Competitive Enter. Inst. v. Dep't of Treasury, No. 12-1838, 2018 WL 1587468 (D.D.C. Apr. 2, 2018) (Collyer, J.)
Re: Request for certain records "'using the word "carbon"'"
Disposition: Granting in part and denying in part defendant's motion for summary judgment
- Litigation Considerations, Adequacy of Search: "Based on the declarations submitted by Treasury, the Court concludes that Treasury's searches were adequate." Specifically here, the court finds that "[plaintiff] fails to present evidence sufficient to establish bad faith on the part of the agency." "The operative question is not whether further records could conceivably exist, or whether other possible search avenues were available, but whether Treasury's searches were 'reasonably calculated to uncover all relevant documents.'"
- Exemption 5, Deliberative Process Privilege & Litigation Considerations, Vaughn Index/Declaration: First, the court addresses plaintiff's argument that "Treasury has no statutory authority to regulate carbon and, therefore, . . . Treasury cannot on cite Exemption 5 at all for records dealing with carbon taxes." The court finds that, "[e]ven if [plaintiff] correctly describes Treasury's authority, the need for staff to speak candidly and confidentially is perhaps most important when the discussion concerns unmapped and unexplored terrain at the border of agency authority." "The Court cannot conclude, based on [plaintiff's] submissions, that Treasury is categorically unable to assert Exemption 5 for records that discuss a carbon tax." Second, the court addresses plaintiff's argument that, "[b]ecause Treasury has not identified all senders and recipients, . . . it is impossible to determine whether some of these records actually reflect the kind of 'internal deliberations' Exemption 5 is meant to exempt." The court finds that "[s]uch omissions are not as problematic as [plaintiff] contends." "Treasury has submitted supporting affidavits that attest to the fact that such communications were intra- or inter-agency." "These declarations are entitled to a presumption of good faith and [plaintiff] has not given any reason to question that presumption here."
Overall, the court finds that "for the most part Treasury's Vaughn Index provides sufficient information to allow the Court to find that it properly claimed applicability of Exemption 5." "However, a number of records withheld by Treasury are described as staff commentary on news articles, public comments by non-agency officials, and other media originating outside the Department." "The lack of substantive detail in the Vaughn Index prevents the Court from assessing what 'deliberative process' was taking place." "Not every discussion by agency staff that touches on agency matters is protected by Exemption 5[.]"
- Litigation Considerations, "Reasonably Segregable" Requirements: The court finds that "Treasury's declarations do not indicate whether it reviewed the withheld draft memoranda to ensure that no existing policy information or neutral facts were contained therein that could be released[.]" "Treasury will be ordered to provide more detail concerning its efforts to ensure that no such information could be released in redacted form without revealing protected material." However, "[t]he Court is satisfied that Treasury has met its burden that the remaining fully-withheld correspondence, such as internal emails, contain no reasonably-segregable information."