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Competitive Enterprise Institute v. United States Department of The Treasury

United States District Court, District of Columbia

April 2, 2018

COMPETITIVE ENTERPRISE INSTITUTE, Plaintiff,
v.
UNITED STATES DEPARTMENT OF THE TREASURY, Defendant.

          MEMORANDUM OPINION

          ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE.

         The Competitive Enterprise Institute, a public policy research and education organization, filed two identical Freedom of Information Act requests with the United States Department of the Treasury seeking all “copies of any and all record(s) . . . using the word ‘carbon' which were produced, sent or received by the Office of the Deputy [sic] Secretary for Environent and Energy [and the Office of Legislative Affairs] during 2012, from January 1, 2012 until the date you process this request.” Abigail Demopulos Decl. [Dkt. 30-3] ¶ 3. Dissatisfied with Treasury's response, CEI has sued. Treasury moves for summary judgment, which CEI opposes. For the reasons stated below, the Court will grant Treasury's motion in part and deny it in part. For a subset of records, Treasury will be required to produce further information concerning the “deliberative” nature of the proceedings for which it claims an exemption.

         I. BACKGROUND

         On August 8, 2012, CEI sent two materially similar FOIA requests to two constituent components of Treasury: (1) the Office of the Deputy Assistant Secretary for Environment and Energy (Environment and Energy); and (2) the Office of Legislative Affairs (Legislative Affairs). Am. Compl. [Dkt. 8] ¶¶ 23, 24. These requests sought any and all records “using the word ‘carbon'” produced, sent, or received between the offices during the calendar year 2012 up until the date the FOIA requests were processed. Id. After negotiations, the parties agreed to limit CEI's search request to the following terms: “carbon tax”; “carbon levy”; “carbon fee”; “carbon charge”; “carbon cap”; “price on carbon”; and “tax on carbon.” Joint Status Report [Dkt. 15].

         Using those search terms, Treasury electronically searched the hard drives, email accounts, and shared drives of all employees in Environment and Energy. See Demopulos Decl. [Dkt. 30-3] ¶ 7. This search located 4, 163 pages of responsive records. Id. Treasury also searched the hard drives, email accounts, and shared drives of employees in Legislative Affairs whose assigned responsibilities, as Treasury determined, made it likely the employee might have responsive records. Gail Harris-Berry Decl. [Dkt. 30-4] ¶ 6. Treasury manually searched a number of PDF files whose format made electronic searching impossible. The combined searches in Legislative Affairs returned no unique, non-duplicative records when compared to the 4, 163 located in Environment and Energy. Id. 7. Of the 4, 163 responsive pages, 2, 464 pages were released, in whole or in part. Treasury withheld 1, 699 pages in their entirety.

         CEI filed its initial Complaint in this case on November 13, 2012, and filed an Amended Complaint November 27, 2012. After negotiations over search terms, searches, and production, Treasury moved for summary judgment on November 2, 2015. In a Minute Order dated July 1, 2015, the Court denied Treasury's initial motion for summary judgment and ordered Treasury to prepare a more detailed Vaughn Index. See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). Treasury has now filed a Renewed Motion for Summary Judgment [Dkt. 30] that includes a revised Vaughn Index. CEI opposes Treasury's Motion, see Opp'n [Dkt. 31], and Treasury has replied, see Reply [Dkt. 33]. The matter is now ripe for the Court's review.

         II. VENUE AND JURISDICTION

         Section 552(a)(4)(B) of the U.S. Code grants this Court subject matter jurisdiction over all actions brought under FOIA, and makes this an appropriate forum for venue purposes. 5 U.S.C. § 552(a)(4)(B) (“On complaint, the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, or in the District of Columbia, has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.”); see Jones v. Nuclear Regulatory Comm'n, 654 F.Supp. 130, 131 (D.D.C. 1987).

         The Court's jurisdiction under FOIA extends only to claims arising from the improper withholding of agency records. See 5 U.S.C. § 552(a)(4)(B); see also Lazaridis v. U.S. Dept of Justice, 713 F.Supp.2d 64, 66 (D.D.C. 2010) (citing McGehee v. CIA, 697 F.2d 1095, 1105 (D.C. Cir. 1983)).

         III. LEGAL STANDARDS

         FOIA “represents a balance struck by Congress between the public's right to know and the government's legitimate interest in keeping certain information confidential.” Ctr. for Nat'l Sec. Studies v. U.S. Dep't of Justice, 331 F.3d 918, 925 (D.C. Cir. 2003). Under FOIA, federal agencies must release records to the public upon request, unless one of nine statutory exemptions apply. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136 (1975); 5 U.S.C. § 552(b). To prevail in a FOIA case, a plaintiff must show that an agency has improperly withheld agency records. See Odland v. FERC, 34 F.Supp.3d 1, 13 (D.D.C. 2014). The defending agency must demonstrate that its search for responsive records was adequate, that any cited exemptions actually apply, and that any reasonably segregable non-exempt information has been disclosed after redaction of exempt information. See id.

         FOIA cases are typically and appropriately decided on summary judgment. See Sanders v. Obama, 729 F.Supp.2d 148, 154 (D.D.C. 2010). Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be granted when “the pleadings, the discovery and disclosure materials on file, and any affidavits, show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The party moving for summary judgment “bears the initial responsibility . . . [to] demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In ruling on a motion for summary judgment, a court must draw all justifiable inferences in favor of the nonmoving party and accept the nonmoving party's evidence as true. See Anderson, 477 U.S. at 255. The nonmoving party, however, must provide more than a “mere existence of a scintilla of evidence . . . . [T]here must be evidence on which the jury could reasonably find for the [nonmoving party] ” Id. . at 252.

         IV. ANALYSIS

         CEI challenges the adequacy of Treasury's search, as well as Treasury's designation of some records as exempt under Exemption 5, which protects “inter-agency or intra-agency memorandums or letters which would not be available by law to a ...


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