Env’t & Policy Inst. v. TVA, No. 22-220, 2025 WL 410075 (E.D. Tenn. Feb. 5, 2025) (Varlan, J.)

Env’t & Policy Inst. v. TVA, No. 22-220, 2025 WL 410075 (E.D. Tenn. Feb. 5, 2025) (Varlan, J.)

Re:  Request for records concerning defendant’s involvement with certain outside groups, as well as for records concerning defendant’s insurance policies

Disposition:  Denying plaintiff’s motion for attorney fees and costs

• Attorney Fees, Eligibility:  “[T]he Court finds that plaintiff has not ‘substantially prevailed’ within the meaning of 5 U.S.C. § 552(a)(4)(E)(i) and is therefore ineligible for a discretionary award of attorney fees and other litigation costs.”  The court relates that “plaintiff argues that it has substantially prevailed in this litigation ‘where TVA voluntarily released new documents and withdrew exemption claims from others’ . . . .”      “Although it appears to concede that it has not prevailed via the ‘judicial order’ pathway, it submits that its lawsuit catalyzed TVA to voluntarily change its position as to the release of previously withheld documents and the invocation of FOIA exemptions over certain documents.”  “In response, defendant argues that plaintiff is ineligible for an award because TVA did not voluntarily or unilaterally change its position at any point during this litigation . . . .”  “Specifically, TVA submits that its changed positions as to withholdings and exemptions were caused by . . . its legal counsel [independently voluntarily withdrawing its contention that Exemption 4 applied]. . . and not by TVA, itself . . . .”  “In other words, defendant characterizes its actions as ‘mere “pass through” of [its legal counsel’s] independent decisions to release these documents’ . . . .”  “[Plaintiff] argues that defendant cannot defer to a third-party like [defendant’s legal counsel] because ‘the buck stops with TVA’ . . . .”      The court finds that “[it] analyzed at length defendant’s decisions to withhold and redact documents in response to plaintiff’s two 2021 FOIA requests.”  “Ultimately, the Court determined that defendant satisfied its disclosure obligations under the FOIA and granted defendant’s motion for summary judgment . . . .”  “Despite this result, plaintiff argues that defendant’s release of additional documents and its revised invocations of certain FOIA Exemptions during the pendency of this litigation prove that it ‘substantially prevailed.’”  “But defendant released most of these documents in response to new representations by [its legal counsel] regarding its sought exemptions – and before any motion practice . . . .”  “The Court previously acknowledged plaintiff’s continuing objection to [defendant’s counsel’s] participation in the FOIA withholding process in its Memorandum Opinion, and it bears repeating here ‘that FOIA expressly envisions cooperation of non-agency third parties in its statutory text’ . . . .”  “In the context of Exemption 4, in particular, defendant must rely in part upon the good faith representations of a third-party to determine whether information is ‘commercial’ or ‘confidential’ . . . .”      “And to the extent that plaintiff argues it is entitled to an award due to defendant’s revisions of its Vaughn index, courts have rejected such arguments.”  “In sum, plaintiff has neither demonstrated that it prompted a ‘voluntary disclosure or change in position by the Government,’ . . . nor that ‘the action had a substantive causative effect on the delivery of the information,’ . . . sought in its original FOIA requests.”