Climate Investigations Ctr. v. United States Dep't of Energy

1

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

No. 16-cv-00124 (APM)

United States District Court, District of Columbia

August 11, 2022

MEMORANDUM OPINION

AMIT P MEHTA UNITED STATES DISTRICT JUDGE

I.

The parties in this long-running Freedom of Information Act (FOIA) dispute are before the court for their fifth round of summary judgment briefing. Def.'s Third Renewed Mot. for Summ. J., ECF No. 72 [hereinafter Def.'s Mot.]; Pl.'s Cross-Mot. for Summ. J., ECF No. 73 [hereinafter Pl.'s Mot.]. This iteration centers on issues arising out of the court's December 6, 2019 Order requiring Defendant U.S. Department of Energy (“DOE”) to conduct a supplemental search of the agency's Office of the Secretary for additional non-duplicative responsive records. Climate Investigations Ctr. v. U.S. Dep't of Energy (Climate Investigations III), No. 16-cv-124 (APM) 2019 WL 6683751 (D.D.C. Dec. 6, 2019). Plaintiff Climate Investigations Center challenges (1) the adequacy of the supplemental search, (2) DOE's partial or entire withholding of nine records under Exemption 5 pursuant to the deliberative process privilege, and (3) whether DOE has met the FOIA Improvement Act's “foreseeable harm standard” as to eight of the nine challenged records.

The court takes up these issues in that order. As with the last round of cross-motions for summary judgment, the court presumes familiarity with the facts of this case as set forth in its previous opinions^[1] and therefore discusses them only as necessary to address the outstanding issues raised by the parties. For the reasons that follow, the parties' cross-motions for summary judgment are granted in part and denied in part.

II.

A.

An agency in a FOIA case must show that it conducted an adequate search. See Students Against Genocide v. Dep't of State, 257 F.3d 828, 838 (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.” Mil. 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 Just., 696 F.Supp.2d 113, 119 (D.D.C. 2010) (quoting U.S. Dep't of Just. v. Tax Analysts, 492 U.S. 136, 142 (1989)). Agency affidavits and declarations are accorded “a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents.” Shapiro v. U.S. Dep't of Just., No. 20-5318, 2022 WL 2760812, at *3 (D.C. Cir. July 15, 2022) (internal quotation marks omitted).

B.

In the court's last memorandum opinion, it ordered DOE to conduct a search of the Office of the Secretary for additional, non-duplicative responsive records. Climate Investigations III, 2019 WL 6683751, at *5. To establish the adequacy of that search, DOE offers the Third Supplemental Declaration of Alexander C. Morris, a FOIA Officer at DOE. See Def.'s Mot., Ex. 2, ECF No. 72-3 [hereinafter Suppl. Morris Decl.]. Morris states that DOE looked for responsive records in hard copy, archived, and the electronic files of 22 custodians, consisting of former Secretaries, Deputy Secretaries, Chiefs of Staff, and Deputy Chiefs of Staff. Id. ¶ 14. Morris further explains that DOE used search terms that the court previously found to be reasonable. Id. And he notes that DOE conducted an additional search for electronic records across the same custodians using two specific search terms requested by Plaintiff. Id. ¶ 15.

Still, Plaintiff says that DOE's search was not adequate. Plaintiff first faults DOE for what it describes as “irregularities” in the production. Pl.'s Mot., Pl.'s Mem. of P. & A. in Supp. of Pl.'s Mot., ECF No. 73-1 [hereinafter Pl.'s Mem.], at 11-12. These include receiving several duplicate documents from past productions in the most recent productions, not receiving a missing attachment to a responsive email from DOE's April 2021 production, and failing to produce a letter originally authored by Southern Company and sent to DOE. Id. at 12, 14-15. But these so-called “irregularities” do not demonstrate an inadequate search. “[T]he adequacy of a search is determined not by the fruits of the search, but by the appropriateness of its methods.” See Reps. Comm. for Freedom of Press v. FBI (Reps. Comm. I), 877 F.3d 399, 408 (D.C. Cir. 2017) (internal quotation marks and alterations omitted). Plaintiff does no more than attack the search's output, not the methods employed to conduct it. A “small collection of . . . technical failings” are not indicative of an inadequate search. SafeCard Servs., 926 F.2d at 1202.

Plaintiff also claims that, based on the records produced, DOE did not search for records from the “desk of the Secretary.” Pl.'s Mem. at 13. However, as DOE points out, the supplemental Vaughn index contains multiple emails from then-Secretary Steven Chu. See Def.'s Mot., Ex. 4, ECF No. 72-4 [hereinafter Suppl. Index], at 84, 98, 118. Plaintiff's mere speculation that more records should exist does not create a genuine dispute of fact that the search was inadequate. Suppl. Morris Decl. ¶ 14; see also Shapiro, 2022 WL 2760812, at *3.

Plaintiff further asserts that DOE failed to adequately follow up on leads that arose during the search. Pl.'s Mem. at 14-15. Specifically, Plaintiff argues that the failure of the search to turn up responsive records that would “logically be created around key meetings concerning the future of the Kemper coal plant” suggests that Defendant was required to alter its search parameters or otherwise take additional steps to locate them. Id. at 14. Plaintiff is correct that DOE cannot bury its head in the sand and must “follow through on obvious leads to discover requested documents.” Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999). Once again, however, Plaintiff's speculation and dissatisfaction with the records produced is inadequate to undermine the adequacy of DOE's search. It has failed to show that DOE ignored a lead that was “both clear and certain” and “so apparent that the [agency could not] in good faith fail to pursue it.” Mobley v. CIA, 806 F.3d 568, 582 (D.C. Cir. 2015) (internal quotation marks omitted).

For these reasons, the court grants Defendant's motion for summary judgment as to the adequacy of its supplemental search of the Office of the Secretary.

III.

A.

Next, Plaintiff argues that nine records have been improperly withheld or redacted under Exemption 5. An agency bears the burden of showing that it properly withheld materials pursuant to a statutory exemption. Citizens for Resp. & Ethics in Wash. v. U.S. Dep't of Just., 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 Just. v. U.S. 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).

B.

1.

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.” 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 omitted); see also Loving v. Dep't of Def., 550 F.3d 32, 38 (D.C. Cir. 2008). The exemption is intended to “improve[] agency decisionmaking” by “encourag[ing] candor” and “blunt[ing] the chilling effect that accompanies the prospect of disclosure.” U.S. Fish & Wildlife Serv. v. Sierra Club, Inc., 141 S.Ct. 777, 785 (2021).

For the deliberative-process privilege to apply, a document must be both “predecisional” and “deliberative.” Id. at 785-86; see also Mapother v. Dep't of Just., 3 F.3d 1533, 1537 (D.C. Cir. 1993). Material is “predecisional” if “it was generated before the adoption of an agency policy,” and it 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).

The D.C. Circuit recently underscored the type of information that an agency must provide to justify an Exemption 5 withholding. The agency should endeavor to identify:

the “who,

...