UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________ ) CLIMATE INVESTIGATIONS CENTER, ) ) Plaintiff, ) ) v. ) Case No. 16-cv-00124 (APM) ) UNITED STATES DEPARTMENT ) OF ENERGY, ) ) Defendant. ) _________________________________________ )

MEMORANDUM OPINION

I.

The parties in this long-running Freedom of Information Act (FOIA) dispute are before the

court for their fifth round of summary judgment briefing. Def.’s Third Renewed Mot. for Summ.

J., ECF No. 72 [hereinafter Def.’s Mot.]; Pl.’s Cross-Mot. for Summ. J., ECF No. 73 [hereinafter

Pl.’s Mot.]. This iteration centers on issues arising out of the court’s December 6, 2019 Order

requiring Defendant U.S. Department of Energy (“DOE”) to conduct a supplemental search of the

agency’s Office of the Secretary for additional, non-duplicative responsive records.

Climate Investigations Ctr. v. U.S. Dep’t of Energy (Climate Investigations III), No. 16-cv-124

(APM),

(D.D.C. Dec. 6, 2019). Plaintiff Climate Investigations Center

challenges (1) the adequacy of the supplemental search, (2) DOE’s partial or entire withholding of

nine records under Exemption 5 pursuant to the deliberative process privilege, and (3) whether

DOE has met the FOIA Improvement Act’s “foreseeable harm standard” as to eight of the nine

challenged records. The court takes up these issues in that order. As with the last round of cross-motions for

summary judgment, the court presumes familiarity with the facts of this case as set forth in its

previous opinions 1 and therefore discusses them only as necessary to address the outstanding

issues raised by the parties. For the reasons that follow, the parties’ cross-motions for summary

judgment are granted in part and denied in part.

II.

A.

An agency in a FOIA case must show that it conducted an adequate search. See Students

Against Genocide v. Dep’t of State,

(D.C. Cir. 2001). An adequate search is

one that is “reasonably calculated to uncover all relevant documents.” Oglesby v. U.S. Dep’t of

the Army,

(D.C. Cir. 1990). The agency bears the burden of proving that it

performed such a search, and it may rely on sworn affidavits or declarations to do so. See SafeCard

Servs., Inc. v. SEC,

(D.C. Cir. 1991). The court may grant summary judgment

to the agency based on this evidence if it is reasonably specific and contradicted by neither record

evidence “nor . . . evidence of agency bad faith.” Mil. Audit Project v. Casey,

(D.C. Cir. 1981); Beltranena v. Clinton,

, 181–82 (D.D.C. 2011). A plaintiff

can rebut an agency’s supporting affidavits and declarations by demonstrating, with “specific

facts,” that there remains a genuine issue as to whether the agency performed an adequate search

for documents responsive to the plaintiff’s request. See Span v. U.S. Dep’t of Just.,

(D.D.C. 2010) (quoting U.S. Dep’t of Just. v. Tax Analysts,

(1989)).

Agency affidavits and declarations are accorded “a presumption of good faith, which cannot be

rebutted by purely speculative claims about the existence and discoverability of other documents.”

1 See Climate Investigations Ctr. v. U.S. Dep’t of Energy (Climate Investigations I), No. 16-cv-124 (APM),

(D.D.C. Sept. 11, 2017), at *1–3.

2 Shapiro v. U.S. Dep’t of Just., No. 20-5318,

, at *3 (D.C. Cir. July 15, 2022)

(internal quotation marks omitted).

B.

In 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. Climate Investigations III,

, at *5. To establish the adequacy of that search, DOE offers the

Third Supplemental Declaration of Alexander C. Morris, a FOIA Officer at DOE. See Def.’s Mot.,

Ex. 2, ECF No. 72-3 [hereinafter Suppl. Morris Decl.]. Morris 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. Id. ¶ 14.

Morris further explains that DOE used search terms that the court previously found to be

reasonable. Id. And he notes that DOE conducted an additional search for electronic records

across the same custodians using two specific search terms requested by Plaintiff. Id. ¶ 15.

Still, Plaintiff says that DOE’s search was not adequate. Plaintiff first faults DOE for what

it describes as “irregularities” in the production. Pl.’s Mot., Pl.’s Mem. of P. & A. in Supp. of Pl.’s

Mot., ECF No. 73-1 [hereinafter Pl.’s Mem.], at 11–12. These include receiving several duplicate

documents from past productions in the most recent productions, not receiving a missing

attachment to a responsive email from DOE’s April 2021 production, and failing to produce a

letter originally authored by Southern Company and sent to DOE. Id. at 12, 14–15. But these so-

called “irregularities” do not demonstrate an inadequate search. “[T]he adequacy of a search is

determined not by the fruits of the search, but by the appropriateness of its methods.” See Reps.

Comm. for Freedom of Press v. FBI (Reps. Comm. I),

(D.C. Cir. 2017) (internal

quotation marks and alterations omitted). Plaintiff does no more than attack the search’s output,

3 not the methods employed to conduct it. A “small collection of . . . technical failings” are not

indicative of an inadequate search. SafeCard Servs.,

.

Plaintiff also claims that, based on the records produced, DOE did not search for records

from the “desk of the Secretary.” Pl.’s Mem. at 13. However, as DOE points out, the supplemental

Vaughn index contains multiple emails from then-Secretary Steven Chu. See Def.’s Mot., Ex. 4,

ECF No. 72-4 [hereinafter Suppl. Index], at 84, 98, 118. Plaintiff’s mere speculation that more

records should exist does not create a genuine dispute of fact that the search was inadequate.

Suppl. Morris Decl. ¶ 14; see also Shapiro,

, at *3.

Plaintiff further asserts that DOE failed to adequately follow up on leads that arose during

the search. Pl.’s Mem. at 14–15. Specifically, Plaintiff argues that the failure of the search to turn

up responsive records that would “logically be created around key meetings concerning the future

of the Kemper coal plant” suggests that Defendant was required to alter its search parameters or

otherwise take additional steps to locate them. Id. at 14. Plaintiff is correct that DOE cannot bury

its head in the sand and must “follow through on obvious leads to discover requested documents.”

Valencia-Lucena v. U.S. Coast Guard,

(D.C. Cir. 1999). Once again, however,

Plaintiff’s speculation and dissatisfaction with the records produced is inadequate to undermine

the adequacy of DOE’s search. It has failed to show that DOE ignored a lead that was “both clear

and certain” and “so apparent that the [agency could not] in good faith fail to pursue it.” Mobley v.

CIA,

(D.C. Cir. 2015) (internal quotation marks omitted).

For these reasons, the court grants Defendant’s motion for summary judgment as to the

adequacy of its supplemental search of the Office of the Secretary.

4 III.

A.

Next, Plaintiff argues that nine records have been improperly withheld or redacted under

Exemption 5. An agency bears the burden of showing that it properly withheld materials pursuant

to a statutory exemption. Citizens for Resp. & Ethics in Wash. v. U.S. Dep’t of Just.,

(D.D.C. 2014). An agency may meet its burden “by submitting sufficiently detailed

affidavits or declarations, a Vaughn index of the withheld documents, or both, to demonstrate that

the government has analyzed carefully any material withheld and provided sufficient information

as to the applicability of an exemption to enable the adversary system to operate.” Brennan Ctr.

for Just. v. U.S. Dep’t of State,

(D.D.C. 2017). “If the agency’s affidavits

provide specific information sufficient to place the documents within the exemption category, if

this information is not contradicted in the record, and if there is no evidence in the record of agency

bad faith, then summary judgment is appropriate without in camera review of the documents.”

ACLU v. U.S. Dep’t of Def.,

(D.C. Cir. 2011) (internal quotation marks omitted).

B.

1.

Exemption 5 allows an agency to withhold “inter-agency or intra-agency memorandums

or letters that would not be available by law to a party other than an agency in litigation with the

agency.”

(b)(5). This exemption “protect[s] the decision making processes of

government agencies,” including “documents reflecting advisory opinions, recommendations and

deliberations comprising part of a process by which governmental decisions and policies are

formulated.” NLRB v. Sears, Roebuck & Co.,

(1975) (internal quotation marks

omitted); see also Loving v. Dep’t of Def.,

(D.C. Cir. 2008). The exemption is

5 intended to “improve[] agency decisionmaking” by “encourag[ing] candor” and “blunt[ing] the

chilling effect that accompanies the prospect of disclosure.” U.S. Fish & Wildlife Serv. v. Sierra

Club, Inc.,

, 785 (2021).

For the deliberative-process privilege to apply, a document must be both “predecisional”

and “deliberative.”

at 785–86; see also Mapother v. Dep’t of Just.,

(D.C.

Cir. 1993). Material is “predecisional” if “it was generated before the adoption of an agency

policy,” and it is “deliberative” if “it reflects the give-and-take of the consultative process.”

Coastal States Gas Corp. v. Dep’t of Energy,

(D.C. Cir. 1980).

The D.C. Circuit recently underscored the type of information that an agency must provide

to justify an Exemption 5 withholding. The agency should endeavor to identify:

the “who,” i.e., the roles of the document drafters and the recipients and their places in the chain of command; the “what,” i.e., the nature of the withheld content; the “where,” i.e., the stage within the broader deliberative process in which the withheld material operates; and the “how,” i.e., the way in which the withheld material facilitated agency deliberations.

Jud. Watch, Inc. v. U.S. Dep’t of Just.,

(D.C. Cir. 2021). The court did not say that

all of these details are prerequisite to substantiate an Exemption 5 withholding. However, an

agency must at least provide enough detail for the court to evaluate (1) the deliberative process

involved and (2) the nature of the decisionmaking authority vested in the person issuing the

disputed record or that person’s position in the chain of command. See id.

2.

Before turning to the records, the court notes that, among its justifications,

DOE emphasizes that “five of the documents contain drafts,” three of which are draft talking

points. Def.’s Reply in Supp. of Def.’s Mot & in Opp’n to Pl.’s Mot., ECF No. 76, at 9–10.

Drafts are not, however, per se exempt from FOIA disclosure. Jud. Watch, 20 F.4th at 55–56;

6 see also U.S. Fish & Wildlife Serv., 141 S. Ct. at 786 (“That is not to say that the label ‘draft’ [in

the context of the deliberative process privilege] is determinative.”). The agency still must identify

the “deliberative component.” Reps. Comm. for Freedom of the Press v. FBI (Reps. Comm. II),

(D.C. Cir. 2021). Thus, while the draft status of a record is relevant to the

Exemption 5 inquiry, it is not dispositive.

The nine disputed records as identified in DOE’s Vaughn index are as follows: (1)–(3) May

21, 2020 Production Docs 2, 6, and 7; (4)–(5) September 30, 2020 Production Docs 7 and 9;

(6) November 25, 2020 Doc 1; (7) December 31, 2020 Doc 1; (8) February 25, 2021 Doc 1; and

(9) April 5, 2021 Doc 15. See Suppl. Index at 2–3, 4–7, 74–75, 78–80, 121–23, 128–34, 138–42,

171–74; Pl.’s Mem. at 16, 20. Plaintiff objects to these withholdings on two principal grounds:

(1) that the “decisions” cited by DOE for a number of the challenged documents do not closely

relate to an agency decision for purposes of Exemption 5, and instead the agency is improperly

relying on a “wide ‘umbrella’ decision” process “as a catch-all” to responsive material, and (2) that

portions of the withheld or redacted documents contain segregable factual information that must

be disclosed. Pl.’s Mem. at 18–20. Plaintiff’s objections are well taken as to some but not all

records.

1. May 21, 2020 Production Doc 2. DOE’s justification for withholding this record

is lacking. Although the Vaughn entry identifies the author and recipient of the email, see Suppl.

Index at 2–3, the agency fails to explain the employees’ places in the decisionmaking chain. The

entry also lacks detail about the deliberative process involved. It says only that the discussion

concerned “coal projects with tax credits” and apparently reflects “opinions and projections” from

the Treasury Department “as to the status of the coal projects before the government reached any

7 final decisions about the coal projects.” Id. at 2. That description does not tell the court what

deliberative process is involved or how the record relates to that deliberative process.

2. May 21, 2020 Production Doc 6. 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.” Suppl. Index at 4. 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. See, e.g., Khatchadourian v. Def.

Intel. Agency, No. 16-cv-311 (RCL),

, at *13 (D.D.C. Mar. 31, 2022) (finding

“talking points created for internal briefing meetings” protected); Advancement Project v. U.S.

Dep’t of Homeland Sec.,

, 140 (D.D.C. 2021) (holding that “proposed talking

points for a meeting between ICE Leadership and the Acting Secretary of Homeland Security”

were protected (internal quotation marks omitted)); Ctr. for Biological Diversity v. EPA,

, 23–25 (D.D.C. 2019) (holding that “informal paper for EPA staff to prepare for

a meeting,” “internal annotated agenda for a briefing of the Assistant Administrator,” “talking

points and background for EPA staff to prepare for a meeting,” and “internal status report for a

briefing of the Assistant Administrator” were protected (internal quotation marks omitted)).

Plaintiff protests that a “meeting” with a third party is not an agency decision. Pl.’s Mem. at 18.

But that misconstrues the nature of the relevant decision. The decision is “where to move the

IGCC plant.” The record is therefore privileged. See Khatchadourian,

, at *13.

3. May 21, 2020 Production Doc 7. This record reflects a discussion of “potential

talking points” in advance of a phone call between the Secretary, Southern Company, and

8 Governor Barbour that pertained to the agency’s decision on “whether to approve the relocation

of the Kemper plant.” Suppl. Index at 6. DOE’s withholding of this record was proper for the

same reasons as the one immediately above. See Ecological Rts. Found. v. EPA, No. 19-cv-980

(BAH),

, at *15 & n.8 (D.D.C. Feb. 13, 2021) (“At least two circuits, and the

overwhelming majority of Judges on this Court, have thus concluded that an agency’s

consideration of what information to present to external parties and how to present it is a decision

in itself, distinct from the underlying policy decision that is the subject of any anticipated

communication, and thus can qualify a record of such consideration for exemption under the

deliberative process privilege.”) (citing cases), vacated in part by reconsideration on other

grounds,

(D.D.C. 2021).

Plaintiff expresses skepticism of DOE’s description of this record as “talking points”

because it appears as “answers to factual questions.” Pl.’s Mem. at 19. But this format, by itself,

does not defeat the deliberative-process privilege. See, e.g., Husch Blackwell LLP v. U.S. EPA,

, 122 (D.D.C. 2020) (holding that “draft question and answer responses” in

preparation for the public release of information were protected by Exemption 5); Sierra Club v.

U.S. Dep’t of Interior,

(D.D.C. 2004) (finding “draft questions and answers”

covered by the deliberative process privilege). Also, as to Plaintiff’s suggestion that the record

improperly withholds facts, the Vaughn index states that the record’s factual information “is

inextricably intertwined with deliberative content.” Suppl. Index at 7. Plaintiff offers no reason

to upset the good faith presumption afforded that representation.

4. September 30, 2020 Production Doc 7. This record is an inter-agency

communication between DOE and the Office of Management and Budget (“OMB”). Suppl. Index.

at 74–75. The withheld email and attachment “contain opinions and projected goals for various

9 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. The ambiguity is

exacerbated by the fact that the date of the email is June 2, 2010, which post-dates the decision as

to the Kemper plant’s relocation, according to other DOE entries, by more than two years.

See Suppl. Index at 4 (May 2008);

(April 2008). 2 Also, the failure to explain who the

primary actors are on the email and what role they played in the decisionmaking process renders

the court unable to assess the deliberative nature of the communication. As a result, the agency’s

description of this document is inadequate to sustain the Exemption 5 invocation.

5. September 30, 2020 Production Doc 9. This record is an email, dated May 10,

2010, between DOE employees discussing “potential information to be included and different

options for the call before the meeting with Commissioner Betz and before DOE reached the final

decision about the Kemper project.” Suppl. Index. at 78–80. This 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. Avila v. U.S. Dep’t of State, No. 17-cv-2685 (RC),

, at *12 (D.D.C. June 10, 2022) (affirming application of Exemption 5 to various briefing

and talking points materials before meetings with outside third parties); Ecological Rts. Found.,

, at *15.

2 This is not to say that a communication that post-dates an agency decision cannot still be protected by Exemption 5. See, e.g., Campaign Legal Ctr. v. Dep’t of Just.,

(D.C. Cir. 2022). But DOE has not made the case to justify such treatment here.

10 6. November 25, 2020 Production Doc 1. This 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.” Suppl. Index at 121–22. This record is protected for the same reasons as the talking

points email discussed in Paragraph 2, supra.

7–8. December 31, 2020 Production Doc 1 & February 25, 2021 Production Doc 1.

The court takes up these two records in tandem because of their similarity. Suppl. Index at 128–

34; id. at 138–42. Each is an email and attachments from Kevin Samy 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,” id. at 129, and the second email includes

“a draft response to a request from Southern Company,” id. at 138. These 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 drafts

might relate to a matter of policy, but from the scant description contained in the Vaughn index

the court has no way of knowing. DOE shall produce the responsive information from these

emails.

9. April 5, 2021 Production Doc. 15. The 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

11 CCS meeting.” Id. at 171. For reasons already discussed, the “briefing memorandum” is protected

under Exemption 5. See Avila,

, at *12.

IV.

A.

Finally, Plaintiff argues that DOE’s withholding of eight of the nine foregoing records does

not meet the “foreseeable harm” standard set out in the FOIA Improvement Act. 3 Pl.’s Mem. at

21–22. Under the FOIA Improvement Act of 2016, agencies must release a record, even if it falls

within a FOIA exemption, unless “the agency reasonably foresees that disclosure would harm an

interest protected by an exemption” or “disclosure is prohibited by law.”

(a)(8)(A)(i). “[T]he foreseeable harm requirement imposes an independent and meaningful

burden on agencies,” Reps. Comm. II,

(internal quotation marks and alterations

omitted), that cannot be satisfied with “generalized assertions.” Machado Amadis v. U.S. Dep’t of

State,

, 371 (D.C. Cir. 2020) (internal question marks omitted). To satisfy its burden

under the FOIA Improvement Act, “an agency must identify specific harms to the relevant

protected interests that it can reasonably foresee would actually ensue from disclosure of the

withheld materials and connect the harms in a meaningful way to the information withheld.”

Rosenberg v. U.S. Dep’t of Def.,

, 259 (D.D.C. 2020) (internal quotation marks

omitted). Mere speculation about potential harm or boilerplate justifications are insufficient.

See Jud. Watch, Inc. v. U.S. Dep’t of Com.,

(D.D.C. 2019).

B.

For those withholdings sufficiently justified by DOE, the agency has identified the specific

information at issue and concluded that disclosure would “chill future internal discussion.”

3 Plaintiff does not challenge April 2021 Doc 15 under this standard. See Pl.’s Reply in Supp. of Pl.’s Mot. & Opp’n to Def.’s Mot., ECF No. 78, at 10.

12 See generally Suppl. Index. 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. Machado Amadis, 971 F.3d at 371; see also Nat’l Immigr.

Project of Nat’l Laws. Guild v. ICE, No. 17-cv-2448 (APM),

, at *5 (D.D.C.

Sept. 29, 2020) (finding a FOIA officer’s declaration dismissed by the plaintiff as “mere boiler

plate” to be satisfactory under Machado Amadis (internal quotation mark omitted)).

The D.C. Circuit’s recent decision in Reporters Committee II is distinguishable. There,

“[t]he FBI’s broad assertion of foreseeable harm” “was contained in just two umbrella paragraphs

that purported to sweepingly address all of the deliberative information in the case.”

(internal quotation marks omitted). Here, in contrast, DOE articulated the foreseeable harm

for each document withheld or redacted and tied it to the specific document or decision at issue.

See, e.g., Suppl. Index at 122 (stating as to November 25, 2020 Production Doc 1, “[r]elease of

these draft talking points would reveal potential site outcomes that did not ultimately form part of

the agency’s final decision and would compromise the deliberative process by which DOE makes

its decisions”). “Plaintiff[] undoubtedly would prefer [DOE] to have provided more specifics, but

[t]he degree of detail necessary to substantiate a claim of foreseeable harm is context-specific.”

Nat’l Immigr. Project,

, at *5 (internal quotation marks omitted). Based on the

nature of the documents and the decision-making process at issue, the court finds that the agency

has satisfied its burden under the statute. 4

4 Defendant’s Supplemental Declaration specifically attests to a two-stage, line-by-line segregability review of the withheld information. Suppl. Morris Decl. ¶¶ 19–25. DOE has met its burden as to factually segregable information. See Loving,

; see also Johnson v. Exec. Off. for U.S. Att’ys,

, 776–77 (D.C. Cir. 2002).

13 V.

For the foregoing reasons, the court grants in part and denies in part Defendant’s Third

Renewed Motion for Summary Judgment, ECF No. 72, and grants in part and denies in part

Plaintiff’s Cross-Motion for Summary Judgment, ECF No. 73. DOE shall disclose to Plaintiff

information withheld as to the following entries in the Vaughn index:

1. May 21, 2020 Production Doc 2;

2. September 30, 2020 Production Doc 7;

3. December 31, 2020 Production Doc 1 (as to responsive material only); and,

4. February 25, 2021 Production Doc 1 (as to responsive material only).

A final, appealable order accompanies this Memorandum Opinion.

Dated: August 11, 2022 Amit P. Mehta United States District Judge

14