S. Alliance for Clean Energy v. U.S. Dep't of Energy

• Decision Date: 28 March 2012
• Docket Number: Civil Action No. 10–1335 (RCL).
• Citation: 853 F.Supp.2d 60
• Parties: SOUTHERN ALLIANCE FOR CLEAN ENERGY, Plaintiff, v. UNITED STATES DEPARTMENT OF ENERGY, Defendant.
• Court: U.S. District Court — District of Columbia

853 F.Supp.2d 60

SOUTHERN ALLIANCE FOR CLEAN ENERGY, Plaintiff,

v.UNITED STATES DEPARTMENT OF ENERGY, Defendant.

Civil Action No. 10–1335 (RCL).

United States District Court, District of Columbia.

March 28, 2012.

James B. Dougherty, Law Office of J.B. Dougherty, Washington, DC, for Plaintiff.

Michelle Lo, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

ROYCE C. LAMBERTH, Chief Judge.

I. INTRODUCTION

This case concerns whether the Department of Energy (“DOE”) followed its statutory responsibilities in responding to a Freedom of Information Act request. Before the Court are the following motions: plaintiff's Motion [11] for Partial Summary Judgment, defendant's Cross–Motion [12] for Partial Summary Judgment, defendant's Motion [29] for Summary Judgment, and plaintiff's Cross–Motion [33] for Summary Judgment. Upon consideration of the motions, oppositions, replies, the entire record in this case, and the applicable law, the Court will deny in part and deny without prejudice in part plaintiff's Motion [11] for Partial Summary Judgment, grant in part and deny without prejudice in part defendant's Cross–Motion [12] for Partial Summary Judgment, grant in part, deny in part, and deny without prejudice in part defendant's Motion [29] for Summary Judgment, and grant in part, deny in part, and deny without prejudice in part plaintiff's Cross–Motion [33] for Summary Judgment. The Court will also order DOE to revise its Vaughn indices, and reluctantly order renewed motions for summary judgment according to the schedule set forth below.

II. BACKGROUND

The Energy Policy Act of 2005, 42 U.S.C. §§ 16511–16514, authorizes the Secretary of Energy to make loan guarantees to energy projects that, among other things, reduce air pollutants and employ new or significantly improved technologies. Def.'s SMF [12] ¶ 1. DOE's Loan Programs Office (“LPO”) administers the loan guarantee program. Def.'s SMF [29–2] ¶ 2.

In July 2008, DOE solicited applications for loan guarantees for nuclear power projects. Def.'s SMF [12] ¶ 2. Georgia Power Company (“GPC”), Oglethorpe Power Company (“OPC”), and Municipal Electric Authority of Georgia (“MEAG”) (collectively, “Applicants”)—who jointly own two nuclear generating units under construction in Burke County, Georgia (the “Vogtle Project”)—each filed a “Part I” application for federal loan guarantees under this program. Id. ¶ 4. These Part I applications outlined each Applicant's proposed method for achieving the various requirements of DOE's solicitation. Def.'s SMF [29–2] ¶ 10.

After DOE determined that each Applicant satisfied the agency's initial eligibility requirements, it provided guidance regarding their submissions of more comprehensive “Part II” applications. Id. ¶ 12. DOE and the Applicants exchanged a lot of information and engaged in extensive negotiations during this period. Id. ¶ 13. Following this initial period, in October 2009, DOE sent each Applicant a draft document containing terms and conditions related to the proposed loan guarantees. Def.'s SMF [12] ¶ 9. DOE and the Applicants then engaged in further haggling over those proposed terms, until final term sheets were agreed to and issued by DOE to the Applicants in February 2010. Id. ¶¶ 10–11, 16. While many of the terms and conditions in the final term sheets came verbatim from DOE's drafts, Frantz Decl. [12–1] ¶ 15, some of them changed during negotiations, while others were contributed by the Applicants, such as information about the estimated cost of the Vogtle Project and amortization schedules. Def.'s SMF [12] ¶ 13–14. These “final” term sheets are “conditional”—that is, binding only upon the negotiation and execution of a definitive loan guarantee agreement between DOE and the Applicants. Id. ¶ 18.

On March 25, 2010, following DOE's issuance of these term sheets, the non-profit advocacy group Southern Alliance for Clean Energy (“SACE”) submitted a group of record requests to the agency pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. Pl.'s SMF [11] ¶ 2. SACE requested:

(1) The Part I and Part II applications received by DOE for the Vogtle Electric Generating Plant (“VEGP”) in Burke County, Georgia.

(2) All records concerning the VEGP loan guarantee application including all correspondence between DOE and [the Applicants].

(3) All records related to any environmental critique or evaluation prepared by DOE in regards to the VEGP loan guarantee application....

(4) All records regarding the involvement of the DOE's Credit Review Board with the submitted VEGP loan guarantee application.

(5) All records related to the use of union labor in connection with VEGP application for a loan guarantee....

(6) All records pertaining to the issuance to [the Applicants] of a term sheet, or the drafting of any final or proposed term sheet ..., that sets forth the general terms and conditions under which DOE may issue a loan guarantee to VEGP.

(7) All records pertaining to the issuance of a loan guarantee to VEGP, including but not limited to

a. All records related to the process and/or objective criteria used by DOE in its evaluation;

b. All records pertaining to DOE's evaluation of the relative strengths and/or weaknesses of VEGP applications.

Def.'s Ex. A [29–5] 1–2. In July 2010, DOE made a partial response to SACE's requests, providing copies of the final term sheets issued by DOE to OPC, GPC, and MEAG. Pl.'s SMF [11] ¶ 5. DOE redacted portions of these term sheets, asserting FOIA Exemption 4 as its basis for doing so. Id. DOE subsequently produced to SACE other documents—e-mails, letters, memoranda, and reports—in eleven batches, about once per month until December 2011. See Supp. Pulliam Decl. [29–5] ¶ 17. DOE asserted FOIA Exemptions 4, 5, and 6 in redacting portions of those records.

In August 2010, unsatisfied with DOE's response to its FOIA request, and after efforts to obtain relief at the administrative level, SACE brought suit in this Court,¹ alleging that DOE was in violation of FOIA by failing to produce non-exempt records responsive to its requests. Am. Compl. [10] ¶¶ 19, 23. SACE seeks a declaration that DOE is in violation of FOIA, production of the disputed records, and a grant of attorney's fees and costs pursuant to 5 U.S.C. § 552(a)(4)(E). Id. at 6.

In December 2010, Judge Henry H. Kennedy, Jr. entered a scheduling order requiring the parties to initially file summary-judgment briefing only concerning “Item 6 of Plaintiff's FOIA request”—that is, the request relating to the final term sheets issued by DOE to the Applicants. Order [9] 1. The parties' cross-motions for partial summary judgment on this limited aspect of the case—which only involved the propriety of DOE's invocation of Exemption 4 in redacting various provisions of the Applicants' final term sheets—became ripe for decision in April 2011. The parties later filed motions for summary judgment concerning the balance of the dispute, which are also now before the Court. While these two rounds of briefing contain overlapping issues, for simplicity's sake the Court will discuss them separately in the analysis that follows.

III. LEGAL STANDARD

Summary judgment should be granted when the materials in the record show “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)-(c). This standard requires more than the mere existence of some factual dispute between the parties; “the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “A fact is ‘material’ if a dispute over it might affect the outcome of a suit under the governing law.” Holcomb v. Powell, 433 F.3d 889, 895 (D.C.Cir.2006). “An issue is ‘genuine’ if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Doe v. IRS, 706 F.Supp.2d 1, 5 (D.D.C.2009) (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505).

This Court reviews a motion for summary judgment arising from an agency's decision to withhold or disclose documents under FOIA de novo.5 U.S.C. § 552(a)(4)(B); see also Mead Data Ctr., Inc. v. Dep't of Air Force, 566 F.2d 242, 251 (D.C.Cir.1977). In responding to a FOIA request, an agency must conduct a reasonable search for responsive records. Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C.Cir.1990); Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1352 (D.C.Cir.1983). Furthermore, to be entitled to summary judgment, a defendant must demonstrate that responsive documents that were not produced are exempt from disclosure. Weisberg v. U.S. Dep't of Justice, 627 F.2d 365, 368 (D.C.Cir.1980). To meet its burden, a defendant may rely on relatively detailed and nonconclusory affidavits or declarations. McGehee v. CIA, 697 F.2d 1095, 1102 (D.C.Cir.1983). Such agency declarations are “accorded a presumption of good faith.” Negley v. FBI, 169 Fed.Appx. 591, 594 (D.C.Cir.2006). Summary judgment in favor of a defendant is justified if these materials “demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Larson v. Dep't of State, 565 F.3d 857, 862 (D.C.Cir.2009).

IV. THE PARTIES' CROSS–MOTIONS [11, 13] FOR PARTIAL SUMMARY JUDGMENT

As stated above, per the order of Judge Kennedy, the parties filed cross-motions for partial summary judgment on the issue of whether DOE had satisfied its statutory obligations with respect to one of SACE's seven information requests—namely, its request for documents relating to “the issuance to [the Applicants] of a term sheet, or the drafting of any final or proposed term sheet ..., that sets forth the general terms and conditions under which DOE may issue a loan guarantee....” Def.'s Ex. A [29–5] 2. As an initial matter, SACE concedes, by failing to argue otherwise,...