United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
TIMOTHY J. KELLY, UNITED STATES DISTRICT JUDGE
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
parties have cross-moved for summary judgment. ECF Nos. 12,
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.
Factual and Procedural Background
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
Id. ¶ 8.
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.
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
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.
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.
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.
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.
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.
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.
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,
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)).
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)).
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.