United States District Court, District of Columbia
ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE.
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.
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].
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.
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
VENUE AND JURISDICTION
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).
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)).
“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.
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.
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 ...