Case Detail

FOIA Project Annotation: Judge Royce Lamberth has ruled that the Energy Department has failed to explain how information concerning loan applications for funding of new projects that reduce air pollutants or employ new technologies qualifies for protection under Exemption 4 (confidential business information). The case involved a request from the Southern Alliance for Clean Energy, a non-profit advocacy group, for records pertaining to loan applications received from Georgia Power, Oglethorpe Power, and Municipal Electric Authority of Georgia, who were seeking loans for two nuclear facilities under construction. While indicating that he was generally satisfied with the agency's explanations as to why disclosure would cause competitive harm, he pointed out the agency had provided essentially no information indicating how the withheld information had been "obtained from a person" as required by Exemption 4. Noting that the case law on this issue was sparse, Lamberth observed that in the cases that did exist "the key distinctionâ€"which will obviously be blurry in many instancesâ€"is between information that is either repeated verbatim or slightly modified by the agency, and information that is substantially reformulated by the agency, such that it is no longer a 'person's' information but the agency's information. The latter type is not shielded by Exemption 4." He pointed out that "nowhere does DOE adequately explain how these specific redactions concern information that DOE 'obtained from' the Applicants. Without further information, these appear to be simply commercial terms constituting parts of the deal arrived at by DOE and the Applicants, not commercial or financial information of the Applicants that ended up in the final term sheets and that might qualify for protection from disclosure under Exemption 4." Lamberth ordered the agency to supplement its Vaughn index to address this issue and noted that "the mere fact that a term or provision in these documents was 'negotiated' will be insufficient for [the agency] to carry its burden.' DOE must also provide specific information upon which the Court could conclude that the Applicants either provided the very information that was redacted or that the redacted information is only a minimally modified version of information that originally came from the Applicants."
Issues: Exemption 4 - Competitive harm

Date Filed	Doc #	Docket Text
2010-08-09	1	COMPLAINT against U.S. DEPARTMENT OF ENERGY ( Filing fee $ 350, receipt number 4616031776) filed by SOUTHERN ALLIANCE FOR CLEAN ENERGY. (Attachments: # 1 Civil Cover Sheet)(dr) (Entered: 08/09/2010)
2010-08-09		SUMMONS (3) Issued as to U.S. DEPARTMENT OF ENERGY, U.S. Attorney and U.S. Attorney General (dr) (Entered: 08/09/2010)
2010-08-09	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests NONE by SOUTHERN ALLIANCE FOR CLEAN ENERGY (dr) (Entered: 08/09/2010)
2010-08-09	3	MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Lawrence D. Sanders, :Address- 1301 Clifton Road, Atlanta Georgia 30322. Phone No. - (404) 712-8008. Fax No. - (404) 727-7851 by SOUTHERN ALLIANCE FOR CLEAN ENERGY (dr) (Main Document 3 replaced on 8/9/2010) (jf, ). (Entered: 08/09/2010)
2010-08-10		MINUTE ORDER granting 3 Motion to Admit Attorney Lawrence D. Sanders Pro Hac Vice. Mr. Sanders is admitted pro hac vice to appear in this matter on behalf of plaintiff. Signed by Judge Henry H. Kennedy, Jr. on August 10, 2010. (NP) (Entered: 08/10/2010)
2010-10-07	4	NOTICE of Appearance by Michelle Lo on behalf of U.S. DEPARTMENT OF ENERGY (Lo, Michelle) (Entered: 10/07/2010)
2010-10-07	5	Consent MOTION for Extension of Time to File Answer re 1 Complaint by U.S. DEPARTMENT OF ENERGY (Lo, Michelle) (Entered: 10/07/2010)
2010-10-18		MINUTE ORDER granting 5 Defendant's Consent Motion for Extension of Time to Respond to Complaint. Accordingly, defendant's answer is due on November 12, 2010. Signed by Judge Henry H. Kennedy, Jr. on October 18, 2010. (NP) (Entered: 10/18/2010)
2010-11-12	6	Consent MOTION for Extension of Time to File Answer re 1 Complaint or Otherwise Respond by U.S. DEPARTMENT OF ENERGY (Lo, Michelle) (Entered: 11/12/2010)
2010-11-12		MINUTE ORDER granting 6 Consent Motion for Extension of Time to Respond to Complaint. Accordingly, defendant's answer is due on December 3, 2010. Signed by Judge Henry H. Kennedy, Jr. on November 12, 2010. (NP) (Entered: 11/12/2010)
2010-11-12		Reset Deadlines: Answer due by 12/3/2010. (tj ) (Entered: 11/12/2010)
2010-12-03	7	Consent MOTION for Extension of Time to File Answer re 1 Complaint or Otherwise Respond by U.S. DEPARTMENT OF ENERGY (Lo, Michelle) (Entered: 12/03/2010)
2010-12-06		MINUTE ORDER granting 7 Defendant's Consent Motion for Extension of Time toRespond to Complaint. Accordingly, defendant's answer is due on December 10, 2010. Signed by Judge Henry H. Kennedy, Jr. on December 6, 2010. (NP) (Entered: 12/06/2010)
2010-12-10	8	Joint MOTION for Order Entering Scheduling Order by U.S. DEPARTMENT OF ENERGY (Attachments: # 1 Text of Proposed Order)(Lo, Michelle) (Entered: 12/10/2010)
2010-12-13	9	ORDER granting 8 Joint Motion for Scheduling Order. Signed by Judge Henry H. Kennedy, Jr. on December 13, 2010. (lchhk3) (Entered: 12/13/2010)
2011-01-14	10	FIRST AMENDED COMPLAINT against U.S. DEPARTMENT OF ENERGY filed by SOUTHERN ALLIANCE FOR CLEAN ENERGY.(znmw, ) (Entered: 01/18/2011)
2011-01-20		Case reassigned to U.S. District Judge Robert L. Wilkins. Judge Henry H. Kennedy no longer assigned to the case. (gt, ) (Entered: 01/20/2011)
2011-02-01	11	MOTION for Partial Summary Judgment by SOUTHERN ALLIANCE FOR CLEAN ENERGY (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E, # 6 Exhibit Exhibit F, # 7 Exhibit Exhibit G, # 8 Exhibit Exhibit H, # 9 Exhibit Exhibit I, # 10 Exhibit Exhibit J, # 11 Exhibit Exhibit K, # 12 Text of Proposed Order Proposed Order)(Sanders, Lawrence) (Entered: 02/01/2011)
2011-03-01	12	MOTION for Partial Summary Judgment and Opposition to Plaintiff's Motion for Partial Summary Judgment by U.S. DEPARTMENT OF ENERGY (Attachments: # 1 Declaration of David G. Frantz, # 2 Declaration of Wendy Pulliam, # 3 Declaration of Earl C. Long, # 4 Declaration of Elizabeth B. Higgins, # 5 Declaration of James E. Fuller, # 6 Text of Proposed Order)(Lo, Michelle) (Entered: 03/01/2011)
2011-03-01	13	Memorandum in opposition to re 11 MOTION for Partial Summary Judgment and Defendant's Cross-Motion for Partial Summary Judgment filed by U.S. DEPARTMENT OF ENERGY. (Attachments: # 1 Declaration of David G. Frantz, # 2 Declaration of Wendy Pulliam, # 3 Declaration of Earl C. Long, # 4 Declaration of Elizabeth B. Higgins, # 5 Declaration of James E. Fuller, # 6 Text of Proposed Order)(Lo, Michelle) (Entered: 03/01/2011)
2011-03-22	14	Memorandum in opposition to re 12 MOTION for Partial Summary Judgment and Opposition to Plaintiff's Motion for Partial Summary Judgment filed by SOUTHERN ALLIANCE FOR CLEAN ENERGY. (Sanders, Lawrence) (Entered: 03/22/2011)
2011-03-22	15	ENTERED IN ERROR.....REPLY to opposition to motion re 12 MOTION for Partial Summary Judgment and Opposition to Plaintiff's Motion for Partial Summary Judgment filed by SOUTHERN ALLIANCE FOR CLEAN ENERGY. (Sanders, Lawrence) Modified on 3/23/2011 (rdj). (Entered: 03/22/2011)
2011-03-22	16	REPLY to opposition to motion re 11 MOTION for Partial Summary Judgment filed by SOUTHERN ALLIANCE FOR CLEAN ENERGY. (Sanders, Lawrence) (Entered: 03/22/2011)
2011-03-23		NOTICE OF CORRECTED DOCKET ENTRY: re 15 Reply to opposition to Motion, was entered in error as a duplicate filing, counsel refiled said pleading as entry 16 . (rdj) (Entered: 03/23/2011)
2011-04-07	17	Unopposed MOTION for Extension of Time to File Response/Reply as to 12 MOTION for Partial Summary Judgment and Opposition to Plaintiff's Motion for Partial Summary Judgment by U.S. DEPARTMENT OF ENERGY (Attachments: # 1 Text of Proposed Order)(Lo, Michelle) (Entered: 04/07/2011)
2011-04-08	18	ORDER granting 17 Defendants Unopposed Motion for Extension ofTime to File Reply Brief in Support of Defendants Motion for Partial Summary Judgment; it is hereby ORDERED that Defendants motion is GRANTED, and Defendant shall have to, and including, Tuesday, April 26, 2011, to file its Reply Brief in Support of Defendants Motion for Partial Summary Judgment, and it is FURTHER ORDERED that in the event of a federal government shutdown that lasts beyond April 26, 2011, the deadline for Defendants reply brief is STAYED until five (5) business days following the resumption of normal federal government operations. Signed by Judge Robert L. Wilkins on 4/8/2011. (tcb) (Entered: 04/08/2011)
2011-04-26	19	REPLY to opposition to motion re 12 MOTION for Partial Summary Judgment and Opposition to Plaintiff's Motion for Partial Summary Judgment filed by U.S. DEPARTMENT OF ENERGY. (Attachments: # 1 Reply to Plaintiff's Response to Defendant's Statement of Material Facts Not in Genuine Dispute)(Lo, Michelle) (Entered: 04/26/2011)
2011-05-31	20	Consent MOTION for Extension of Time to Complete Processing of Plaintiff's FOIA Request and to Submit Joint Status Report by U.S. DEPARTMENT OF ENERGY (Attachments: # 1 Text of Proposed Order)(Lo, Michelle) (Entered: 05/31/2011)
2011-06-01	21	ORDER granting 20 Consent MOTION for Extension of Time to Complete Processing of Plaintiff's FOIA Request and to Submit Joint Status Report; Defendant shall have to, and including, July 11, 2011, to complete its processing of Plaintiffs FOIA request; and it is FURTHER ORDERED that the parties are to file a status report with the Court by August 1, 2011 advising the Court as to whether further litigation will be necessary on the remaining portions of Plaintiffs FOIA request. Signed by Judge Robert L. Wilkins on 6/1/2011. (tcb) . (Entered: 06/01/2011)
2011-07-08	22	Consent MOTION for Extension of Time to Complete Processing of Plaintiff's FOIA Request and to Submit Joint Status Report by U.S. DEPARTMENT OF ENERGY (Attachments: # 1 Text of Proposed Order)(Lo, Michelle) (Entered: 07/08/2011)
2011-07-14	23	ORDER granting 22 Consent MOTION for Extension of Time to Complete Processing of Plaintiff's FOIA Request and to Submit Joint Status Report; and Defendant shall have to, and including, September 12, 2011, to complete its processing of Plaintiffs FOIA request; and it is FURTHER ORDERED that the parties are to file a status report with the Court by October 3, 2011 advising the Court as to whether further litigation will be necessary on the remaining portions of Plaintiffs FOIA request. Signed by Judge Robert L. Wilkins on 7/14/2011. (tcb) (Entered: 07/14/2011)
2011-10-03	24	STATUS REPORT and Motion for Order Setting A Briefing Schedule (Joint) by SOUTHERN ALLIANCE FOR CLEAN ENERGY, U.S. DEPARTMENT OF ENERGY. (Attachments: # 1 Text of Proposed Order)(Lo, Michelle) (Entered: 10/03/2011)
2011-10-03	25	Joint MOTION for Order Setting A Briefing Schedule and Status Report by SOUTHERN ALLIANCE FOR CLEAN ENERGY, U.S. DEPARTMENT OF ENERGY (Attachments: # 1 Text of Proposed Order)(Lo, Michelle) (Entered: 10/03/2011)
2011-10-04	26	ORDER granting 25 Joint MOTION for Order Setting A Briefing Schedule and Status Report: Parties to Agree on Contents on Vaughn Indexdue by 10/31/2011. Defendants Motion for Summary Judgment due by 12/16/2011. Plaintiffs Opposition to Defendants Motion for Summary Judgment and Cross-Motion for Summary Judgment due by 1/27/2012.Defendants Reply in Support of Its Motion and Opposition to Plaintiffs Cross-Motion due by 2/15/2012. Plaintiffs Reply in Support of Its Cross-Motiondue by 3/2/2012. Signed by Judge Robert L. Wilkins on 10/4/2011. (tcb ) (Entered: 10/04/2011)
2011-10-07	27	Case reassigned by consent to Chief Judge Royce C. Lamberth. Judge Robert L. Wilkins no longer assigned to the case. (gt, ) (Entered: 10/07/2011)
2011-10-31	28	NOTICE Regarding Parties' Agreement on Contents of Vaughn Index by SOUTHERN ALLIANCE FOR CLEAN ENERGY, U.S. DEPARTMENT OF ENERGY (Lo, Michelle) (Entered: 10/31/2011)
2011-12-16	29	MOTION for Summary Judgment by U.S. DEPARTMENT OF ENERGY (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Supplemental Declaration of David G. Frantz, # 4 Declaration of David G. Frantz dated October 17, 2011, # 5 Supplemental Declaration of Wendy Pulliam, # 6 Text of Proposed Order)(Lo, Michelle) (Entered: 12/16/2011)
2012-01-22	30	MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Mindy Goldstein, :Firm- Turner Environmental Law Clinic, :Address- 1301 Clifton Road. Phone No. - 404-727-3432. Fax No. - 404-727-7851 by SOUTHERN ALLIANCE FOR CLEAN ENERGY (Attachments: # 1 Text of Proposed Order)(Dougherty, James) (Entered: 01/22/2012)
2012-01-22	31	NOTICE OF WITHDRAWAL OF APPEARANCE as to SOUTHERN ALLIANCE FOR CLEAN ENERGY. Attorney Lawrence D. Sanders terminated. (Dougherty, James) (Entered: 01/22/2012)
2012-01-25	32	ORDER granting 30 Motion for Leave for Mindy Goldstein to Appear Pro Hac Vice. Signed by Chief Judge Royce C. Lamberth on 1/25/12. (rje, ) (Entered: 01/25/2012)
2012-01-27	33	Cross MOTION for Summary Judgment by SOUTHERN ALLIANCE FOR CLEAN ENERGY (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E)(Dougherty, James) (Entered: 01/27/2012)
2012-01-31	34	ENTERED IN ERROR.....Unopposed MOTION for Summary Judgment by SOUTHERN ALLIANCE FOR CLEAN ENERGY (Attachments: # 1 Text of Proposed Order, # 2 Cross-Motion for Summary Judgment, # 3 Statement of Material Facts)(Dougherty, James) Modified on 1/31/2012 (dr). (Entered: 01/31/2012)
2012-01-31		NOTICE OF CORRECTED DOCKET ENTRY: re 34 Unopposed MOTION for Summary Judgment was entered in error and counsel has been instructed to file an Errata instead. (dr) (Entered: 01/31/2012)
2012-01-31	35	ERRATA by SOUTHERN ALLIANCE FOR CLEAN ENERGY 33 Cross MOTION for Summary Judgment filed by SOUTHERN ALLIANCE FOR CLEAN ENERGY. (Attachments: # 1 Statement of Facts)(Dougherty, James) (Entered: 01/31/2012)
2012-01-31	36	ERRATA by SOUTHERN ALLIANCE FOR CLEAN ENERGY 33 Cross MOTION for Summary Judgment filed by SOUTHERN ALLIANCE FOR CLEAN ENERGY. (Attachments: # 1 Memorandum in Support)(Dougherty, James) (Entered: 01/31/2012)
2012-01-31	37	Memorandum in opposition to re 29 MOTION for Summary Judgment filed by SOUTHERN ALLIANCE FOR CLEAN ENERGY. (See Docket Entry 36 to view document. Counsel is instructed to docket the opposition as a separate docket entry in the future)(rdj) (Entered: 02/01/2012)
2012-02-13	38	Consent MOTION for Extension of Time to File Response/Reply as to 29 MOTION for Summary Judgment, 33 Cross MOTION for Summary Judgment by U.S. DEPARTMENT OF ENERGY (Lo, Michelle) (Entered: 02/13/2012)
2012-02-15		MINUTE ORDER granting 38 defendant's Motion for Enlargement of Time to File Reply in Support. Defendant shall file its reply by February 17, 2012; plaintiff shall file its reply by March 6, 2012. Signed by Chief Judge Royce C. Lamberth on February 15, 2012. (lcrcl4) (Entered: 02/15/2012)
2012-02-17	39	REPLY to opposition to motion re 29 MOTION for Summary Judgment filed by U.S. DEPARTMENT OF ENERGY. (Attachments: # 1 Second Supplemental Declaration of David G. Frantz, # 2 Response to Pl's Statement of Material Facts Not in Genuine Dispute and Reply to Pl's Response to Def's Statement of Material Facts Not in Genuine Dispute, # 3 Text of Proposed Order)(Lo, Michelle) (Entered: 02/17/2012)
2012-02-17	40	Memorandum in opposition to re 33 Cross MOTION for Summary Judgment filed by U.S. DEPARTMENT OF ENERGY. (Attachments: # 1 Second Supplemental Declaration of David G. Frantz, # 2 Response to Pl's Statement of Material Facts Not in Genuine Dispute and Reply to Pl's Response to Def's Statement of Material Facts Not in Genuine Dispute, # 3 Text of Proposed Order)(Lo, Michelle) (Entered: 02/17/2012)
2012-02-21		Set/Reset Deadlines: Plaintiff's Reply due by 3/6/2012. (rje, ) (Entered: 02/21/2012)
2012-03-06	41	REPLY to opposition to motion re 33 Cross MOTION for Summary Judgment filed by SOUTHERN ALLIANCE FOR CLEAN ENERGY. (Attachments: # 1 Statement of Facts)(Dougherty, James) (Entered: 03/06/2012)
2012-03-28	42	ORDER granting in part and denying in part 29 defendant's Motion for Summary Judgment; granting in part and denying in part 33 plaintiff's Cross-Motion for Summary Judgment; denying 11 plaintiff's Cross-Motion for Partial Summary Judgment; and granting in part and denying in part 12 defendant's Cross-Motion for Partial Summary Judgment. Signed by Chief Judge Royce C. Lamberth on March 28, 2012. (lcrcl4) (Entered: 03/28/2012)
2012-03-28	43	MEMORANDUM OPINION. Signed by Chief Judge Royce C. Lamberth on March 28, 2012. (lcrcl4) (Entered: 03/28/2012)
2012-05-14	44	STIPULATION of Settlement and Dismissal of All Claims Except for Attorney's Fees and Proposed Order by SOUTHERN ALLIANCE FOR CLEAN ENERGY, U.S. DEPARTMENT OF ENERGY. (Attachments: # 1 Exhibit A)(Lo, Michelle) (Entered: 05/14/2012)
2012-05-14	45	STIPULATION AND ORDER. The parties stipulate to dismiss all claims in this action with the exception of the issue of attorney's fees. The parties have until July 13, 2012, to determine whether they are able to reach agreement on the issue of attorney's fees. If the parties are unable to reach agreement, the plaintiff will submit a fee petition on or before August 3, 2012. Signed by Chief Judge Royce C. Lamberth on May 14, 2012. (lcrcl4) (Entered: 05/14/2012)
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