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Niskanen Center, Inc. v. United States Department of Energy

United States District Court, District of Columbia

September 13, 2018




         Plaintiff Niskanen Center, Inc. is seeking information about the National Coal Council, a chartered federal advisory committee that provides advice and recommendations to the Department of Energy. NCC was established in 1984 by the Secretary of Energy to “give coal . . . the same voice” in government that petroleum had long had. See ECF No. 18 (Pl. MSJ & Opp.), Exh. A (Website) at 1. NCC has an incorporated counterpart - NCC, Inc. - in which the Center is also interested. Plaintiff thus submitted a Freedom of Information Act request to DOE for thirteen categories of information regarding NCC and NCC, Inc. DOE has turned over two sets of responsive documents, but Plaintiff remains dissatisfied with the adequacy of the search and the extent of the withholdings. Suit having been filed, each party now moves for summary judgment. The Court will grant in part and deny in part both Motions.

         I. Background

         By letter dated March 10, 2017, Plaintiff explained that it is “engaged in a study of the long-term effectiveness of certain federal advisory committees” and requested from DOE thirteen categories of information regarding NCC and NCC, Inc., dating from 1986. See Pl. MSJ & Opp., Exh. O (Plaintiff's Request); ECF No. 16 (Def. MSJ), Exh. B (Email Amending Request). The Center sought such documents as membership lists, reports and studies, newsletters and announcements, agendas and transcripts, financial statements, tax filings, as well as information about NCC subgroups, NCC, Inc.'s incorporation and 501(c)(6) status, NCC Inc.'s finances and expenditures, and the relationship between NCC and NCC, Inc. See Pl. Request at 1-2. DOE responded on April 7, 2017, that it had “assigned” the request to DOE's Office of Fossil Energy (OFE) to conduct a search of its files for responsive documents. See Def. MSJ, Exh. C (DOE Response) at 2.

         Ten days later, when DOE failed to respond further by FOIA's statutory deadline, the Center filed this lawsuit. See ECF No. 1 (Complaint). By letter dated July 7, 2017, DOE finally responded to Plaintiff, identifying eleven documents and one Windows Media Player file responsive to the request and indicating that partially withheld documents were redacted pursuant to FOIA Exemption 6. See ECF No. 16-1 (Declaration of Alexander C. Morris), ¶ 21; Def. MSJ, Exh. D (DOE First Response Letter) at 1-2. After reviewing the production, the Center advised DOE that it believed the search deficient, “including because DOE had failed to provide any documents falling within the categories of Plaintiff's request specifically pertaining to NCC, Inc. and its relationship to [NCC].” Pl. MSJ & Opp., Exh. P (Declaration of David Bookbinder), ¶ 2; see also Morris Decl., ¶¶ 22-23. DOE then conducted a further search, identifying in a September 13, 2017, letter 21 additional documents and one additional VOB (Video Object) file. See Morris Decl., ¶ 31; Def. MSJ, Exh. E (DOE Second Response Letter) at 2. It withheld in full or in part certain of those documents based on Exemptions 4 and 6. Id.

         Both the Center and DOE have now moved for summary judgment, and DOE has provided copies of the withholdings for the Court's in camera review. See ECF No. 23.

         II. Legal Standard

         Summary judgment may 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion” by “citing to particular parts of materials in the record” or “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

         FOIA cases typically and appropriately are decided on motions for summary judgment. See Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). In a FOIA case, a court may grant summary judgment based solely on information provided in an agency's affidavits or declarations when they “describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Larson v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (citation omitted). Such affidavits or declarations “are accorded a presumption of good faith, which cannot be rebutted by ‘purely speculative claims about the existence and discoverability of other documents.'” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)). “Unlike the review of other agency action that must be upheld if supported by substantial evidence and not arbitrary or capricious, the FOIA expressly places the burden ‘on the agency to sustain its action' and directs the district courts to ‘determine the matter de novo.'” Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989) (quoting 5 U.S.C. § 552(a)(4)(B)).

         III. Analysis

         Congress enacted FOIA “to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” Dep't of the Air Force v. Rose, 425 U.S. 352, 361 (1976) (quotation marks and citation omitted). “The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989) (citation omitted). The statute provides that “each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules . . . shall make the records promptly available to any person.” 5 U.S.C. § 552(a)(3)(A). Consistent with this statutory mandate, federal courts have jurisdiction to order the production of records that an agency improperly withholds. See id. § 552(a)(4)(B); Reporters Comm., 489 U.S. at 754-55. “At all times courts must bear in mind that FOIA mandates a ‘strong presumption in favor of disclosure.'” Nat'l Ass'n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002) (quoting Dep't of State v. Ray, 502 U.S. 164, 173 (1991)).

         Plaintiff contends that DOE erred in two essential respects. First, the Center argues that the Agency has failed to demonstrate that it conducted an adequate search. See Pl. MSJ & Opp. at 39. Second, it disputes the applicability of withholdings pursuant to Exemption 4. Id. at 15. The Center does not, conversely, challenge the applicability of Exemption 6 to any of the records at issue. Compare Def. MSJ at 11-12 & Exh. F (Vaughn Index), with Pl. MSJ & Opp. at i-ii. The Court thus addresses arguments as to the search and then the withholdings in turn.

         A. Adequacy of Search

         “An agency fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was ‘reasonably calculated to uncover all relevant documents.'” Valencia-Lucena v. 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)); see also Steinberg v. Dep't of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994). “[T]he issue to be resolved is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate.” Weisberg v. Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). The adequacy of an agency's search for documents requested under FOIA “is judged by a standard of reasonableness and depends, not surprisingly, upon the facts of each case.” Id. To meet its burden, the agency may submit affidavits or declarations that explain the scope and method of its search “in reasonable detail.” Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982). Absent contrary evidence, such affidavits or declarations are sufficient to show that an agency complied with FOIA. Id. “If, however, the record leaves substantial doubt as to the sufficiency of the search, summary judgment for the agency is not proper.” Truitt, 897 F.2d at 542.

         To demonstrate the adequacy of its search here, Defendant offers two declarations by Alexander Morris, the FOIA Officer in DOE's Office of Public Information (OPI). See Morris Decl.; ECF No. 20-2 (Supplemental Declaration of Alexander C. Morris). He explains that DOE conducted its search in two steps. First, the Agency assigned the Center's request to OFE, “the program office within the [DOE] that is designated by the [NCC] charter to provide primary support to its organization.” Morris Decl., ¶¶ 9, 13. OFE searched “staff records . . . and physical files . . . for any records containing ‘National Coal Council' and the names of working groups and subgroups, announcements, press releases, membership lists, charters, studies, agendas, newsletters, meeting minutes, and audio and written transcripts for all years since 1986.” Id., ΒΆ 16. Second, OFE conducted a search of physical files - for the term ...

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