United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
P. MEHTA UNITED STATES DISTRICT JUDGE.
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.
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.
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 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)).
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).
begin, Plaintiff argues that eight records continue to be
improperly withheld or redacted under Exemption
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
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).
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. Accordingly, both
parties' motions are denied as moot as to Document 22.
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.
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 ...