Climate Investigations Ctr. v. DOE, No. 16-00124, 2022 WL 3277350 (D.D.C. Aug. 11, 2022) (Mehta, J.)

Climate Investigations Ctr. v. DOE, No. 16-00124, 2022 WL 3277350 (D.D.C. Aug. 11, 2022) (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 third renewed motion for summary judgment; granting in part and denying in part plaintiff’s cross-motion for summary judgment

• Litigation Considerations, Adequacy of Search:  “[T]he court grants Defendant’s motion for summary judgment as to the adequacy of its supplemental search of the Office of the Secretary.”  The court relates that “[i]n 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.”  The court notes that “[defendant] 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.”  “[Defendant] further explains that DOE used search terms that the court previously found to be reasonable.”  “And [defendant] notes that DOE conducted an additional search for electronic records across the same custodians using two specific search terms requested by Plaintiff.”  In response to plaintiff’s argument based on several inconsistencies between “past productions [and] the most recent productions,” the court finds that “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.”  Additionally, the court finds that “Plaintiff’s mere speculation that more records should exist does not create a genuine dispute of fact that the search was inadequate.”
   
• Exemption 5, Deliberative Process Privilege & Litigation Considerations, Summary Judgment:  The court discusses the nine disputed documents individually.  Regarding the first document at issue, the court finds that “DOE’s justification for withholding this record is lacking.”  “Although the Vaughn entry identifies the author and recipient of the email, . . . the agency fails to explain the employees’ places in the decisionmaking chain.”  “The entry also lacks detail about the deliberative process involved.”  “That description does not tell the court what deliberative process is involved or how the record relates to that deliberative process.”  Regarding the second record at issue, the court finds that “DOE has met its burden with respect to this record.”  “It is an email concerning ‘potential talking points to be created before a meeting between the Secretary of Energy, Southern Company, and Governor [Haley] Barbour’ concerning ‘a path forward for Southern’s IGCC plant . . . and before DOE reached the final decision about where to move the IGCC plant in May 2008.’”  “Courts in this District consistently have held that proposed or draft talking points or briefing materials in advance of high-level meetings involving agency leadership qualify for Exemption 5 protection.”  Regarding the third document at issue, the court finds that “[t]his record reflects a discussion of ‘potential talking points’ in advance of a phone call between the Secretary, Southern Company, and Governor Barbour that pertained to the agency’s decision on ‘whether to approve the relocation of the Kemper plant.’”  “DOE’s withholding of this record was proper for the same reasons as the one immediately [prior].”  Regarding the fourth document at issue, the court relates that “[t]his record is an inter-agency communication between DOE and [OMB].”  “The withheld email and attachment ‘contain opinions and projected goals for various CCS [Carbon Capture and Sequestration] projects to be shared with DOE and OMB before the agencies reached a final decision on the CCS program.’”  “The Vaughn entry, however, identifies neither the ‘final decision’ that the agencies are seeking to reach ‘on the CCS program’ nor does it say how the ‘opinions and projected goals’ factor into that decision.”  “As a result, [the court finds that] the agency’s description of this document is inadequate to sustain the Exemption 5 invocation.”  Regarding the fifth document at issue, the court relates that “[t]his record is an email, dated May 10, 2010, between DOE employees discussing ‘potential information to be included and different options for the call before [a] meeting . . . and before DOE reached the final decision about the Kemper project.’”  The court finds that “[t]his entry provides greater detail than the last one, though it is still not quite clear what ‘decision about the Kemper project’ is at issue or how the call related to that decision.”  “Nevertheless, because the information ‘reflect[s] the agency’s thought process in formulating its public statements’ with a third party, the court thinks the agency’s description is adequate.”  Regarding the sixth document at issue, the court relates that “[t]his is an email of ‘employees discussing and editing draft talking points prepared for a meeting between the Secretary, Governor Barbour, and Southern Company’ about ‘potential site outcomes regarding a decision to move the site of Southern’s IGCC plant from Orlando, Florida to alternative sites, including Kemper County, Mississippi, before DOE reached [a] final decision about where to move Southern’s IGCC plant in May 2008.’”  The court finds that “[t]his record is protected for the same reasons as the talking points email discussed [above].”  “The court takes up [the seventh and eighth documents at issue] in tandem because of their similarity.”  “Each is an email and attachments from [an employee] to Secretary Chu (and copied to a group of others) from May 2010.”  “The records cover a host of topics in addition to the subject matter of Plaintiff’s FOIA request.”  “As relevant here, the first email includes ‘a draft proposed response for a call with Southern Company,’ . . . and the second email includes ‘a draft response to a request from Southern Company,’ . . . .”  The court finds that “[t]hese descriptions are lacking to support an Exemption 5 withholding.”  “Though these are communications to the Secretary, the Vaughn index nowhere describes what role the drafts played in the deliberative process.”  The court relates that “[t]he last of the nine records is a ‘[b]riefing memorandum prepared for the Secretary in advance of an Interagency Task Force on CCS public meeting’ that ‘synthesizes opinions and recommendations from DOE employees suggesting topics for the Secretary in the meeting and draft talking points prepared before the Secretary attended the CCS meeting.’”  “For reasons already discussed, [the court finds that] the ‘briefing memorandum’ is protected under Exemption 5.”
   
• Exemption 5, Foreseeable Harm and Other Considerations & Litigation Considerations, Foreseeable Harm Showing:  The court holds that, “[f]or those withholdings sufficiently justified by DOE, the agency has identified the specific information at issue and concluded that disclosure would ‘chill future internal discussion.’”  “That representation is in line with what the D.C. Circuit has found to be satisfactory under the foreseeable harm standard and is not, contrary to Plaintiff’s assertion, significantly more speculative or vague.”  “DOE articulated the foreseeable harm for each document withheld or redacted and tied it to the specific document or decision at issue.”