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Taylor Energy Co. LLC v. United States Department of Interior

United States District Court, District of Columbia

September 21, 2017

TAYLOR ENERGY COMPANY LLC, Plaintiff,
v.
UNITED STATES DEPARTMENT OF THE INTERIOR, BUREAU OF OCEAN ENERGY MANAGEMENT; BUREAU OF SAFETY AND ENVIRONMENTAL ENFORCEMENT; UNITED STATE DEPARTMENT OF HOMELAND SECURITY; and UNITED STATES COAST GUARD, Defendants.

          MEMORANDUM OPINION

          BERYL A. HOWELL CHIEF JUDGE

         The plaintiff, Taylor Energy Company, LLC, a Louisiana limited liability company that has been engaged in the exploration, development, and production of oil and gas in the Gulf of Mexico, Compl. ¶ 4, ECF No. 1, initiated this action against the United States Department of the Interior (“DOI”), DOI's components, the Bureau of Ocean Energy Management (“BOEM”) and Bureau of Safety and Environmental Enforcement (“BSEE”), the Department of Homeland Security (“DHS”), and DHS's component, the United States Coast Guard (“USCG”), pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. The plaintiff challenges the defendants' responses to a FOIA request seeking records that formed the basis for statements posted on BSEE's website concerning the plaintiff's response to an incident on the plaintiff's former oil platform in the Gulf of Mexico, about which incident the plaintiff is engaged in ongoing litigation with the United States Government. Pending before the Court are the defendants' motion for summary judgment and the plaintiff's cross-motion for summary judgment. See generally Defs.' Mot. Summ. J. (“Defs.' Mot.”), ECF No. 32; Pl.'s Cross-Mot. Summ. J. (“Pl.'s Cross-Mot.”), ECF No. 34. For the reasons set out below, the defendants' motion is granted, and the plaintiff's motion is denied.

         I. BACKGROUND

         Summarized below is the factual background underlying the plaintiff's FOIA request and review of the defendants' responses to the FOIA request.

         A. 2004 INCIDENT AT PLAINTIFF'S OIL PLATFORM

         The plaintiff submitted a FOIA request in August 2015 for agency records regarding statements that BSEE posted on its website three months earlier, in May 2015, concerning the plaintiff's ongoing response to a 2004 incident that had occurred at the plaintiff's former oil platform, called “MC20, ” in the Gulf of Mexico. Defs.' Mot., Attach. 1, Defs.' Stmt. of Material Facts (“Defs.' SMF”) ¶¶ 1-2, ECF No. 32-1; id., Attach. 2, Decl. of Sean R. Gajewski, Attorney, Coast Guard Judge Advocate General's Office of Claims and Litigation (“USCG Decl.”), Ex. A, ECF No. 32-2. The plaintiff was considered the “responsible party” in the incident, which “result[ed] from damage to the oil production platform and 25 connected wells during Hurricane Ivan.” Defs.' Mot., Attach. 4, Decl. of Karen Miller, Chief, FOIA/Records Office, Gulf of Mexico Region (“GOMR”), BSEE (“BSEE Decl.”), Ex. A at 7, ECF No. 32-4. The plaintiff has since collaborated with the defendant agencies, each of which has jurisdiction over the response to the events at ¶ 20. See Id. Together, the plaintiff, BSEE, BOEM, and USCG have “worked continuously” under a Unified Command (“UC”) to prevent and control the discharge, improve the effectiveness of containment around the leaking oil, and mitigate environmental impacts.” Id.

         In the years since the spill, the plaintiff has been involved in the site clearance and decommissioning of the MC20 “A” platform and twenty-five wells that were buried in 2004 as a result of a massive mudslide during Hurricane Ivan.[1] See Reply Supp. Defs.' Mot. Summ J. & Defs.' Opp'n Pl.'s Cross-Mot. Summ. J. & (“Defs.' Reply”), Attach. 3, Suppl. Decl. of Karen Miller, Chief, FOIA/Records Office, GOMR (“BSEE Suppl. Decl.”) ¶ 16, ECF No. 37-3. To cover the costs of site clearance and decommissioning, the plaintiff, in 2008, put $666, 000, 000 into trust, with an agreement that “allocated specific amounts of money from the trust to be used to reimburse Taylor Energy for expenses incurred in the decommissioning of the MC-20 site, including the plugging and abandonment of wells.” Id. ¶¶ 16-17. In 2014, sixteen wells remained unplugged and $433, 000, 000 remained in the trust fund. Id. At that time, the plaintiff “submitted a departure request from intervention well and decommissioning requirements at 30 C.F.R. §§ 250.1710-250.1717” covering the sixteen wells that had not yet been plugged because the wells had “little or no potential to flow, and . . . it was technically infeasible to drill any additional wells.” Id. ¶ 18.

         After submitting the departure request, the plaintiff asked BSEE to “consider returning some or all of the remaining trust fund money to Taylor.” Id. ¶ 19. BSEE sought legal counsel from the Department of Justice (“DOJ”) in connection with the plaintiff's request and to respond to DOJ's request for information from BSEE “in the context of this attorney-client relationship, ” BSEE drafted a seven-page April 3, 2015 memorandum that was used by BOEM, BSEE, and the agencies' lawyers. Id. ¶ 20; Defs.' Reply, Attach. 2, Suppl. Decl. of Natasha Alcantara, FOIA Officer, BOEM (“BOEM Suppl. Decl.”) ¶ 11, ECF No. 37-2. In particular, BSEE's Regional Director, GOMR, Lars Herbst, drafted the memorandum with help from DOI's Office of the Solicitor (“SOL”). BSEE Suppl. Decl. ¶ 21. “[I]n its final form, ” the memorandum, entitled “Taylor Energy Company LLC, Mississippi Canyon Block 20 - BSEE's Considerations for Revision of Taylor Energy's Trust Agreement, ” was approved by BSEE Director Brian Salerno “to inform discussions between BSEE and DOJ, ” and “Director Salerno's Office sent this memorandum to DOJ on April 3, 2015.” Id. ¶¶ 16, 21.

         Later in April, BOEM officials received a “BSEE memorandum dated April 3, 2015, ” with the same author, Mr. Herbst, and title as the aforementioned memorandum, that had been sent by “an attorney in [SOL] in order to inform BOEM's feedback on [a] draft 20-point document” addressing the plaintiff's requests. BOEM Suppl. Decl. ¶¶ 6, 11-12, Ex. A. On May 11, 2015, BSEE sent the plaintiff “a final decision denying Taylor's departure request.” BSEE Suppl. Decl. ¶ 22, Ex. D. “Shortly thereafter, Taylor was informed that trust funds would not be returned at that time.” Id. ¶ 22. A few months later, on January 4, 2016, the plaintiff sued the United States in the Court of Federal Claims for breach of the trust agreement and for breach of “its obligation of good faith and fair dealing by refusing to direct release to Taylor of the funds remaining in the trust account.” See BSEE Suppl. Decl. ¶ 23 (citing Taylor Energy Co. v. U.S., 1:16-cv-12).[2]

         B. PLAINTIFF'S FOIA REQUEST

         Around the time of BSEE's denial of the plaintiff's departure request, in May of 2015, BSEE posted material on its website concerning the incident at ¶ 20, including a “Joint DOI-USCG Statement” pertaining to the “Taylor Energy/Mississippi Canyon 20 (MC20) Oil Discharge, ” and links to two documents named “Taylor Energy Oil Discharge at ¶ 20 Site and Ongoing Response Efforts” and “Taylor Energy U.S. Coast Guard Fact Sheet.” Compl. ¶ 20; BSEE Decl., Ex. A. After learning of these online materials, the plaintiff filed identical FOIA requests with BSEE, BOEM and USCG, on August 3 and 4, 2015. USCG Decl., Ex. A; Defs.' Mot., Attach. 3, Decl. of Natasha Alcantara, FOIA Officer, BOEM, Ex. A (“BOEM Decl.”), ECF No. 32-3; BSEE Decl., Ex. A. This FOIA request had three parts. The first part sought “all studies, analyses, memorandum, and correspondence between and among the United States Department of the Interior, BSEE, BOEM and the USCG that support” four enumerated statements on the BSEE website. Defs.' Mem. Supp. Mot. Summ. J. (“Defs.' Mem.”) at 1.[3] The second part of the FOIA request sought “all correspondence (emails, letters, faxes and any other correspondence) relating to” a statement about a joint aerial observation workshop that the UC led in August 2014, with a specific request for documentation about the methodology used to estimate the quantity and rate of discharge. Defs.' Mem. at 2.[4] Finally, the third part of the FOIA request sought “all correspondence, and FOIA-related correspondence (emails, letters, faxes and any other correspondence) relating to Taylor or MC20 between the USCG and the Associated Press and Michael Kunzelman.” Id.

         All three agencies responded to the plaintiff's FOIA request. BOEM responded, on September 8, 2015, stating that it anticipated a delay in responding. BOEM Decl., Ex. D. at 2-3. BSEE produced, on October 7, 2015, a partial response totaling 188 pages, including 69 documents in full, BSEE Decl. ¶ 19, and, on November 10, 2015, acknowledged the plaintiff's request for an update on further production, without providing any timeline for further production, BSEE Decl., Ex. F. The USCG produced, on November 12, 2015, an interim response of 249 pages of documents, which response the plaintiff appealed on December 11, 2015. USCG Decl. ¶¶ 13, 16. “[D]ue to Defendants' failure to timely respond to Taylor's requests and failure to timely respond to Taylor's appeals, ” the plaintiff filed the instant suit. Compl. ¶ 2.

         C. THE FOIA LAWSUIT

         The plaintiff filed this FOIA lawsuit on February 25, 2016, to compel the defendants to produce the requested records or declare that no such documents exist, and provide a final determination on the plaintiff's FOIA requests. Compl. at 13. The plaintiff also sought relief under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 et seq.-a claim that this Court has since dismissed.[5] At the time that the plaintiff filed the instant lawsuit, the agencies were still in the process of searching for responsive records. See BOEM Decl. ¶¶ 31-35; BSEE Decl. ¶¶ 14-21; USCG Decl. ¶¶ 6-29. During that process, BSEE provided the plaintiff with an opportunity to narrow its request in an effort to “expedite the bureau's response.” BSEE Decl. ¶ 23. The plaintiff agreed to narrow the first part of the FOIA request, as reflected by the bold language, to “produce all studies, analyses, memorandum, and correspondence upon which the author or authors of the Joint DOIA-USCG statements relied in stating” the four specific statements from the website. BSEE Decl., Ex. J at 1-2 (emphasis in original).[6] The plaintiff now challenges the adequacy of BSEE's search with respect to this narrowed first part of the FOIA request.

         The agencies each completed their responses to the plaintiff's FOIA requests during 2016. See BOEM Decl. ¶¶ 37-38 (describing BOEM productions on April 6, 2016 and May 24, 2016); BSEE Decl. ¶¶ 27-31 (describing BSEE productions on November 4, 2016 and November 17, 2016); USCG Decl. ¶ 39 (describing USCG productions on September 13, 2016); see generally Defs.' SMF (describing agency searches leading to productions). BOEM produced a total of five documents responsive to the FOIA request, including eleven pages in full and two redacted pages, and withheld 163 responsive documents under Exemption 5. See BOEM Decl. ¶¶ 36-37; see also id., Ex. E-F. BSEE produced a total of 15, 377 pages of responsive material, BSEE Decl. ¶ 28, including a number of documents already in the plaintiff's possession, id. ¶¶ 25-26. BSEE withheld in full or in part: 47 documents, totaling 596 pages, under Exemption 5; two documents, totaling sixteen pages, under both Exemptions 5 and 9; and two documents, totaling eight pages, under Exemption 6. Id. ¶ 27. The USCG produced 473 pages of responsive documents, USCG Decl. ¶ 35, and withheld 359 pages, in full, and 153 pages, in part, id. ¶ 34. In sum, the defendants produced to the plaintiff over 15, 000 pages of responsive records.

         The plaintiff now disputes the adequacy of BSEE's search with respect to the narrowed first part of the FOIA request and the invocation by BSEE and BOEM of FOIA of Exemption 5 to withhold, in full or part, five documents.[7] Those five documents are drafts of the April 3, 2015 memorandum related to the plaintiff's request for departure and return of trust funds, and parts of transmittal emails.

         II. LEGAL STANDARD

         Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted “if the movant 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). “In FOIA cases, ‘summary judgment may be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.'” Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013) (quoting Consumer Fed'n of Am. v. U.S. Dep't of Agric., 455 F.3d 283, 287 (D.C. Cir. 2006)). Indeed, the D.C. Circuit has observed that “the vast majority of FOIA cases can be resolved on summary judgment.” Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011).

         The FOIA was enacted “to promote the ‘broad disclosure of Government records' by generally requiring federal agencies to make their records available to the public on request.” DiBacco v. U.S. Army, 795 F.3d 178, 183 (D.C. Cir. 2015) (citing U.S. Dep't of Justice v. Julian, 486 U.S. 1, 8 (1988)). Reflecting the necessary balance between the public's interest in governmental transparency and “legitimate governmental and private interests that could be harmed by release of certain types of information, ” United Techs. Corp. v. U.S. Dep't of Def., 601 F.3d 557, 559 (D.C. Cir. 2010), the FOIA contains nine exemptions, set forth in 5 U.S.C. § 552(b), which “are explicitly made exclusive and must be narrowly construed, ” Milner v. U.S. Dep't of Navy, 562 U.S. 562, 565 (2011) (internal quotation marks and citations omitted); see also Murphy v. Exec. Office for U.S. Attys., 789 F.3d 204, 206 (D.C. Cir. 2015); Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice (CREW), 746 F.3d 1082, 1088 (D.C. Cir. 2014); Pub. Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865, 869 (D.C. Cir. 2010). “[T]hese limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act.” Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976).

         In litigation challenging the sufficiency of “the release of information under the FOIA, ‘the agency has the burden of showing that requested information comes within a FOIA exemption.'” Pub. Citizen Health Research Grp. v. Food & Drug Admin., 185 F.3d 898, 904 (D.C. Cir. 1999) (quoting Niagara Mohawk Power Corp. v. U.S. Dep't of Energy, 169 F.3d 16, 18 (D.C. Cir. 1999)); see also U.S. Dep't of Justice v. Landano, 508 U.S. 165, 171 (1993) (noting that “[t]he Government bears the burden of establishing that the exemption applies”); Fed. Open Mkt. Comm. of Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 352 (1979) (finding that the agency invoking an exemption bears the burden “to establish that the requested information is exempt”); Elec. Frontier Found. v. U.S. Dep't of Justice, 739 F.3d 1, 7 (D.C. Cir. 2014). This burden does not shift even when the requester files a cross-motion for summary judgment because “the Government ‘ultimately [has] the onus of proving that the [documents] are exempt from disclosure, '” while the “burden upon the requester is merely ‘to establish the absence of material factual issues before a summary disposition of the case could permissibly occur, '” Pub. Citizen Health Research Grp., 185 F.3d at 904-05 (quoting Nat'l Ass'n of Gov't Emps. v. Campbell, 593 F.2d 1023, 1027 (D.C. Cir. 1978)).

         An agency may carry its burden of showing an exemption was properly invoked by submitting sufficiently detailed affidavits or declarations, a Vaughn index of the withheld documents, or both, to demonstrate that the government has analyzed carefully any material withheld, to enable the court to fulfill its duty of ruling on the applicability of the exemption, and to enable the adversary system to operate by giving the requester as much information as possible, on the basis of which the requester's case may be presented to the trial court.[8] See CREW, 746 F.3d at 1088 (noting that an agency's burden is sustained by submitting an affidavit that “‘describe[s] the justifications for nondisclosure with reasonably specific detail, demonstrate[s] that the information withheld logically falls within the claimed exemption, and [is] not controverted by either contrary evidence in the record nor by evidence of agency bad faith'” (quoting Larson v. U.S. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009))); Judicial Watch, 726 F.3d at 215 (noting that “summary judgment may be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith” (internal quotation marks and alteration omitted)); Oglesby v. U.S. Dep't of Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996) (instructing that an agency's description “should reveal as much detail as possible as to the nature of the document, without actually disclosing information that deserves protection[, ] . . . [which] serves the purpose of providing the requestor with a realistic opportunity to challenge the agency's decision.”) (internal citation omitted). While “an agency's task is not herculean” it must “‘describe the justifications for nondisclosure with reasonably specific detail' and ‘demonstrate that the information withheld logically falls within the claimed exemption.'” Murphy, 789 F.3d at 209 (quoting Larson, 565 F.3d at 862). “Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears ‘logical' or ‘plausible.'” Judicial Watch, Inc. v. U.S. Dep't of Def., 715 F.3d 937, 941 (D.C. Cir. 2013) (quoting ACLU v. U.S. Dep't of Def., 628 F.3d 612, 619 (D.C. Cir. 2011)); Larson, 565 F.3d at 862 (quoting Wolf v. CIA, 473 F.3d 370, 374-75 (D.C. Cir. 2007)).

         The FOIA provides federal courts with the power to “enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B). District courts must “determine de novo whether nondisclosure was permissible, ” Elec. Privacy Info. Ctr. v. U.S. Dep't of Homeland Sec., 777 F.3d 518, 522 (D.C. Cir. 2015), by reviewing the Vaughn index and any supporting declarations “to verify the validity of each claimed exemption.” Summers v. U.S. Dep't of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998). In addition, the court has an “affirmative duty” to consider whether the agency has produced all segregable, non-exempt information. Elliott v. U.S. Dep't of Agric., 596 F.3d 842, 851 (D.C. Cir. 2010) (referring to court's “affirmative duty to consider the segregability issue sua sponte”) (quoting Morley v. CIA, 508 F.3d 1108, 1123 (D.C. Cir. 2007)); Stolt-Nielsen Transp. Grp. Ltd. v. United States, 534 F.3d 728, 734 (D.C. Cir. 2008) (“[B]efore approving the application of a FOIA exemption, the district court must make specific findings of segregability regarding the documents to be withheld.”) (quoting Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007))); Trans-Pac. Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1028 (D.C. Cir. 1999) (“[W]e believe that the District Court had an affirmative duty to consider the segregability issue sua sponte . . . even if the issue has not been specifically raised by the FOIA plaintiff.”); see also 5 U.S.C. § 552(b) (“Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.”).

         III. DISCUSSION

         The plaintiff challenges two aspects of the defendants' responses to the FOIA requests at issue: (1) the adequacy of BSEE's search in response to the plaintiff's narrowed request; and (2) whether BOEM and BSEE properly invoked Exemption 5 to withhold in part, under the deliberative privilege process and the attorney-client privilege, five documents, including the text of three versions of the April 3, 2015 memorandum, as well as related email chains. See Pl.'s Reply Supp. Cross-Mot. Summ. J. (“Pl.'s Reply”) at 1. As discussed below, the defendants have met their burden for demonstrating both the adequacy of BSEE's search and that Exemption 5 protects from disclosure the challenged withheld material in the documents.

         A. BSEE'S SEARCH WAS ADEQUATE

         The plaintiff challenges the adequacy of BSEE's search in response to the narrowed request for “documents upon which the author or authors of the Joint DOI-USCG statements relied, ” Pl.'s Reply at 2, because, in the plaintiff's view, the agency's search did not use methods “reasonably expected to produce the information requested, ” id. (citing Nation Magazine, Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995)). The Court disagrees. Based upon the detailed description of how the search was conducted, BSEE has met its burden of showing that the search was adequate.

         1. Legal Standard For Evaluating Adequacy of FOIA Search

         Federal agencies, upon receiving a FOIA request, are “required to perform more than a perfunctory search” to identify potential responsive records. Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d 504, 514 (D.C. Cir. 2011). Instead, the agency bears the burden of demonstrating that it “made a ‘good faith effort to conduct a search using methods which can be reasonably expected to produce the information requested.'” DiBacco v. U.S. Army, 795 F.3d at 188 (internal alterations omitted); see also Clemente v. Fed. Bureau of Investigation, 867 F.3d 111, 117 (D.C. Cir. 2017) (quoting Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990)). To meet this burden, the agency must “demonstrate beyond material doubt that its search was ‘reasonably calculated to uncover all relevant documents.'” Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (quoting Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990)). “The adequacy of an agency's search is measured by a ‘standard of reasonableness, ' and is ‘dependent upon the circumstances of the case.'” Truitt, 897 F.2d at 542 (quoting Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983)). While agencies have a duty to construe FOIA requests ...


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