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Climate Investigations Center v. United States Department of Energy

United States District Court, District of Columbia

December 6, 2019





         This Freedom of Information Act dispute comes before the court on its third round of summary judgment briefing. See Mem. of P. & A. in Supp. of Def.'s Second Renewed Mot. for Summ. J., ECF No. 37-1; Pl.'s Mem. in Supp. of Plaintiff's Second Renewed Cross-Mot. for Summ. J. and Opp. to Defendant's Second Renewed Mot. for Summ. J., ECF No. 38-1 [hereinafter Pl.'s Mot.]. In this round, Plaintiff Climate Investigations Center (“CIC”) again challenges Defendant U.S. Department of Energy's (“DOE”) withholding of certain responsive records concerning the funding and development of a clean-coal technology power plant in Mississippi, known as the “Kemper Project, ” and the adequacy of the search conducted. Specifically, Plaintiff contests: (1) the withholding of portions of eight documents under Exemption 5 pursuant to the deliberative process privilege and attorney-client privilege; (2) the withholding of an unredacted version of the 2008 version of the Cooperative Agreement under Exemption 6; and (3) Defendant's failure to search DOE's Office of the Secretary and Office of the General Counsel. As will be seen, Defendant contests some but not all of these issues.

         The court eschews any recitation of the long history of this case, as it assumes that the parties are familiar with the facts and posture, and therefore turns immediately to the issues at hand.


         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 if it demonstrates 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). A plaintiff 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)).

         The 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 meet 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).


         To begin, Plaintiff argues that eight records continue to be improperly withheld or redacted under Exemption 5.[1] Defendant withheld portions of seven records pursuant to the deliberative process privilege and one record, identified as “Document 22, ” pursuant to the attorney-client privilege. See National Energy Technology Laboratory (“NETL”) Revised Vaughn Index, ECF No. 44-1 [hereinafter Revised Index]. Exemption 5 allows an agency to withhold “inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency, provided that the deliberative process privilege shall not apply to records created 25 years or more before the date on which the records were requested.” 5 U.S.C. § 552(b)(5). This exemption “protect[s] the decision making processes of government agencies, ” including “documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975) (internal quotation marks and citation omitted); see also Loving v. Dep't of Def., 550 F.3d 32, 38 (D.C. Cir. 2008). The exemption is intended to protect “frank discussion of legal or policy matters, ” which might otherwise “be inhibited if the discussion were made public.” Id. (quoting S. Rep. No. 813, 89th Cong., 1st Sess., 9 (1965)) (internal quotation marks omitted).

         For the deliberative process privilege to apply, a document must be both “predecisional” and “deliberative.” Id.; see also Mapother v. Dep't of Justice, 3 F.3d 1533, 1537 (D.C. Cir. 1993). Material is “predecisional” if it “was generated before the adoption of an agency policy, ” and is “deliberative” if “it reflects the give-and-take of the consultative process.” Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980).

         As a preliminary matter, the court notes that Document 22, which Plaintiff argues was improperly withheld based on the attorney-client privilege, has since been released by Defendant. See Reply in Support of Defendant's Mot. for Summ. J. and Opp. to Plaintiff's Cross-Mot., ECF No. 41 [hereinafter Def.'s Reply], at 4.[2] Accordingly, both parties' motions are denied as moot as to Document 22.

         As to the remaining seven documents, Plaintiff argues that “Defendant's supplemental declaration and Vaughn index do not provide adequate grounds to withhold documents pursuant to Exemption 5, ” Pl.'s Mot. at 9, because the “context of some of the previously redacted records demonstrates that the redacted material is primarily factual in nature, does not reflect agency deliberations, and is therefore improperly withheld, ” id. at 10. Plaintiff uses Document 39 as an example, contending that “NETL's summary explanation does little to explain how the material is deliberative, which parts are protected by attorney-client privilege, and further why there are not segregable factual portions disclosed in this five-page document.” Id. at 10. Plaintiff further argues that the withholding of Document 39 shows a lack of good faith. Id. at 12-13. Defendant counters that its descriptions in the Vaughn Index “plainly establish[] that the redacted information is predecisional, deliberative, and covered by the deliberative-process privilege.” Def.'s Reply at 2.

         The court is satisfied that the Vaughn Index descriptions of the withheld information support the invocation of Exemption 5. For example, with respect to Document 39, Defendant has articulated that the redacted portions of the document “contain draft language being considered for inclusion in an agreement meant for internal consideration and discussion.” See Revised Index at 40. Likewise, for Document 41, an email exchange between agency executives “discussing a repayment agreement waiver made to the agency by Southern Company, ” Defendant details that the exchange is “deliberative and pre-decisional because it contains internal NETL deliberations and recommendations to agency executives about the potential consequences of the proposed action.” Id. at 42. Similar descriptions are provided as to the other documents at issue. See generally Id. These ...

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