Climate Investigations Ctr. v. U.S. Dep't of Energy, Case No. 16-cv-00124 (APM)

331 F.Supp.3d 1

CLIMATE INVESTIGATIONS CENTER, Plaintiff,

v.UNITED STATES DEPARTMENT OF ENERGY, Defendant.

Case No. 16-cv-00124 (APM)

United States District Court, District of Columbia.

Signed September 19, 2018

Sharon Yvette Eubanks, Bordas & Bordas PLLC, McLean, VA, for Plaintiff.

Johnny Hillary Walker, III, U.S. Attorney's Office, Washington, DC, for 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The court must view all the evidence in the light most favorable to the nonmoving party. See id. at 247–49, 106 S.Ct. 2505.

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, 109 S.Ct. 2841, 106 L.Ed.2d 112 (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.C. Cir. 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...