United States District Court, District of Columbia
A. HOWELL CHIEF JUDGE
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.
below is the factual background underlying the
plaintiff's FOIA request and review of the
defendants' responses to the FOIA request.
2004 INCIDENT AT PLAINTIFF'S OIL PLATFORM
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.”
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. 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.
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.
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.,
PLAINTIFF'S FOIA REQUEST
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
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. 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.”
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.
THE FOIA LAWSUIT
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. 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). The plaintiff now challenges the adequacy
of BSEE's search with respect to this narrowed first part
of the FOIA request.
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.
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. 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.
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).
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
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)).
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. 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)).
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.”).
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
BSEE'S SEARCH WAS ADEQUATE
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.
Legal Standard For Evaluating Adequacy of FOIA
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 ...