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Center v. United States Department of Energy

United States District Court, District of Columbia

September 11, 2017

CLIMATE INVESTIGATIONS CENTER, Plaintiff,
v.
UNITED STATES DEPARTMENT OF ENERGY, Defendant.

          MEMORANDUM OPINION AND ORDER

          Amit P. Mehta United States District Judge.

         Plaintiff Climate Investigations Center requested information from Defendant Department of Energy under the Freedom of Information Act (“FOIA”) concerning the funding and development of the “Kemper Project, ” a power plant in Mississippi that uses “clean coal” technology. Defendant provided Southern Company, a private developer, with federal funding to construct the power plant and implement the new technology. Before the court are the parties' cross-motions for summary judgment, in which the parties dispute the adequacy of the search performed and the appropriateness of Defendant's decision to withhold certain materials responsive to Plaintiff's request.

         After thorough review of the record and the parties' briefs, the court concludes that summary judgment is not warranted because there remain material issues of fact concerning the adequacy of Defendant's search and the appropriateness of its withholdings pursuant to FOIA Exemptions 4 and 5. The dispute concerning Exemption 6, however, is moot, because the withheld material is publicly available. Accordingly, the court denies both motions for summary judgment.

         I. BACKGROUND

         In the early part of 2015, Dan Zegart, a senior investigator for Plaintiff Climate Investigations Center, submitted a request to Defendant Department of Energy for information regarding the funding, construction, and implementation of “clean coal” technology over a fourteen-year period at a particular power plant in Mississippi-an initiative known as the “Kemper Project.” See Pl.'s Cross-Mot. for Partial Summ. J., ECF No. 15 [hereinafter Pl.'s Cross-Mot.], Attach. 2, ECF No. 15-2 [hereafter Zegart Decl.], ¶ 1; Pl.'s Cross-Mot., Attach. 3, ECF No. 15-3 [hereinafter Pls.' Exs. A-L], at 1-7 (Exs. A & B). The Kemper Project is overseen, in part, by Defendant's subcomponent, National Energy Technology Laboratory (“NETL”), and being developed, in part, by Southern Company and Mississippi Power Company, a wholly owned subsidiary of Southern Company. See Def.'s Mot. for Summ. J., ECF No. 13 [hereinafter Def.'s Mot.], Attach. 1, ECF No. 13-1, ¶¶ 2, 5; Pl.'s Cross-Mot., Attach. 5, ECF No. 15-5, ¶¶ 2, 5. Defendant awarded Southern Company nearly $300 million to carry out work on the Kemper Project. Am. Compl., ECF No. 3 [hereinafter Am. Compl.], ¶¶ 16-17; Def.'s Answer, ECF No. 6, ¶¶ 16-17. Plaintiff's FOIA Request sought any and all communications relating to the “development, funding and/or construction and implementation of ‘clean coal' technology” at the Kemper Project, including details concerning the technology developed for the plant and the decision to build it in Kemper County, Mississippi. See Pls.' Exs. A-L at 1-7 (Exs. A & B).

         Plaintiff submitted its request directly to NETL, which began the search for responsive documents. See id.; Def.'s Mot., Attach. 3, ECF No. 13-3, at 1-16 [hereinafter Dunlap Decl.], ¶ 7. NETL's FOIA Officer, Ann C. Dunlap, determined that NETL's Gasification Technology Manager and Major Demonstrations Project Office were the places most likely to have responsive documents. Dunlap Decl. ¶¶ 1, 8-9, 14-15.

         On June 30, 2015, Plaintiff clarified that it sought six categories of documents.[1] Generally speaking, Plaintiff sought documents and records of communications from the period of January 1, 1998, to December 31, 2011, concerning (1) contacts or meetings between NETL and Southern Company, or entities related to Southern Company, about clean coal technology; (2) the research and development of clean coal technology at an NETL research facility in Wilsonville, Alabama; (3) the decision to move the Kemper Project site from Florida to Mississippi; and (4) any connections between the Kemper Project and a lobbying firm called the BGR Group. See Def.'s Mot., Attach. 4, ECF No. 13-4 [hereinafter Def.'s Mot., Attach. 4], at 13-17 (Ex. B).

         Early in its search, in August 2015, NETL contacted Defendant's Headquarters (“DOE Headquarters”) on the belief that DOE Headquarters had materials responsive to certain categories of documents in Plaintiff's request. See Def.'s Mot., Attach. 4, at 1-9 [hereinafter Morris Decl.], ¶ 10. DOE Headquarters, in turn, determined the Office of Fossil Energy was the agency subcomponent most likely to have records responsive to Plaintiff's request and directed that office to conduct a search for those materials. See Id. ¶¶ 12, 14. Staff at the Office of Fossil Energy both manually and electronically searched their files, collected all responsive materials therein, and submitted them to the Office of Information Resources (“OIR”) for review. Id. ¶¶ 18-19. OIR, in turn, reviewed the materials submitted, removed duplicate documents NETL already provided to Plaintiff, consulted with Southern Company to determine which portions of the documents could cause the company harm if disclosed, and redacted those portions of the responsive documents OIR believed were exempt from disclosure. Id. ¶¶ 20-22; Def.'s Opp'n to Pl.'s Cross-Mot. for Summ. J., ECF No. 18 [hereinafter Def.'s Opp'n], Attach. 3, ECF No. 18-3, at 1-3 [hereinafter Suppl. Morris Decl.], ¶¶ 7-10. In total, the Office of Fossil Energy released 75 records with some redactions. Morris Decl. ¶ 23.

         NETL began producing responsive materials shortly after receiving the clarified FOIA Request. Between July 7, 2015, and September 28, 2016, NETL sent Plaintiff at least six different sets of materials, though certain productions only came about after Plaintiff successfully administratively appealed the agency's invocation of particular FOIA exemptions from disclosure. See Dunlap Decl. ¶¶ 17-19, 21, 23-25, 27-32, 37-40. In making its productions, NETL consulted with DOE Headquarters regarding materials that pertained to the Office of the Secretary. See Id. ¶ 32. Additionally, because NETL's search identified documents that potentially implicated Southern Company's business interests, NETL consulted with Southern Company to evaluate how disclosure of certain responsive materials might harm the company. Id. ¶¶ 23, 41. Southern Company supplied the agency with its stance on the records' disclosure, but the agency independently determined whether withholding the document in full, in part, or not at all, was appropriate. See Def.'s Opp'n, Attach. 2, ECF No. 18-2, at 1-3 [hereinafter Suppl. Dunlap Decl.], ¶¶ 7-10. In total, NETL released several thousand pages of documents, many with redactions, to Plaintiff. See Dunlap Decl. ¶¶ 17, 19, 21, 23, 27, 32, 37-40 (describing multiple productions totaling more than six thousand pages).

         Dissatisfied with the productions and redactions, Plaintiff filed suit in this court. See Compl., ECF No. 1 (filed Jan. 26, 2016). Plaintiff's Amended Complaint challenges Defendant's search as inadequate and its redactions as unsupported by any exemption. See Am. Compl. ¶¶ 36-52. The parties submitted cross-motions for summary judgment that are now ripe for review. Defendant moves for summary judgment as to the adequacy of its search and all its withholdings under Exemptions 4, 5, and 6. See Def.'s Mot. Plaintiff seeks summary judgment on all issues except Defendant's reliance on Exemption 4, as to which Plaintiff believes material issues of fact remain. See Pl.'s Cross-Mot.

         II. LEGAL STANDARD

         On a motion for summary judgment, a court must enter judgment in favor of the moving party if that party “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). A dispute is “genuine” only if a reasonable fact-finder could find for the nonmoving party, and a fact is “material” only if it is capable of affecting the outcome of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court must view all the evidence in the light most favorable to the nonmoving party. See Id. As a general matter, “[i]n FOIA cases, an agency defendant may be entitled to summary judgment if it can demonstrate that (1) no material facts are in dispute, (2) it has conducted an adequate search for responsive records, and (3) each responsive record that it has located has either been produced to the plaintiff, is unidentifiable, or is wholly exempt from disclosure.” Mattachine Society of Wash., D.C. v. U.S. Dep't of Justice, No. 16-773, 2017 WL 3251552, at *2 (D.D.C. July 28, 2017).

         An agency performs an “adequate search” and may be awarded summary judgment when it performs a search “reasonably calculated to uncover all relevant documents.” Oglesby v. U.S. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). The agency bears the burden of proving that it performed an adequate search, and it may rely on sworn affidavits or declarations to make that showing. See SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991). The court may grant summary judgment to the agency based on those materials if they are reasonably specific and contradicted by neither other record evidence nor evidence of agency bad faith. See Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); Beltranena v. Clinton, 770 F.Supp.2d 175, 181-82 (D.D.C. 2011). FOIA plaintiffs can rebut an agency's declarations and affidavits by demonstrating, with “specific facts, ” that there remains a genuine issue as to whether the agency performed an adequate search for documents responsive to the plaintiff's request. See Span v. U.S. Dep't of Justice, 696 F.Supp.2d 113, 119 (D.D.C. 2010) (internal quotation marks omitted). The court will not grant summary judgment if “review of the record raises substantial doubt [as to the adequacy of the search], particularly in view of well defined requests and positive indications of overlooked materials.” Aguiar v. DEA, 865 F.3d 730, 738 (D.C. Cir. 2017) (internal quotation marks omitted).

         The agency also bears the burden of proving that it properly withheld certain materials responsive to a plaintiff's FOIA request pursuant to an exemption from disclosure. Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice, 746 F.3d 1082, 1088 (D.D.C. 2014). Once more, the agency may rely on affidavits and declarations to make this showing. “If the agency's affidavits ‘provide specific information sufficient to place the documents within the exemption category, if this information is not contradicted in the record, and if there is no evidence in the record of agency bad faith, then summary judgment is appropriate without in camera review of the documents.'” Am. Civil Liberties Union v. U.S. Dep't of Def., 628 F.3d 612, 626 (D.C. Cir. 2011) (quoting Larson v. U.S. Dep't of State, 565 F.3d 857, 870 (D.C. Cir. 2009)).

         III. DISCUSSION

         Plaintiff challenges Defendant's response to its FOIA Request on two grounds: (1) the search Defendant performed was inadequate; and (2) Defendant improperly relied on Exemptions 4, 5, and 6 to withhold responsive documents. The court addresses each contention in turn.

         A. Adequacy of the Search

         Plaintiff claims that Defendant's search was inadequate because Defendant did not separately search the Office of the Secretary or use proper search terms when searching the Office of Fossil Energy. Specifically, Plaintiff argues that Defendant should have conducted a standalone search of the Office of the Secretary because the materials Defendant produced included documents and correspondence originating from that Office, which indicates additional responsive records could be found there. See Pl.'s Cross-Mot., Attach. 1, ECF No. 15-1 [hereinafter Pl.'s Mem.], at 26-27. Additionally, Plaintiff submits that Defendant needed to use “the names of Southern Company officers involved in the deal with DOE, email domains from Southern Company or Mississippi Power, or even the name of the plant” as search terms when locating responsive material within the Office of Fossil Energy. Id.

         Defendant submits that FOIA did not require it to search the Office of the Secretary or employ other search terms when searching the Office of Fossil Energy. Regarding a search of the Office of the Secretary, Defendant cites the declarations of Alexander Morris, the FOIA Officer at DOE Headquarters, and Ann Dunlap, the FOIA Officer at NETL, to support its position that a separate search was unnecessary because it would be duplicative of prior searches. Specifically, Defendant explains, the declarations show that the “the Office of Fossil Energy at DOE HQ searched for executive correspondence within the Office of the Executive Secretariat, which would have captured any and all communications involving the Office of the Secretary regarding the Kemper project, ” and “NETL too conducted a search that captured communications with the Office of the Secretary.” Def.'s Opp'n at 13. Regarding the adequacy of the search terms used to search the Office of Fossil Energy, Defendant cites Mr. Morris' declaration and notes that the Office of Fossil Energy did search for “Kemper, ” the name of the plant, as well as all the other search terms Plaintiff requested. Id. at 14-15.

         The court first concludes that Defendant was not obligated to use additional or alternative search terms when searching the Office of Fossil Energy. As a general matter, a plaintiff cannot dictate the search terms an agency must use to identify responsive records, and when an agency's search terms are “reasonably calculated to lead to responsive documents, a court should neither ‘micromanage' nor second guess the agency's search.” Bigwood v. U.S. Dep't of Defense, 132 F.Supp.3d 124, 140 (D.D.C. 2015). Here, Defendant directed the Office of Fossil Energy to search for materials responsive to the fifth and sixth categories of documents in Plaintiff's clarified FOIA Request-documents pertaining to the decision to build the plant in Kemper County and communications with the BGR Group, including Haley Barbour, Ed Rogers, Lanny Griffith, and Bob Wood, regarding the Kemper Project. See Def.'s Mot., Attach. 4, at 13-17 (Ex. B). Defendant has submitted a declaration explaining that staff at the Office of Fossil Energy “conducted an automated search of their e-mail accounts” by searching for “‘Kemper'; ‘Kemper and Relocate'; [‘]BGR'; ‘Barbour'; ‘Rogers'; ‘Griffith'; and ‘Wood'” and “an automated search of the executive correspondence records” by searching for “‘@bgrdc.com'; ‘BGR'; ‘Kemper'; and ‘Mississippi.'” Morris Decl. ¶ 18. That declaration, in specific and clear terms, establishes that Defendant employed appropriate search terms. It reflects that Defendant selected search terms reasonably calculated to capture records responsive to Plaintiff's FOIA Request by searching for (1) the name of the power plant, (2) the name of the power plant in conjunction with its site relocation, (3) the name of the consulting group that purportedly met with government officials concerning the plant's relocation, and (4) the individual names of four members of the consulting group. In proffering that declaration, Defendant has met its burden; second-guessing what other terms the agency could have used would be inappropriate. See Bigwood, 132 F.Supp.3d at 140.

         It remains unclear, however, whether Defendant was required to search the Office of the Secretary in order to perform an adequate search. First, the declarations Defendant submitted do not support its contention that performing a separate search of the Office of the Secretary would be duplicative of its prior searches. Although Defendant cites Mr. Morris' declaration to support its statement that the Office of Fossil Energy searched the Office of the Executive Secretariat (which would have reached responsive records in the Office of the Secretary), Mr. Morris' declaration itself references neither the Office of the Executive Secretariat nor the Office of the Secretary. See Def.'s Opp'n at 13 (citing Morris Decl. ¶ 18). And, while Ms. Dunlap's declaration mentions that Defendant produced documents prepared for the Secretary of Energy, it does not reference an “Office of the Executive Secretariat, ” let alone explain how searching that office would produce documents contained in the Office of the Secretary. See Dunlap Decl. ¶ 32 (cited in Def.'s Opp'n at 13). Indeed, Ms. Dunlap's declaration indicates that responsive materials involving the Office of the Secretary exist, which means additional responsive records could exist, as well. See Id. (explaining that NETL produced documents “involv[ing] the Office of the Secretary”). Thus, after locating responsive records involving the Office of the Secretary, Defendant needed either to search that Office or explain in a detailed affidavit or declaration why such a search would have been fruitless or redundant. Cf. Aguiar, 865 F.3d at 738-39 (explaining that, for summary judgment to be appropriate, an agency's affidavit must describe not only the search the agency undertook, but also why the only reasonable place to look for responsive materials was the place searched); Coleman v. DEA, 134 F.Supp.3d 294, 301 (D.D.C. 2015) (explaining that an agency is not free to ignore “clear leads that may indicate other offices that should have been searched” (alterations adopted) (internal quotation marks omitted)). Defendant did not do either. Accordingly, there remains a material issue of fact as to whether Defendant performed an adequate search without separately searching the Office of the Secretary.

         Given that a material issue of fact remains as to the adequacy of Defendant's search, an entry of summary judgment is not warranted for either party. The court will permit Defendant to supplement the record and renew its motion on this issue. When doing so, Defendant either can conduct a search of the Office of Secretary for responsive material or submit facts explaining (1) the organizational and record-keeping relationships, if any, among the Office of the Executive Secretariat, Office of the Secretary, NETL, and Office of Fossil Energy; and (2) why NETL's and the Office of ...


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