United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
P. Mehta United States District Judge.
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.
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.
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).
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.
30, 2015, Plaintiff clarified that it sought six categories
of documents. 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).
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.
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).
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.
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).
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).
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)).
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.
Adequacy of the Search
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.
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.
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
‘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
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.
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