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Protect Democracy Project, Inc. v. U.S. Department of Energy

United States District Court, District of Columbia

September 17, 2018

THE PROTECT DEMOCRACY PROJECT, INC., Plaintiff,
v.
U.S. DEPARTMENT OF ENERGY, Defendant.

          MEMORANDUM OPINION AND ORDER

          TIMOTHY J. KELLY, UNITED STATES DISTRICT JUDGE

         When a new President is elected, a “transition team” is formed to begin the process of handing over power from the old administration to the new. As part of this process, members of the transition team interact with the staffs of federal agencies. This case arises from discussions between the most recent presidential transition team and Department of Energy (“DOE”) staff, specifically discussions pertaining to a questionnaire on a variety of DOE-related issues, as well as certain other discussions regarding DOE personnel. Plaintiff The Protect Democracy Project, Inc. (“Protect Democracy”) filed a request under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, for documents on those topics. This lawsuit concerns Protect Democracy's objections to DOE's response.

         The parties have cross-moved for summary judgment. ECF Nos. 12, 13.[1] As explained below, each party's motion is granted in part and denied in part. The action shall proceed according to the schedule set forth below.

         I. Factual and Procedural Background

         In early December 2016, a member of the presidential transition team contacted DOE staff with questions on a variety of topics, including a request for the names of DOE employees who had attended certain meetings regarding climate change. Def.'s Reply SoMF ¶¶ 1-2. (Like the parties, the Court will refer to these questions as the “Questionnaire.”) After versions of the Questionnaire leaked to the press, the transition team disavowed it and “counseled” the employee who had prepared it. Id. ¶¶ 3-6. Later, during his confirmation hearing, Energy Secretary Rick Perry also distanced himself from the Questionnaire, saying, “I didn't approve it, I don't approve of it, I don't need that information, I don't want that information.” Id. ¶ 7. A partially redacted version of the Questionnaire, including DOE's responses, has been posted to the DOE website at http://www.energy.gov/management/downloads/74-point-questionnaire. Id. ¶ 8.

         On February 15, 2017, Protect Democracy sent DOE the following two-part FOIA request:

1) Any and all records created between November 9, 2016 and the present date by or between Department of Energy employees regarding or including Presidential Transition Team questionnaires about climate change (aka “global warming”), including but not limited to communications between Department of Energy employees and the following individuals: Donald Trump, Stephen Bannon, Reince Priebus, Stephen Miller, Kellyanne Conway, Sean Spicer, Michael Pence, Daniel Simmons, David Jonas, Jack Spencer, John Giordano, Kelly Mitchell, Mark Maddox, Martin Dannenfelser Jr., Thomas Norris, Travis Fisher, William Greene and Rick Perry.
2) Any and all records created between November 9, 2016 and the present date regarding personnel changes, new personnel assignments or new personnel assignment policies by or between Department of Energy employees and the Executive Office of the President or Presidential Transition Team (aka “Landing Team”), including but not limited to communications between Department of Energy employees and the following individuals: Donald Trump, Stephen Bannon, Reince Priebus, Stephen Miller, Kellyanne Conway, Sean Spicer, Michael Pence, Daniel Simmons, David Jonas, Jack Spencer, John Giordano, Kelly Mitchell, Mark Maddox, Martin Dannenfelser Jr., Thomas Norris, Travis Fisher, William Greene and Rick Perry.

         Def.'s Ex. A. On February 21, 2017, DOE responded with a letter acknowledging the request. Def.'s Ex. B. From March through October 2017, DOE provided several interim responses, including documents responsive to the request. Def.'s Exs. C-F.

         DOE sent its final response by letter dated December 1, 2017. Def.'s Ex. G. The letter explained that DOE's Office of Management (“MA”) and Office of the Chief Human Capital Officer (“HC”) had handled the request. Id. DOE's interim responses and final response, combined, provided Protect Democracy with 45 documents responsive to the request. Id. The final response explained that DOE had redacted certain information covered by the deliberative-process privilege under Exemption 5 of FOIA, as well as certain personal information under Exemption 6. Id.

         On April 27, 2017, Protect Democracy filed this lawsuit. ECF No. 1. After DOE completed its response to the requests, the parties filed and briefed their respective motions for summary judgment. ECF Nos. 12, 13. The parties dispute whether DOE conducted an adequate search in response to the first request (relating to the Questionnaire), and whether DOE properly invoked the deliberative-process privilege under Exemption 5. See Pl.'s Br.

         In its motion papers, DOE describes the search it undertook in response to each request. For the first request, DOE explains, it searched the files of Ingrid Kolb, the Director of MA, because “all transition-related communications with the transition team were disseminated to DOE through Ms. Kolb.” Morris Decl. ¶ 13. DOE initially stated that Kolb searched her email using the following terms: “transition, ” “questionnaire, ” “questions, ” and “personnel, ” which identified 21 responsive documents. Id. ¶ 17. However, in its reply papers, DOE explained that Kolb had in fact performed a manual search based on her knowledge of her email file, not an electronic search based on the application of search terms. Supp. Morris Decl. ¶ 13. Moreover, DOE had only released emails “between DOE and the DOE transition team and [had] not include[d] communications by and between non-transition team DOE employees.” Id. ¶ 14. Therefore, on April 19, 2018, DOE's Office of the Chief Information Officer performed an electronic search of Kolb's files using the search terms “transition, ” “questionnaire, ” and “questions, ” finding an additional seven responsive documents. Id. ¶¶ 15, 17. DOE made a supplemental release on May 29, 2018, shortly before the filing of its reply brief. Def.'s Reply Ex. A.

         For the second request, DOE searched the files of three HC employees with responsibility for “any personnel assignments between DOE employees and the Executive Office of the President or the Presidential Transition Team.” Morris Decl. ¶ 22. DOE used the search term “‘beachhead,' which is the term that DOE used to refer to the transition landing team.” Id. It also reviewed all communications between these three employees and two particular transition team members during the relevant time frame. Id. This search located 24 responsive documents. Id.

         DOE avers, at least in its initial motion papers, that it “searched all locations likely to contain documents responsive to Plaintiff's FOIA requests.” Id. ¶ 39. DOE has filed a Vaughn index explaining the withholdings it made in connection with the 2017 releases, as well as a supplemental Vaughn index for its May 2018 release. Vaughn Index; Supp. Vaughn Index. DOE further states that it has limited its withholdings so as to release “all reasonably segregable information” to Protect Democracy. Supp. Morris Decl. ¶ 21.

         II. Legal Standard

         Under Federal Rule of Civil Procedure 56, a court must grant summary judgment “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). “Summary judgment is appropriately granted when, viewing the evidence in the light most favorable to the non-movants and drawing all reasonable inferences accordingly, no reasonable jury could reach a verdict in their favor.” Lopez v. Council on Am.-Islamic Relations Action Network, Inc., 826 F.3d 492, 496 (D.C. Cir. 2016). “[T]he vast majority of FOIA cases can be resolved on summary judgment . . . .” Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011).

         Congress enacted FOIA in 1966 to “pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007) (quoting Dep 't of Air Force v. Rose, 425 U.S. 352, 361 (1976)). “FOIA ‘mandates that an agency disclose records on request, unless they fall within one of nine exemptions.'” EPIC v. DHS, 777 F.3d 518, 522 (D.C. Cir. 2015) (quoting Milner v. Dep't of Navy, 562 U.S. 562, 565 (2011)).

         In FOIA cases, “to obtain summary judgment the agency must show that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.” Mobley v. CIA, 806 F.3d 568, 580 (D.C. Cir. 2015) (quoting Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990)). “The court may rely on a ‘reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched.'” Id. at 580-81 (quoting Oglesby, 920 F.2d at 68). “‘[S]ummary judgment is inappropriate' if ‘a review of the record raises substantial doubt' as to the search's adequacy, ‘particularly in view of well defined requests and positive indications of overlooked materials.'” Reporters Comm. for Freedom of Press v. FBI, 877 F.3d 399, 402 (D.C. Cir. 2017) (quoting Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999)) (internal quotation marks omitted). “The court applies a ‘reasonableness' test to determine the ‘adequacy' of a search methodology, consistent with congressional intent tilting the scale in favor of disclosure . . . .” Morley, 508 F.3d at 1114 (quoting Campbell v. DOJ, 164 F.3d 20, 27 (D.C. Cir. 1998)).

         In addition, if the agency has invoked any of FOIA's exemptions, the “burden is on the agency to justify withholding the requested documents, and the FOIA directs district courts to determine de novo whether non-disclosure was permissible.” EPIC, 777 F.3d at 522. “Summary judgment is warranted on the basis of agency affidavits when the affidavits 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) (quoting Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984)). That is, the agency must provide a “logical” or “plausible” justification for the exemption. Id. (quoting Wolf v. CIA, 473 F.3d 370, 375 (D.C. Cir. 2007)). The agency cannot rely on “conclusory and generalized allegations of exemptions.” Morley, 508 F.3d at 1115 (quoting Founding Church of Scientology of Wash., D.C., Inc. v. NSA, 610 F.2d 824, 830 (D.C. Cir. 1979)).

         FOIA further requires that “[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt.” 5 U.S.C. § 552(b). Before approving the government's withholdings, the court has an affirmative duty to ensure that the segregability requirement is satisfied, even if it must do so sua sponte. See Morley, 508 F.3d at 1123.

         III. ...


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