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Climate Investigations Center v. United States Department of Energy

United States District Court, District of Columbia

September 19, 2018

CLIMATE INVESTIGATIONS CENTER, Plaintiff,
v.
UNITED STATES DEPARTMENT OF ENERGY, Defendant.

          MEMORANDUM OPINION AND ORDER

          Amit P. Mehta United States District Judge

         This is the second time that this Freedom of Information Act dispute has come before the court. At issue is Defendant U.S. Department of Energy's response to Plaintiff Climate Investigations Center's request for records concerning the funding and development of a clean-coal technology power plant in Mississippi, known as the “Kemper Project.” Dissatisfied with Defendant's response, both with respect to the search conducted and the withholdings of portions of responsive records, Plaintiff filed suit in this court, challenging both.

         The court previously denied the parties' cross-motions for summary judgment, concluding that there remained material issues of fact concerning the adequacy of Defendant's search and the appropriateness of its withholdings under two statutory exemptions. In addition, the court found that Plaintiff's challenge to Defendant's withholdings pursuant to a third statutory exemption was moot.

         After preparing supplemental affidavits, Defendant filed a renewed motion for summary judgment. Plaintiff then filed a new cross-motion for partial summary judgment. For the reasons that follow, the court grants in part and denies in part the parties' motions. Additionally, the court now concludes that Defendant's withholding of names on personal privacy grounds, pursuant to Exemption 6, is moot only in part and denies summary judgment as to those disputed withholdings.

         I. BACKGROUND

         A. Factual Background

         Because the relevant facts are set forth in detail in an earlier opinion, see generally Mem. Op. & Order, ECF No. 21 [hereinafter Mem. Op.], the court only summarizes them here. Plaintiff Climate Investigations Center submitted a Freedom of Information (“FOIA”) request to Defendant Department of Energy in early 2015, seeking information concerning the implementation of certain clean-coal technology at a Mississippi power plant, known as the “Kemper Project.” Id. at 2. Southern Company and its wholly-owned subsidiary, Mississippi Power Company, are partially responsible for the Kemper Project's development. Id. Southern Company received a $300 million award from Defendant for the development. See id.

         Plaintiff directed its FOIA request to Defendant's subcomponent, the National Energy Technology Laboratory (“NETL”), which oversees the Kemper Project. Id. The request asked for all communications related to the “development, funding and/or construction and implementation of ‘clean coal' technology” at the Kemper Project, including information regarding the technology developed for use at the plant and the decision to build the plant in Kemper County, Mississippi. Id. NETL began to search for responsive documents after receiving the FOIA request, id., but Plaintiff later refined its request to identify six categories of documents from the period beginning January 1, 1998, through December 31, 2011, id. at 3. NETL then contacted Defendant's Headquarters (“DOE Headquarters”), believing that it would have responsive materials. Id.

         In response, DOE Headquarters referred the requests to the Office of Fossil Energy, which it believed was most likely to have the desired records. Id. The Office of Fossil Energy conducted manual and electronic searches, and then submitted the results to the Office of Information Resources, which reviewed the records, removed duplicates, and consulted with Southern Company to determine what portions of the responsive material might cause the company harm, if disclosed. Id. The Office of Information Resources then redacted those portions that it believed were exempt from disclosure. Id. In total, DOE Headquarters, through the Office of Fossil Energy, turned over 75 records to Plaintiff, some of which contained redactions. Id. at 3-4.

         In parallel with the Office of Fossil Energy's efforts, NETL began producing responsive records. See id. at 4. Before doing so, however, it consulted with DOE Headquarters about records that pertained to the Office of the Secretary. It also conferred with Southern Company to ascertain how disclosing certain records might adversely affect the company. Id. at 4. In the end, NETL produced to Plaintiff thousands of pages, many containing redactions. Id.

         B. Procedural Background

         Plaintiff filed suit in this court on January 26, 2016, see Compl., ECF No. 1, and amended its complaint as of right three days later, see Am. Compl., ECF No. 3. Plaintiff challenged all aspects of Defendant's response to its FOIA request, arguing that Defendant's search for records was inadequate and that its redactions pursuant to statutory exemptions were improper and unsupported. See generally Am. Compl.

         Both parties moved for summary judgment. Defendant sought summary judgment as to the adequacy of its search as well as its withholdings under FOIA Exemptions 4, 5, and 6. See generally Def.'s First Mot. for Summ. J., ECF No. 13, Def.'s First Mem. in Supp., ECF No. 13-2. Defendant summarized its withholding of responsive material and applicable exemptions in two Vaughn Indices: one from the DOE Headquarters, see Def.'s First Mot. for Summ. J., Ex. 2, ECF No. 13-6 [hereinafter DOE Headquarters Vaughn Index], and one from NETL, see Def.'s First Mot. for Summ. J., Ex. 1, ECF No. 13-5 [hereinafter NETL Vaughn Index]. Plaintiff filed a Cross-Motion for Partial Summary Judgment in which it sought judgment as to the search issue and Defendant's withholdings under Exemptions 5 and 6. See generally Pl.'s First Cross-Mot. for Partial Summ. J., ECF No. 15 [hereinafter Pl.'s First Cross-Mot.], Attach. 1, Pl.'s First Mem. of P. & A. in Supp., ECF No. 15-1.

         The court denied both motions. See generally Mem. Op. The court denied summary judgment as to the adequacy of the search and the withholdings under Exemptions 4 and 5. See Mem. Op. at 7-24. Additionally, the court denied Plaintiff's challenge to the withholding of Southern Company officials' names under Exemption 6, finding that a filing by Southern Company's with the Securities and Exchange Commission rendered the claim moot. Id. at 24-26.

         After marshaling supplemental evidence, Defendant filed a Renewed Motion for Summary Judgment as to all issues. See generally Def.'s Renewed Mot. for Summ. J., ECF No. 25 [hereinafter Def.'s Renewed Mot.]. Plaintiff filed a Cross-Motion for Partial Summary Judgment, opposing Defendant's Renewed Motion and seeking an evidentiary hearing on the withholdings under Exemptions 4 and 5. See generally Pl.'s Cross-Mot. for Partial Summ. J. & Opp'n to Def.'s Renewed Mot. for Summ. J., ECF No. 27 [hereinafter Pl.'s Cross-Mot.]. These motions are now ripe for consideration.

         II. LEGAL STANDARD

         On a motion for summary judgment, a court must enter judgment in favor of the moving party if that party “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). A dispute is “genuine” only if a reasonable fact-finder could find for the nonmoving party, and a fact is “material” only if it is capable of affecting the outcome of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court must view all the evidence in the light most favorable to the nonmoving party. See Id. at 247-49.

         A defendant agency in a FOIA case is entitled to summary judgment upon demonstrating that no material facts are in dispute, that it has conducted an “adequate search, ” and that all located responsive records have been produced to the plaintiff or are exempt from disclosure. See Students Against Genocide v. Dep't of State, 257 F.3d 828, 833, 840 (D.C. Cir. 2001). An “adequate search” is one that is “reasonably calculated to uncover all relevant documents.” Oglesby v. U.S. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). The agency bears the burden of proving that it performed such a search, and it may rely on sworn affidavits or declarations to do so. See SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991). The court may grant summary judgment to the agency based on this evidence if it is reasonably specific and contradicted by neither record evidence nor evidence of agency bad faith. See Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); Beltranena v. Clinton, 770 F.Supp.2d 175, 181-82 (D.D.C. 2011). Plaintiffs can rebut an agency's supporting affidavits and declarations by demonstrating, with “specific facts, ” that there remains a genuine issue as to whether the agency performed an adequate search for documents responsive to the plaintiff's request. See Span v. U.S. Dep't of Justice, 696 F.Supp.2d 113, 119 (D.D.C. 2010) (quoting U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989)).

         An agency also bears the burden of showing that it properly withheld materials pursuant to a statutory exemption. Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice, 746 F.3d 1082, 1088 (D.D.C. 2014). An agency “may carry its burden . . . by submitting sufficiently detailed affidavits or declarations, a Vaughn index of the withheld documents, or both, to demonstrate that the government has analyzed carefully any material withheld and provided sufficient information as to the applicability of an exemption to enable the adversary system to operate.” Brennan Ctr. for Justice v. Dep't of State, 296 F.Supp.3d 73, 80 (D.D.C. 2017). “If the agency's affidavits provide specific information sufficient to place the documents within the exemption category, if this information is not contradicted in the record, and if there is no evidence in the record of agency bad faith, then summary judgment is appropriate without in camera review of the documents.'” ACLU v. U.S. Dep't of Def., 628 F.3d 612, 626 (D.C. Cir. 2011) (internal quotation marks omitted).

         III. DISCUSSION

         Plaintiff challenges four aspects of Defendant's response to its FOIA requests: (1) the adequacy of Defendant's search; (2) the withholding of privileged and confidential “commercial or financial information” under Exemption 4; (3) the withholding of claimed privileged communications under Exemption 5; and (4) the withholding of names of individuals and other personal information under Exemption 6. See generally Pl.'s Cross-Mot., Attach.1, Pl.'s Mem. in Supp., ECF No. 27-1 [hereinafter Pl.'s Mem.]. The court considers each of these challenges in turn.

         A. Adequacy of the Search

         Plaintiff once more contests the adequacy of Defendant's search for responsive records. In the first round of summary judgment briefing, Plaintiff raised two challenges to Defendant's search: (1) that Defendant should have used different terms when searching the Office of Fossil Energy, and (2) that Defendant should have conducted a separate search of records within the Office of the Secretary, as that office likely held responsive records that would not be captured in the search of the Office of Fossil Energy. See Mem. Op. at 7. As to the former argument, the court concluded that Defendant had “employed appropriate search terms” because they were “reasonably calculated to capture records responsive to Plaintiff's FOIA Request.” Id. at 8. But as to the latter argument, the court denied summary judgment to both parties, reasoning that Defendant's declarations “[did] not support its contention that performing a separate search . . . would [have been] duplicative of its prior searches.” Id. at 9-10. The court's determination was based, in part, on the fact that Defendant had produced documents and correspondence that originated in the Office of the Secretary, but had not explained why a search of that Office would have been “fruitless or redundant.” Id. at 9.

         The court identified two means by which Defendant could supplement the record and renew its motion concerning the records search. Id. at 10. The first option was for Defendant to conduct Plaintiff's desired search of the Office of the Secretary. Id. In the alternative, the court noted that Defendant could “submit facts explaining: (1) the organizational and record-keeping relationships, if any, among the Office of the Executive Secretariat, Office of the Secretary, NETL, and Office of Fossil Energy; and (2) why NETL's and the Office of Fossil Energy's searches would have reached all responsive records maintained by the Office of the Secretary, such that a separate search is unnecessary.” Id.

         Defendant took the latter approach, opting to supplement the record with additional facts concerning the searches already conducted and Defendant's record-keeping. See Def.'s Renewed Mot., Attach. 1, Def.'s Mem. of P. & A. in Supp., ECF No. 25-1 [hereinafter Def.'s Mem.], at 6- 7. The agency's support comes in the form of a supplemental declaration from Alexander Morris, Defendant's FOIA Officer, who manages all open-records requests sent to DOE Headquarters. See Def.'s Renewed Mot., Second Suppl. Decl. of Alexander C. Morris, ECF No. 25-3 [hereinafter Suppl. Morris. Decl.], ¶¶ 1-3. In that declaration, Morris says that a separate search of the Office of the Secretary was “unnecessary and duplicative” because the search conducted by the Office of Fossil Energy-the “conduit to the Office of the Secretary” for the Kemper Project-“captured any responsive records” within the Office of the Secretary. Id. ¶¶ 17, 26. Morris then proceeds to outline the two routes by which the Office of Fossil Energy[1] would have communicated with the Office of the Secretary about the Kemper Project. Those two routes are an electronic record and tracking system, which is used for formal communications, and email, which is used for informal communications. See id. ¶ 16.

         Morris explains that, as a matter of course, the Secretary's formal correspondence relating to Fossil Energy programs are entered into the Office of Fossil Energy's own electronic records management system. The Office of the Executive Secretariat, within the Office of the Secretary, uses a system called “eDocs” to track and maintain the Office of the Secretary's formal correspondence. Id. ¶¶ 13-14. Specifically, the Office of the Executive Secretariat enters “Secretarial level actions and information related to [Fossil Energy] programs” into eDocs; thus, all “formal correspondence” between the Office of the Secretary and the Office of Fossil Energy is tracked within that system. Id. ¶ 14. The information in eDocs, in turn, is entered into the Office of Fossil Energy's internal tracking system, “CorrTrack.” Id. ¶ 15. Additionally, correspondence predating the tracking system was manually searched. See id. ¶ 19. Therefore, Defendant's search of the Office of Fossil Energy's CorrTrack system and the accompanying manual search, according to Morris, would have captured the relevant, formal correspondence within the Office of the Secretary. To belt-and-suspenders the search, Morris states that Defendant also directly searched the Office of the Secretariat's eDocs system “to ensure all responsive records had been captured by [the Office of Fossil Energy's] searches.” Id. ¶ 22. This search did not produce any “new” materials. Id. ¶¶ 23-25.

         The only other way by which the Office of Fossil Energy exchanges information with the Office of the Secretary is by email. See id. ¶ 16. Emails are considered “informal” correspondence, as compared to the formal correspondence logged into CorrTrack. See Def.'s Mem. at 7. The Office of Fossil Energy searched the e-mail accounts of “senior [Fossil Energy] staff” working on the Southern Company project and the “archived email accounts” of three Fossil Energy officials in response to Plaintiff's FOIA request. See Suppl. Morris Decl. ¶¶ 18, 20. By electronically searching the Office of Fossil Energy's CorrTrack system and e-mail accounts of senior Fossil Energy staff, Morris states, Defendant searched the “only two routes to submit information or to receive information from the Office of the Secretary.” Id. ¶¶ 25-26; see also Id. ¶¶ 16, 18-21.

         Morris notes one more search: that of the Office of History and Heritage Resources, which is located inside the Office of the Secretariat and “maintains a database with physical records of the former Secretaries of Energy, ” including “reports, briefing material, and formal communications.” Id. ¶¶ 24-25. This search of physical records did not yield any responsive records. Id. ¶ 25.

         Notwithstanding this new, detailed information, Plaintiff contends that Defendant's search is inadequate for two reasons. First, Plaintiff contends that Defendant's search of the Office of Fossil Energy did not capture all correspondence on the Kemper Project between Fossil Energy and the Office of the Secretary because a search of the Office of Fossil Energy would capture only “formal” correspondence, rather than all correspondence, and thus would not include “short conversational ‘informal' emails about any topic, including the subjects of [Plaintiff's] FOIA request.” Pl.'s Mem. at 6-7. That criticism is misplaced. As explained in Morris's Supplemental Declaration, informal communication with the Office of the Secretary would have been transmitted or received by email with senior staff within the Office of Fossil Energy. See Suppl. Morris Decl. ¶¶ 17-18. Defendant searched those email accounts. See id. ¶¶ 18, 20. To the extent Plaintiff believes that Defendant's email searches would not have captured all relevant informal correspondence, see Pl.'s Reply in Supp. of Cross-Mot. for Partial Summ. J., ECF No. 31 [hereinafter Pl.'s Second Reply], at 4-5, Defendant's search of the database of physical documents fills that gap.

         Plaintiff further insists that Defendant's search of the Office of the Secretary was inadequate because it did not turn up certain types of records. For instance, the search returned no documents concerning the Secretary's visit to the Kemper Project or messages regarding the Project's funding as part of the Department of Energy's budget. See id. at 4-6 & n.3. The absence of such records does not, however, establish a deficient search. It is not at all surprising that Defendant has not produced records relating to the Secretary of Energy's visit to the Kemper Project, as that visit occurred in November 2013, two years after the end of the date range of Plaintiff's FOIA request. See Mem. Op., App. (noting that Plaintiff's FOIA request sought records from the period beginning January 1, 1998, and ending December 31, 2011); Pl.'s Second Reply, App., ECF No. 31-1, at 6-7 (noting that Department of Energy Secretary Moniz toured the Kemper Project's facility on November 8, 2013). Moreover, “[m]ere speculation that as yet uncovered documents may exist does not undermine the finding that the agency conducted a reasonable search for ...


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