Climate Investigations Ctr. v. DOE, No. 16-00124, 2018 WL 4500884 (D.D.C. Sept. 19, 2018) (Mehta, J.)

Wednesday, September 19, 2018

Climate Investigations Ctr. v. DOE, No. 16-00124, 2018 WL 4500884 (D.D.C. Sept. 19, 2018) (Mehta, J.)

Re:  Request for records concerning funding and development of clean-coal technology power plant in Mississippi

Disposition:  Granting in part and denying in part defendant's Renewed Motion for Summary Judgment; granting in part and denying in part plaintiff's Cross-Motion for Partial Summary Judgment

  • Litigation Considerations, Adequacy of Search:  "Plaintiff contends that [d]efendant's search is inadequate for two reasons."  "First, [p]laintiff contends that [d]efendant's search . . . did not capture all correspondence . . . because a search of the Office of Fossil Energy would capture only 'formal' correspondence, rather than all correspondence, and thus would not include 'short conversational informal' emails about any topic, including the subjects of plaintiff's FOIA request."  "Plaintiff further insists that [d]efendant's search of the Office of the Secretary was inadequate because it did not turn up certain types of records."  The court finds that, "[t]he absence of such records does not, however, establish a deficient search."  "Moreover, '[m]ere speculation that as yet uncovered documents may exist does not undermine the finding that the agency conducted a reasonable search for them.'"  "Second, [p]laintiff argues that [d]efendant's search was inadequate because it did not include two other locations:  the Office of General Counsel and the Office of Congressional and Intergovernmental Affairs."  "Plaintiff has not, however, 'established a sufficient predicate to justify searching' these locations."  "Plaintiff’s conjecture alone cannot compel a search of that office."  The court finds that, "[i]n sum, [d]efendant's detailed summary of its efforts convinces the court that Defendant's search was 'reasonably calculated to uncover all relevant documents.'"
  • Exemption 4:  "In evaluating an agency's claim that disclosure would impair its ability to obtain information in the future, the court conducts a 'rough balancing of the extent of the impairment and the importance of the information against the public interest in disclosure.'"  "In its supplemental declaration . . . [d]efendant sets forth why it believes that companies seeking federal funding might provide it with lower-quality information, or cease pursuing federal funding altogether, should the sensitive business information that those companies provide be made public."  "The court has no reservation concluding that [d]efendant has met its burden to show government harm."  "Defendant . . . has set forth why disclosing [the company's] information, in this instance, would threaten [d]efendant's ongoing ability to gather information from companies seeking federal funding."  ". . . [t]hese applicants may stop applying for federal funding altogether or scale back the information they voluntarily include in their applications—information that goes above and beyond that required but is nevertheless useful to [DOE] when evaluating proposals."

    "In the interest of completeness, the court turns to the alternative argument [d]efendant advances in support of its Exemption 4 withholdings:  that disclosure would likely cause 'substantial competitive harm' to the [company]."  "[The company] details the sensitivity of cost information in the industry, in part because of competitive bidding processes for funding."  The court finds that, "[h]ere, too, [d]efendant has carried its burden of showing the appropriateness of invoking Exemption 4."  "The evidence proffered by [d]efendant fits comfortably within the D.C. Circuit's 'broad definition' of 'commercial' information as including records that 'reveal basic commercial operations,' 'relate to the income-producing aspects of a business,' or concern the 'commercial fortunes' of the entity."  "Additionally, [the evidence] establishes that [the company] 'actually face[s] competition' and that disclosure would likely cause the company 'substantial competitive injury' by facilitating its competitors' development of expensive technologies."
  • Exemption 5, Threshold & Exemption 5, Attorney-Client Privilege:  "Plaintiff challenges the withholding of 'conversations between [the company's] counsel and DOE's counsel' pursuant to the attorney-client privilege, on the ground that the privilege does not protect conversations between an agency attorney and an outside attorney."  The court finds that, "[d]efendant's withholding of communications involving [the company] is improper."  "The privilege protects only 'confidential communications between an attorney and his client.'"  "Therefore, the privilege does not apply to communications involving agency personnel, the agency's attorneys, and a third party['s] . . . counsel."  "The inclusion of [the company's] counsel in such communications renders the privilege inapplicable."  "The court reaches a different conclusion, however, as to the DOE Headquarters' withholding of portions of four email threads."  "As to these materials, [d]efendant provides context for the records and a sufficient basis for invoking the attorney-client privilege."  "Specifically, as to each of the withholdings, [DOE] sets forth the subject matter of the correspondence, the parties to the exchange, and why disclosure would reveal privileged information."
  • Exemption 5, Deliberative Process Privilege:  The court notes that, "[t]he . . . declaration provided . . .  does little to tie the withheld records to specific agency decisions or explain their place in the agency's deliberative process."  "Determining the propriety of [DOE's] assertion of the deliberative process privilege is an insurmountable task on the present record."  "The deliberative process privilege 'depend[s] upon the individual document and the role it plays in the administrative process.'"  "In short, the court's inquiry must be fact-dependent and document specific."  "By grouping its records by production number, [DOE] fails to carry its burden."  "Here, [d]efendant's organization of records centered on the timing of the production, not on any identifiable criteria that would situate a defined group of records within the overall decision-making process."  The court holds that, "[this] approach does not give the court the information it needs to evaluate the privilege claim."

    "Relatedly, [d]efendant's understanding of Exemption 5 and 'draft' documents is overbroad."  "Defendant argues broadly that [DOE's] withholding of 'documents in draft form' is permissible because '[b]y their very nature, draft documents are predecisional in nature.'"  The court finds that, "[t]his is a misstatement of the law."  "The District of Columbia Circuit has made clear that simply designating a document as a 'draft' does not automatically make it privileged under the deliberative process privilege."  "Moreover, a document that was 'predecisional at the time it [was] prepared . . . can lose that status if it is adopted, formally or informally, as the agency position on an issue.'"  "Similarly, the agency does not appear to recognize that documents reflecting official policy are not protected, as they are not predecisional."  "Finally, to the extent [d]efendant seeks to withhold records that were shared or created with [the company], Exemption 5 does not shield them from disclosure."  "The deliberative process privilege protects only 'inter-agency or intra-agency' communications."  The court notes that, "[i]n contrast . . . DOE Headquarters' assertion of the deliberative process privilege easily satisfies Defendant's burden."  "In [their] Supplemental Declaration, [DOE Headquarters] methodically summarizes [d]efendant's justification for invoking the exemption." 
  • Exemption 6:  "Based on the present record, the court cannot accept [d]efendant's Exemption 6 withholdings."  "Defendant's declarants simply parrot the standard for Exemption 6 . . . rather than explain why disclosure would compromise a substantial privacy interest."  The court holds that, "[t]his will not do."  "An agency must provide affidavits containing 'reasonable specificity of detail rather than merely conclusory statements' to establish a substantial invasion of privacy.'"  "This defect alone is a sufficient basis to deny [d]efendant's motion."  "Additionally, [d]efendant has failed to grapple with the fact that the privacy interest for the disparate individuals whose names appear in the records . . . may vary."  "This 'categorical approach' was improper . . . [d]efendant must explain the privacy interests at stake as to each appropriately categorized group of individuals whose names and identifying information it has withheld."  Finally, the court also held that, "[t]here is one more basis for denying [d]efendant's Motion as to these withholdings:  [d]efendant has not addressed the [public] interest asserted by Plaintiff."
Adequacy of Search
District Court
Exemption 4
Exemption 5
Exemption 6
Litigation Considerations
Updated January 31, 2019