Climate Investigations Ctr. v. DOE, No. 16-124, 2017 WL 4004417 (D.D.C. Sept. 11, 2017) (Mehta, J.)

Climate Investigations Ctr. v. DOE, No. 16-124, 2017 WL 4004417 (D.D.C. Sept. 11, 2017) (Mehta, J.)

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

Disposition:  Denying plaintiff's motion for summary judgment; denying defendant's motion for summary judgment

• Procedural Requirements, Searching for Responsive Records:  "The court first concludes that Defendant was not obligated to use additional or alternative search terms when searching the Office of Fossil Energy."  "As a general matter, a plaintiff cannot dictate the search terms an agency must use to identify responsive records, and when an agency's search terms are 'reasonably calculated to lead to responsive documents, a court should neither "micromanage" nor second guess the agency's search.'"  "It remains unclear, however, whether Defendant was required to search the Office of the Secretary in order to perform an adequate search[]" because "the declarations Defendant submitted do not support its contention that performing a separate search of the Office of the Secretary would be duplicative of its prior searches."
   
• Exemption 4:  The court denies defendant's motion for summary judgment regarding its use of Exemption 4.  The court relates that "[t]he parties agree that [the submitter] is a 'person' within the meaning of the statute, the withheld information is 'commercial or financial information,' and [the submitter] mandatorily disclosed that information as a condition of receiving federal funding – they dispute only whether the information is 'confidential.'"  The court then finds that "[the submitter's] statement, however, does not sufficiently show that disclosing the information at issue would likely impair Defendant's ability to collect such information in the future."  "In the context of mandatory disclosures, 'the "continued reliability" or "quality" of the information obtained by the government is assumed because companies required to submit information would risk losing the government benefit for failing to comply fully and completely.'"  And regarding competitive harm, the court finds that "[a]t no point does [the submitter] describe the market in which [it] faces competition or against whom [it] actually competes in its use of such technology."  "[W]hile the proffered statements support the contention that [the submitter] might have competitors or may make use of competitive bidding, they do not reflect the actual competition required under the case law."
   
• Litigation Considerations, Vaughn Index/Declaration:  The court holds that "[c]ontrary to Plaintiff's contention, [defendant's declarants] are the most appropriate individuals to provide declarations concerning the searches undertaken and exemptions asserted in this matter, and their declarations demonstrate they had personal knowledge of the issues at hand."
   
• Exemption 5, Deliberative Process Privilege:  The court holds that "[d]efendant cannot successfully claim the documents fall within the deliberative process privilege because Defendant has not shown that any withheld document actually predates an agency decision."  "In fact, not one entry in the DOE Headquarters Vaughn Index identifies any 'decision' to which the withheld material contributed."
   
• Exemption 5, Attorney-Client Privilege:  The court holds that "[d]efendant's reliance on the attorney-client privilege also comes up short because it is unclear whether the four documents Defendant seeks to withhold reflect confidential communications related to a matter for which Defendant sought legal advice."  The court finds that "[d]efendant's declarants put no more meat on the bones of the Index."
   
• Exemption 6:  The court holds that "[a]s the information that Plaintiff seeks – the names of responsible [the submitter's] employees – is publicly available in [the submitter's] Securities and Exchange Commission filings, any dispute concerning Defendant's reliance on Exemption 6 to withhold that same material is moot."