Climate Investigations Center v. United States Department of Energy

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), 2019 WL 6683751 (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, 257 F.3d 828, 838 (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, 920 F.2d 57, 68 (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, 926 F.2d 1197, 1200 (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, 656 F.2d 724, 738 (D.C. Cir. 1981); Beltranena v. Clinton, 770 F. Supp. 2d 175, 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., 696 F. Supp. 2d 113, 119 (D.D.C. 2010) (quoting U.S. Dep’t of Just. v. Tax Analysts, 492 U.S. 136, 142 (1989)). Agency affidavits and declarations are accorded “a presumption of good faith, which …

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