Protect Democracy Project, Inc. v. U.S. Dep't of Energy
Protect Democracy Project, Inc. v. U.S. Dep't of Energy
Opinion of the Court
TIMOTHY J. KELLY, United States District Judge *519When a new President is elected, a "transition team" is formed to begin the process of handing over power from the old administration to the new. As part of this process, members of the transition team interact with the staffs of federal agencies. This case arises from discussions between the most recent presidential transition team and Department of Energy ("DOE") staff, specifically discussions pertaining to a questionnaire on a variety of DOE-related issues, as well as certain other discussions regarding DOE personnel. Plaintiff The Protect Democracy Project, Inc. ("Protect Democracy") filed a request under the Freedom of Information Act ("FOIA"),
The parties have cross-moved for summary judgment. ECF Nos. 12, 13.
I. Factual and Procedural Background
In early December 2016, a member of the presidential transition team contacted DOE staff with questions on a variety of topics, including a request for the names of DOE employees who had attended certain meetings regarding climate change. Def.'s Reply SoMF ¶¶ 1-2. (Like the parties, the Court will refer to these questions as the "Questionnaire.") After versions of the Questionnaire leaked to the press, the transition team disavowed it and "counseled" the employee who had prepared it.
On February 15, 2017, Protect Democracy sent DOE the following two-part FOIA request:
1) Any and all records created between November 9, 2016 and the present date by or between Department of Energy employees regarding or including Presidential Transition Team questionnaires about climate change (aka *520"global warming"), including but not limited to communications between Department of Energy employees and the following individuals: Donald Trump, Stephen Bannon, Reince Priebus, Stephen Miller, Kellyanne Conway, Sean Spicer, Michael Pence, Daniel Simmons, David Jonas, Jack Spencer, John Giordano, Kelly Mitchell, Mark Maddox, Martin Dannenfelser Jr., Thomas Norris, Travis Fisher, William Greene and Rick Perry.
2) Any and all records created between November 9, 2016 and the present date regarding personnel changes, new personnel assignments or new personnel assignment policies by or between Department of Energy employees and the Executive Office of the President or Presidential Transition Team (aka "Landing Team"), including but not limited to communications between Department of Energy employees and the following individuals: Donald Trump, Stephen Bannon, Reince Priebus, Stephen Miller, Kellyanne Conway, Sean Spicer, Michael Pence, Daniel Simmons, David Jonas, Jack Spencer, John Giordano, Kelly Mitchell, Mark Maddox, Martin Dannenfelser Jr., Thomas Norris, Travis Fisher, William Greene and Rick Perry.
Def.'s Ex. A. On February 21, 2017, DOE responded with a letter acknowledging the request. Def.'s Ex. B. From March through October 2017, DOE provided several interim responses, including documents responsive to the request. Def.'s Exs. C-F.
DOE sent its final response by letter dated December 1, 2017. Def.'s Ex. G. The letter explained that DOE's Office of Management ("MA") and Office of the Chief Human Capital Officer ("HC") had handled the request.
On April 27, 2017, Protect Democracy filed this lawsuit. ECF No. 1. After DOE completed its response to the requests, the parties filed and briefed their respective motions for summary judgment. ECF Nos. 12, 13. The parties dispute whether DOE conducted an adequate search in response to the first request (relating to the Questionnaire), and whether DOE properly invoked the deliberative-process privilege under Exemption 5. See Pl.'s Br.
In its motion papers, DOE describes the search it undertook in response to each request. For the first request, DOE explains, it searched the files of Ingrid Kolb, the Director of MA, because "all transition-related communications with the transition team were disseminated to DOE through Ms. Kolb." Morris Decl. ¶ 13. DOE initially stated that Kolb searched her email using the following terms: "transition," "questionnaire," "questions," and "personnel," which identified 21 responsive documents.
*521made a supplemental release on May 29, 2018, shortly before the filing of its reply brief. Def.'s Reply Ex. A.
For the second request, DOE searched the files of three HC employees with responsibility for "any personnel assignments between DOE employees and the Executive Office of the President or the Presidential Transition Team." Morris Decl. ¶ 22. DOE used the search term " 'beachhead,' which is the term that DOE used to refer to the transition landing team."
DOE avers, at least in its initial motion papers, that it "searched all locations likely to contain documents responsive to Plaintiff's FOIA requests."
II. Legal Standard
Under Federal Rule of Civil Procedure 56, a court must grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "Summary judgment is appropriately granted when, viewing the evidence in the light most favorable to the non-movants and drawing all reasonable inferences accordingly, no reasonable jury could reach a verdict in their favor." Lopez v. Council on Am.-Islamic Relations Action Network, Inc. ,
Congress enacted FOIA in 1966 to "pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Morley v. CIA ,
In FOIA cases, "to obtain summary judgment the agency must show that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested." Mobley v. CIA ,
In addition, if the agency has invoked any of FOIA's exemptions, the "burden is on the agency to justify withholding the requested documents, and the FOIA directs district courts to determine de novo whether non-disclosure was permissible." EPIC ,
FOIA further requires that "[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt."
III. Analysis
As explained below, both parties' motions will be granted in part and denied in part.
A. Adequacy of DOE's Search
Protect Democracy disputes the adequacy of DOE's search for documents responsive to the first request (relating to the Questionnaire). Pl.'s Br. at 9-15. Specifically, it challenges DOE's decision to search the files of only one custodian (Ingrid Kolb), as well as DOE's choice of search terms.
1. Custodians
It appears that DOE initially misconstrued the scope of the first request. DOE largely limited its search to external communications between DOE staff and the transition team, including (at most) only a small subset of internal DOE communications. See Supp. Morris Decl. ¶ 14.
While DOE sought to remedy its error by re-reviewing Kolb's emails, see Supp. Morris Decl. ¶ 15, it never reconsidered its initial decision to limit its search to Kolb's files. DOE explains that Kolb "was the DOE employee in charge of all transition-related materials and was the DOE employee who communicated directly with the DOE transition team," id. ¶ 9, that she "was involved in all communications with the DOE transition team," id. ¶ 10, and that "DOE staff was instructed to send responses to Ms. Kolb," id. ¶ 11. But DOE "has offered no reason for why no other [DOE] employee was likely to have sent, received, or been copied on responsive emails." Sea Shepherd Conservation Soc'y v. IRS ,
DOE objects that it should not be required "to search the records of every employee in the entire Department." Def.'s Reply at 3. The Court agrees such a search would be unreasonable, but Protect Democracy is not asking for that. It argues instead that DOE could (and should) have identified additional custodians likely to have responsive records. For example, Protect Democracy points to evidence in the record that Kolb emailed certain employees with a request to "coordinate" answers and send them to her. See Pl.'s Reply at 3-4; Pl.'s Reply Ex. 1. Such employees would be a logical starting place for DOE in identifying a bounded universe of additional custodians.
Therefore, the Court will order DOE to conduct an additional search that encompasses the files of additional custodians. The Court is not in a position to dictate precisely which custodians a reasonable search would encompass. Instead, the Court will direct the parties to meet and confer regarding additional custodians; if they cannot entirely agree, then DOE should proceed with its search and the parties may address the issue in renewed summary judgment briefing.
2. Search Terms
The Court is less convinced by Protect Democracy's argument that DOE's search terms are too limited. In general, courts should not "micro manage" how agencies respond to FOIA requests. Johnson v. Exec. Office for U.S. Attorneys ,
DOE applied three search terms to Kolb's files: "questionnaire," "questions," and "transition." Supp. Morris Decl. ¶ 15.
As a result, the burden shifts to Protect Democracy to raise "substantial doubt" about DOE's search. See Iturralde v. Comptroller of Currency ,
Protect Democracy argues that DOE should have used two additional sets of search terms: the terms "climate change" and "global warming," which appear in its request, see Pl.'s Br. at 13; Pl.'s Reply at 5-6, and certain words related to the current search terms, namely "question," "point," "points," "query," "queries," "request," "requests" and "feedback," see Pl.'s Br. at 13; Pl.'s Reply at 7.
On the current record, though, Protect Democracy's showing that these terms are necessary is not a strong one. For the reasons already noted, the terms "climate change" and "global warming" are not facially necessary for a reasonable search. It is also far from obvious that the synonyms Protect Democracy has proposed are necessary. Agencies are not required to use an exhaustive set of synonyms in electronic searches. Cf.
*525Looks Filmproduktionen GmbH v. CIA ,
Moreover, DOE objects that the proposed terms are likely to find an excessively large number of unresponsive documents. Def.'s Reply at 4. This is, at least in principle, a valid concern. "[F]ederal agencies properly use search terms that are designed to return responsive documents as a means of targeting their resources in the most efficient manner." Looks Filmproduktionen ,
However, the Court will not issue a final ruling on DOE's search terms at this time, because it may well be that the work of identifying an appropriate list of custodians will also lead to additional search terms. Therefore, as the parties meet and confer about additional custodians, they shall meet and confer about search terms as well.
B. Exemptions
Protect Democracy has not challenged DOE's invocation of Exemption 6, see Pl.'s Br. at 20 n.26, and the Court determines that those withholdings are proper. The Court also concludes that DOE has satisfied FOIA's segregability requirement with respect to the withholdings under Exemption 6.
Protect Democracy does challenge DOE's invocation of the deliberative-process privilege under Exemption 5 in some documents. Exemption 5 covers "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."
The record is unclear regarding whether Protect Democracy also objects to the Exemption 5 withholdings in DOE's May 2018 supplemental release. Protect Democracy has not specifically challenged any of them. See Pl.'s Reply at 9-18. But at least some of those withholdings arguably fall within the scope of Protect Democracy's intended challenge. See Pl.'s Br. at 16 n.22; Supp. Vaughn Index. In light of this uncertainty, the Court will deny both motions without prejudice insofar as they relate to DOE's invocation of Exemption 5 in the documents listed on DOE's Supplemental Vaughn Index. Therefore, if DOE continues to withhold information under Exemption 5 in these documents, and Protect Democracy in fact challenges those withholdings, the parties must address these documents in renewed motions for summary judgment following the completion of DOE's search.
Only two of the documents that DOE released in its initial 2017 productions appear to be in dispute: a version of the Questionnaire that was sent to the transition team, Vaughn Index at 1-2, and an email chain in which employees discussed the process for obtaining a security clearance for incoming Secretary Perry, id. at 28-30. See Pl.'s Br. at 16-20 & n.22; Pl.'s Reply at 9-18.
1. Questionnaire
Protect Democracy raises a threshold objection to DOE's invocation of Exemption 5 in the version of the Questionnaire that DOE employees sent back to the presidential transition team with their responses: the transition team is not an "agency" under FOIA, and therefore, Protect Democracy argues, this communication is not an "inter-agency" record within the scope of Exemption 5. Pl.'s Reply at 12-13. The Court concludes that the instant briefing is inadequate to reach a decision on this important and interesting issue, which was first raised in Protect Democracy's reply.
A rather old decision from another district court held that the presidential transition team is not an "agency" under FOIA, or even part of the Executive Branch at all. See Ill. Inst. for Continuing Legal Educ. v. U.S. Dep't of Labor ,
However, assuming that the transition team is not in fact an "agency" under FOIA, this Court is not certain it necessarily follows that documents shared between DOE and the transition team fall outside Exemption 5. The D.C. Circuit has held that agency communications with the White House are "inter-agency" communications even though the President and his immediate staff are not an "agency" within the meaning of FOIA. Judicial Watch, Inc. v. Dep't of Energy ,
Protect Democracy has not addressed how the D.C. Circuit's decisions in Judicial Watch and Public Citizen bear on this threshold question, and DOE has not had the opportunity to address this question at all. Instead of ordering supplemental briefing, the Court will require the parties, if they continue to dispute the redactions in the Questionnaire (or other communications between DOE and the transition team), to address this threshold issue in renewed motions for summary judgment to be filed after DOE completes its search.
2. Emails Regarding Secretary Perry's Security Clearance
Protect Democracy also objects to DOE's partial redaction of an email chain containing "internal deliberations among DOE employees regarding how then Governor Perry could get the necessary security clearances in place for his work as the Secretary." Vaughn Index at 28. These discussions, Protect Democracy argues, did not involve "policy-oriented judgment" as required to fall within the deliberative-process privilege. Pl.'s Br. at 18; see Pl.'s Reply at 15-18. The Court agrees that the instant record does not support DOE's withholdings.
On the one hand, courts have found many types of agency deliberations-even ones that do not directly implicate an agency's primary regulatory function-to fall within the privilege. For example, the D.C. Circuit has held that the privilege covers predecisional deliberations about official agency histories. See Nat'l Sec. Archive ,
On the other hand, "[t]o fall within the deliberative process privilege, materials must bear on the formulation or exercise of agency policy-oriented judgment ." Petrol. Info. Corp. v. U.S. Dep't of Interior ,
DOE's Vaughn index states that the redacted material in question "consists of opinions and recommendations provided as part of the DOE's decision-making process before DOE reached any final decisions on the most expedient method for securing the necessary security clearance and before Governor Perry was sworn in as the Secretary of Energy." Vaughn Index at 28-29. But it is not clear to the Court how these discussions involved any kind of policy judgment, as opposed to purely logistical considerations. Nor has DOE adequately explained how releasing this information would be likely to stifle intra-agency communication. The Court also notes that the parties have cited no prior case in which information regarding security clearances was held exempt under Exemption 5, although such information has been protected under FOIA's law-enforcement exemption, see Morley v. CIA ,
DOE, citing Chemical Manufacturers Ass'n v. CPSC ,
Here too, if DOE continues to insist on these redactions (and Protect Democracy *529continues to challenge them), it must file a renewed motion for summary judgment after its search is complete and provide additional support for them, whether by filing a revised Vaughn index, filing additional declarations, or submitting the documents themselves for in camera review.
IV. Conclusion and Order
For reasons stated above, it is hereby ORDERED that both parties' motions for summary judgment (ECF Nos. 12 and 13) are GRANTED IN PART and DENIED IN PART . The Court rules as follows:
• DOE has not conducted an adequate search in response to Protect Democracy's first request (relating to the Questionnaire).
• DOE has conducted an adequate search in response to Protect Democracy's second request (relating to DOE personnel).
• DOE has properly invoked Exemption 6 in all documents it has released to Protect Democracy thus far.
• DOE has properly invoked the deliberative-process privilege under Exemption 5 in all documents released thus far, except that the Court denies both motions without prejudice insofar as they relate to DOE's invocation of Exemption 5 in the following documents: (1) DOE's response to the transition team's Questionnaire, (2) documents discussing Secretary Perry's security clearance, and (3) the documents DOE released after Plaintiff's cross-motion was filed. If the parties continue to dispute these withholdings, they shall address them in their renewed motions for summary judgment (see below).
It is FURTHER ORDERED that the following schedule shall govern further proceedings:
1. The parties shall promptly meet and confer regarding additional custodians and appropriate search terms for DOE's search in response to Protect Democracy's first request (relating to the Questionnaire);
2. The parties shall file a status report with the Court regarding their progress no later than thirty (30) days after the date of this Order, and additional status reports every thirty (30) days thereafter until DOE has released all nonexempt material responsive to the request; and
3. Within thirty (30) days after DOE has completed its final release, the parties shall meet, confer, and file a joint report setting forth the following information:
(a) Whether the parties continue to disagree regarding the adequacy of DOE's search, and if so, a precise description of the areas where they agree and disagree;
(b) Whether the parties continue to disagree regarding DOE's withholdings, and if so, a list of the documents in dispute (and for each document, the exemption or exemptions at issue); and
(c) If necessary, a proposed schedule for renewed motions for summary judgment.
SO ORDERED.
The Court has considered the entire record in connection with the motions, including the following documents: ECF No. 12-1 ("Def.'s Br."); ECF No. 12-2 ("Morris Decl."); ECF No. 12-3 at 1-5 ("Def.'s Ex. A"); id. at 6-7 ("Def.'s Ex. B"); id. at 8-9 ("Def.'s Ex. C"); id. at 10-13 ("Def.'s Ex. D"); id. at 14-19 ("Def.'s Ex. E"); id. at 20-24 ("Def.'s Ex. F"); id. at 25-29 ("Def.'s Ex. G"); id. at 30-89 ("Vaughn Index"); ECF No. 12-4 ("Def.'s SoMF"); ECF No. 13 at 3-29 ("Pl.'s Br."); id. at 30-42 ("Pl.'s Resp. SoMF"); ECF No. 13-1 ("Stewart Decl."); ECF No. 13-2 (exhibits 1 to 14 to the Stewart Declaration, each of which is cited as "Pl.'s Ex. __"); ECF No. 17 ("Def.'s Reply"); ECF No. 17-1 at 1-5 ("Supp. Morris Decl."); id. at 11-14 ("Def.'s Reply Ex. A"); id. at 15-25 ("Supp. Vaughn Index"); id. at 26-31 ("Def.'s Reply Ex. B"); ECF No. 17-2 ("Def.'s Reply SoMF"); ECF No. 19 ("Pl.'s Reply"); ECF No. 19-1 ("Supp. Stewart Decl."); ECF No. 19-2 (exhibits 1 and 2 to the Supplemental Stewart Declaration, each of which is cited as "Pl.'s Reply Ex. __"). The Court has disregarded what appears to be an erroneously filed second version of the Supplemental Declaration of Alexander C. Morris (which seems to be missing a paragraph). See ECF No. 17-1 at 6-10.
Protect Democracy has not disputed the adequacy of DOE's search in fulfillment of the second request (relating to DOE personnel). See Pl.'s Br. at 9-15. In the absence of any challenge, the Court concludes that the record supports summary judgment for DOE on this point.
DOE's supplemental declaration states that MA initially limited its search to communications "between DOE and the DOE transition team." Supp. Morris Decl. ¶ 14. It is not entirely clear whether the "DOE transition team" means DOE staff tasked with assisting the presidential transition team, or staff of the presidential transition team tasked with reviewing DOE.
While DOE initially claimed to have applied an additional term, "personnel," see Morris Decl. ¶ 17, it appears that this term was never actually applied and was ultimately abandoned in the subsequent electronic search of Kolb's email, see Supp. Morris Decl. ¶¶ 13-15.
With respect to the remaining documents listed in DOE's original Vaughn index, the Court concludes, based on the record and in the absence of any challenge from Protect Democracy, that Exemption 5 and FOIA's segregability requirements have been satisfied.
Reference
- Full Case Name
- The PROTECT DEMOCRACY PROJECT, INC. v. U.S. DEPARTMENT OF ENERGY
- Cited By
- 1 case
- Status
- Published