United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
P. Mehta United States District Judge
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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
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)).
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).
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
Adequacy of the Search
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.
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.”
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 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.
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.
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.
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.
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.
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 ...