Protect Democracy Project, Inc. v. U.S. Dep't of Energy

330 F. Supp. 3d 515
CourtCourt of Appeals for the D.C. Circuit
DecidedSeptember 17, 2018
DocketCivil Action No. 17-779 (TJK)
StatusPublished
Cited by1 cases

This text of 330 F. Supp. 3d 515 (Protect Democracy Project, Inc. v. U.S. Dep't of Energy) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Protect Democracy Project, Inc. v. U.S. Dep't of Energy, 330 F. Supp. 3d 515 (D.C. Cir. 2018).

Opinion

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"), 5 U.S.C. § 552, for documents on those topics. This lawsuit concerns Protect Democracy's objections to DOE's response.

The parties have cross-moved for summary judgment. ECF Nos. 12, 13.1 As explained below, each party's motion is granted in part and denied in part. The action shall proceed according to the schedule set forth below.

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. Id. ¶¶ 3-6. Later, during his confirmation hearing, Energy Secretary Rick Perry also distanced himself from the Questionnaire, saying, "I didn't approve it, I don't approve of it, I don't need that information, I don't want that information." Id. ¶ 7. A partially redacted version of the Questionnaire, including DOE's responses, has been posted to the DOE website at http://www.energy.gov/management/downloads/74-point-questionnaire. Id. ¶ 8.

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. Id. DOE's interim responses and final response, combined, provided Protect Democracy with 45 documents responsive to the request. Id. The final response explained that DOE had redacted certain information covered by the deliberative-process privilege under Exemption 5 of FOIA, as well as certain personal information under Exemption 6. Id.

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. Id. ¶ 17. However, in its reply papers, DOE explained that Kolb had in fact performed a manual search based on her knowledge of her email file, not an electronic search based on the application of search terms. Supp. Morris Decl. ¶ 13. Moreover, DOE had only released emails "between DOE and the DOE transition team and [had] not include[d] communications by and between non-transition team DOE employees." Id. ¶ 14.

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330 F. Supp. 3d 515, Counsel Stack Legal Research, https://law.counselstack.com/opinion/protect-democracy-project-inc-v-us-dept-of-energy-cadc-2018.