Climate Investigations Ctr. v. Dep't of Energy, No. 16-00124, 2019 WL 6683751 (D.D.C. Dec. 6, 2019) (Mehta, J.)

Climate Investigations Ctr. v. Dep't of Energy, No. 16-00124, 2019 WL 6683751 (D.D.C. Dec. 6, 2019) (Mehta, J.)

Re:  Request for records concerning funding and development of clean-coal technology power plant in Mississippi, known as "the 'Kemper Project'"

Disposition:  Granting in part and denying in part defendant's second renewed motion for summary judgment; granting in part and denying in part plaintiff's second renewed cross-motion for summary judgment

• Litigation Considerations, Mootness and Other Grounds for Dismissal:  First, "the court notes that [one document], which Plaintiff argues was improperly withheld based on the attorney-client privilege, has since been released by Defendant."  "Accordingly, both parties' motions are denied as moot as to [that document]."  Second, the court finds that "[an Exemption 6] dispute is now moot."  "In its Supplemental Brief, Defendant assures the court that it has now provided Plaintiff with a final signed copy of [one document] and released it to Plaintiff without any redactions."
   
• Exemption 5, Deliberative Process Privilege:  "The court is satisfied that the Vaughn Index descriptions of the withheld information support the invocation of Exemption 5."  "For example, . . . 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[]'" and "an email exchange between agency executives 'discussing a repayment agreement waiver made to the agency by Southern Company' . . . ."  "Similar descriptions are provided as to the other documents at issue."  The court finds that "[t]hese explanations sufficiently establish that the material in question 'was generated before the adoption of an agency policy' and 'reflects the give-and-take of the consultative process.'"
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "Though the court is generally satisfied that the agency properly invoked Exemption 5 as to the seven documents at issue, the court cannot enter judgment in favor of Defendant just yet."  The court explains that "neither [the] declarant . . . nor any other DOE representative has made an affirmation about segregability review."
   
• Litigation Considerations, Adequacy of Search & Procedural Requirements, Searching for Responsive Records:  "[T]he court finds it appropriate to order a search of the Office of Secretary."  "To support its contention that the Office of the Secretary should be searched, Plaintiff points to recently unredacted emails that show 'additional meetings' and 'direct communications' between Southern Company, one of the developers of the Kemper Project, . . . and the Secretary's Office."  "The court agrees and will order DOE to search the Office of the Secretary for any additional, non-duplicative responsive information."  "Plaintiff has offered records indicating a significant number of communications with the Office of the Secretary that are independent of the Office of Fossil Energy and [the National Energy Technology Laboratory ("NETL")] during the tenure of two different Energy Secretaries."  "And while DOE's search has already turned up numerous communications showing the involvement of the Office of the Secretary, the previous searches would not have captured internal communications within the Office, such as documents reflecting 'meetings between staff within the Office of the Secretary, records of phone calls, or other informal contacts with the Office of the Secretary.'"  "Plaintiff thus has identified the sort of 'clear lead' that indicates DOE's search was inadequate . . . ."  "The court, however, concludes otherwise with respect to the Office of General Counsel."  The court explains that "Plaintiff offers only two email chains between an attorney in the Office of General Counsel and personnel in the Office of Fossil Energy and NETL to support [plaintiff's] assertion, and neither provides the type of 'clear lead' that warrants a search of the Office of the General Counsel."