Climate Investigations Center v. United States Department of Energy
Civil Action No. 2016-0124
| D.D.C. | Sep 11, 2017Background
- Plaintiff Climate Investigations Center filed a FOIA request to DOE/NETL for records (1998–2011) about funding, development, and communications concerning the Kemper Project (a "clean coal"/TRIG plant) and related parties (Southern Company, Mississippi Power, BGR Group).
- NETL and DOE Headquarters (Office of Fossil Energy) searched multiple offices, produced several thousand pages with redactions, and consulted Southern Company about asserted trade-secret/confidentiality concerns.
- Plaintiff sued, challenging the adequacy of the agency search and DOE’s use of FOIA Exemptions 4, 5, and 6 to withhold or redact responsive records; the parties filed cross-motions for summary judgment.
- The agency invoked Exemption 4 for commercial/cost and proprietary technical information (submitted by Southern Company), Exemption 5 for internal deliberative communications and some attorney-client material, and Exemption 6 for personal contact information of company employees.
- The court found material factual disputes about the adequacy of the search (specifically whether a separate Office of the Secretary search was required) and about the applicability of Exemptions 4 and 5; Exemption 6 disputes were moot because the withheld names were publicly available via SEC filings.
- The court denied both parties’ motions without prejudice and allowed DOE to supplement the record or perform additional searches and renew its motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of search | DOE failed to search the Office of the Secretary separately and should have used additional search terms | Searches of NETL and Office of Fossil Energy (including searched terms) were sufficient and searching the Secretary would be duplicative | Material fact issue: DOE must either search Office of the Secretary or provide detailed affidavit explaining why its searches captured Secretary records; summary judgment denied |
| Exemption 4 (commercial/confidential) | Cost breakdowns, subcontractor names, proprietary technical/financial details are not confidential or exempt | Information was obtained from Southern Company and disclosure would impair govt. info-gathering and cause substantial competitive harm | Material fact issue: agency’s and Southern Company’s declarations were too conclusory to meet the mandatory-disclosure/confidentiality test; summary judgment denied |
| Exemption 5 (deliberative process & attorney-client) | DOE’s redactions are overbroad and declarants lack personal knowledge; some records are non-privileged business communications | Withheld records are predecisional/deliberative and some contain privileged legal advice | Material fact issue: DOE did not identify agency decisions tied to documents or provide sufficient detail to demonstrate privilege; summary judgment denied |
| Exemption 6 (privacy of names/contact info) | Redactions were arbitrary; names of responsible business persons are of public interest | Withholding is appropriate to protect privacy; but information is publicly available in SEC filings | Moot: Plaintiff conceded (via its declarant) that names are publicly available in SEC filings; Exemption 6 dispute is moot |
Key Cases Cited
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (standard for summary judgment)
- Oglesby v. U.S. Dep't of the Army, 920 F.2d 57 (D.C. Cir. 1990) (adequate FOIA search standard)
- SafeCard Servs., Inc. v. SEC, 926 F.2d 1197 (D.C. Cir. 1991) (agency may rely on affidavits about search practices)
- Wash. Post Co. v. U.S. Dep't of Health & Human Servs., 690 F.2d 252 (D.C. Cir. 1982) (Exemption 4 mandatory-disclosure/confidentiality test)
- Niagara Mohawk Power Corp. v. U.S. Dep't of Energy, 169 F.3d 16 (D.C. Cir. 1999) (Exemption 4 requires showing of actual competition and likely substantial competitive injury)
- Aguiar v. DEA, 865 F.3d 730 (D.C. Cir. 2017) (court scrutinizes adequacy of search when there are clear leads to other offices)
- Judicial Watch, Inc. v. U.S. Dep't of Defense, 847 F.3d 735 (D.C. Cir. 2017) (Exemption 5 privileges in FOIA context)