consistent with the analysis provided below. A separate order consistent with this Opinion will issue.

I. BACKGROUND

On September 30, 2011, the Navy entered into contracts for renewable energy with five companies, including SunPower. (Def.'s Statement of Material Facts Not in Genuine Dispute (" Def.'s Facts" ), ECF No. 18, ¶ 1.) The SunPower contract provided that the Navy would " purchase a minimum amount of renewable generated electricity, up to a maximum of 35,000,000 kwh, per year for 20 years from SunPower." ( Id. ¶ 18.) Under the terms of the contract, the Navy is required to " pay SunPower for the renewable generated electricity that it supplies, up to the maximum of 35,000,000 kwh per year" ; however, " [i]f SunPower cannot supply the renewable generated electricity it will not be paid." ( Id. )

An unidentified Navy employee holding the title " Source Selection Authority" (" SSA" ) was ultimately responsible for the decision to enter into the contract with SunPower. ( Id. ¶ ¶ 14-16.) In making this decision, the SSA had assistance from a Source Selection Board (" SSB" ), which is a team of agency employees that is responsible for " evaluat[ing] proposals[] submitted in response to a solicitation for renewable generated electricity, and ma[king] recommendations to the SSA as to which offerors should be awarded contracts." ( Id. ¶ 16.)[1] The SSA has the authority to " accept, change, or reject [an] SSB's recommendation." ( Id. ¶ 15.) In the case of the particular contract at issue here, the SSA ultimately adopted the SSB's recommendation and entered into the renewable energy contract with SunPower. ( Id. ¶ 16.)

On October 21, 2011, several weeks after the contract was signed, Plaintiff sent a FOIA request to the Department of the Navy seeking information regarding the contracting process. (Complaint

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(" Compl.), ECF No. 1, ¶ 5.) Specifically, Plaintiff's request included:

A. Any and all records regarding[,] concerning or related to the $100,268,000 firm-fixed-price task order awarded to SunPower, Inc. on September 30, 2011 (ref. Contract Number N62583-10-D-0030, Task Order 0002).
B. Any and all records of communication between any official, officer or employee of the Department of the Navy and any official officer or employee of any other government agency, department or office regarding, concerning or related to the aforementioned task order.
C. Any and all records of communications between any official, officer or employee of the Department of the Navy and any officer, employee or representative of Lang, Hansen, O'Malley and Miller, a government relations firm headquartered in Sacramento, CA.

( Id. ¶ 5; Def.'s Facts ¶ 1.) After sending this FOIA request, Plaintiff received a letter of acknowledgement dated October 25, 2011, but the " letter did not state when Plaintiff could expect to receive a substantive response[.]" (Compl. ¶ 6.) Between October 25, 2011, and November 2, 2011, Defendant twice redirected Plaintiff's FOIA request, eventually assigning it to the Naval Facilities Engineering Command (" NAVFAC" ) in Port Hueneme, CA. ( Id. ¶ ¶ 7-9.) During this time, Plaintiff received three more acknowledgment letters from Defendant, but none of these letters specified when Plaintiff could expect a substantive response to its request. ( Id. ) Plaintiff therefore filed the instant complaint in this Court on February 1, 2012, noting that " [o]ther than to acknowledge receipt of the request and inform Plaintiff that its request was being processed, Defendant has failed to respond to the request in any manner." (Compl. ¶ 11)

After Plaintiff filed its complaint, Defendant produced two sets of documents responsive to Plaintiff's FOIA request. ( See Joint Status Report, ECF No. 14, ¶ 3.) First, on May 31, 2012, Defendant sent Plaintiff a letter enclosing 120 pages of responsive documents. ( Id. ; Def.'s Facts ¶ 3.) Then, on July 2, 2012, Defendant provided a second batch of documents. (Def.'s Facts ¶ 5; see also Joint Status Report ¶ 3.) Among these documents were certain pages from a document dated December 17, 2009, and called a Business Clearance Memorandum (" Memorandum" ), which " explained how NAVFAC evaluated 12 proposals that were submitted in response to a solicitation that NAVFAC had issued for renewable electricity, why NAVFAC awarded a multiple award contract to five of the 12 offerors, and why it also awarded task orders to three of the five offerors." (Def.'s Facts ¶ 5.) Defendant provided eighteen pages of the Memorandum to Plaintiff, including a signature page " containing the names and signatures of the four persons who prepared, reviewed, or approved" the Memorandum. ( Id. ¶ 6; see also Def.'s Mot. for Summ. J., Ex. C, ECF No. 18-4.) Defendant withheld an additional 146 pages from the Memorandum on the grounds that these pages were not responsive to Plaintiff's FOIA request. (Def.'s Facts ¶ 11.)

On July 24, 2012, Plaintiff sent Defendant an email requesting, among other things, that Defendant produce the remaining 146 pages of the Memorandum. ( Id. ¶ 10.) After reviewing the email, on August 24, 2012, Defendant provided a third set of documents comprised of six additional pages of the Memorandum, including " signatory pages for the members of the Source Selection Board (SSB)." ( Id. ¶ ¶ 13-14.) The six pages included two

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different signatory pages, which are " essentially duplicates, except that [one page] does not contain any actual signatures (just the names of the SSB members) while [the other page] contains three signatures and signing dates, as well as the names of the SSB members[.]" ( Id. ¶ 14.) Significantly, although Defendant provided these signature pages, it redacted the names and signatures of the SSB members that appeared on the pages. In a cover letter sent with the six additional pages, Russell Spindler (" Spindler" ), counsel to NAVFAC, asserted that the names were redacted pursuant to FOIA Exemption 6. ( Id. ¶ 19.) After Defendant had produced these records, the parties stipulated that only the release of the names on the two sets signature pages remained in dispute. (Stipulation, ECF No. 16, at 1.)

On November 30, 2012, Defendant filed the instant motion for summary judgment, arguing that the names were exempt from disclosure under FOIA Exemption 6. As explained in more detail below, Spindler's cover letter and Defendant's summary judgment motion and memorandum argued only that the names were exempt from disclosure pursuant to Exemption 6, but Defendants also attached a declaration from Spindler that stated that the names were also exempt from disclosure under FOIA Exemption 5. Plaintiff filed an opposition and cross-motion for summary judgment on December 21, 2012, arguing that neither Exemption 5 nor Exemption 6 authorized redaction of the ...


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