Case Detail

FOIA Project Annotation: Judge Timothy Kelly has ruled that both the Department of Energy and the Center for Public Integrity have so far failed to show records concerning performance evaluation plans for a number of national laboratories overseen by the National Nuclear Security Administration are protected by either Exemption 4 (confidential business information) or Exemption 5 (privileges) and has told both parties to provide further briefing on the issues involved. The agency withheld information under Exemption 4, claiming disclosure would likely cause substantial competitive harm. Kelly noted the competitive harm test had largely been negated by the recent Supreme Court ruling in Food Marketing Institute v. Argus Leader Media, 129 S. Ct 2356 (2019), pointing out that "the Supreme Court held that the term 'confidential' under Exemption 4 means 'private' or 'secret,' and that it does not encompass a requirement that the release of confidential information cause 'substantial competitive harm.'" Because the arguments in this case had been submitted before Food Marketing Institute v. Argus News Leader had been decided, Kelly explained that "the Court will deny both [summary judgment motions] without prejudice as to the claims addressing Exemption 4 and allow the parties to file renewed motions." The agency claimed the consultant corollary â€" allowing an agency to withhold deliberations between agency personnel and non-agency third parties as long as they were acting on behalf of the agency and had no self-interest adverse to the agency â€" applied under Exemption 5 to the self-assessment reports. The Center for Public Integrity argued that discussions pertaining to fees suggested a self-interest on the part of the contractors and should not qualify under the consultant corollary. Kelly indicated that some of the deliberations probably fell within the consultant corollary but observed that "without more, the Court has no basis to determine whether, or to what extent, the withheld material reflects the contractors representing their own interests, and therefore whether the material qualifies as intra-agency communications." Kelly sent this issue back to the agency for further justification.
Issues: Exemption 4 - Competitive harm, Exemption 5 - Consultant privilege

Date Filed	Doc #	Docket Text
2017-02-15	1	COMPLAINT against U.S. DEPARTMENT OF ENERGY ( Filing fee $ 400 receipt number 0090-4843529) filed by CENTER FOR PUBLIC INTEGRITY. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons to U.S. Attorney, # 4 Summons to Attorney General)(Smith, Peter) (Entered: 02/15/2017)
2017-02-15	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by CENTER FOR PUBLIC INTEGRITY (Smith, Peter) (Entered: 02/15/2017)
2017-02-15		Case Assigned to Judge Colleen Kollar-Kotelly. (md) (Entered: 02/15/2017)
2017-02-15	3	SUMMONS (3) Issued Electronically as to U.S. DEPARTMENT OF ENERGY, U.S. Attorney and U.S. Attorney General (md) (Entered: 02/15/2017)
2017-02-16	4	ORDER Establishing Procedures for Cases Assigned to Judge Colleen Kollar-Kotelly. Signed by Judge Colleen Kollar-Kotelly on February 16, 2017. (NS) (Entered: 02/16/2017)
2017-02-16	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 2/16/2017. Answer due for ALL FEDERAL DEFENDANTS by 3/18/2017. (Smith, Peter) (Entered: 02/16/2017)
2017-03-01	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 02/22/2017. (Attachments: # 1 Exhibit Return Receipt)(Smith, Peter) (Entered: 03/01/2017)
2017-03-15	7	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. DEPARTMENT OF ENERGY served on 2/23/2017 (Attachments: # 1 Exhibit Duplicate Return Receipt)(Smith, Peter) (Entered: 03/15/2017)
2017-03-20	8	ANSWER to Complaint by U.S. DEPARTMENT OF ENERGY.(Peterson, Benton) (Entered: 03/20/2017)
2017-03-21	9	ORDER. The parties shall MEET AND CONFER and file a Joint Status Report proposing a schedule for proceeding in this matter. The parties shall file the schedule not later than APRIL 20, 2017. Signed by Judge Colleen Kollar-Kotelly on 3/21/2017. (lcckk1) (Entered: 03/21/2017)
2017-03-21		Set/Reset Deadlines: Joint Status Report proposing a schedule due by 4/20/2017 (dot) (Entered: 03/22/2017)
2017-04-18	10	Joint MOTION for Extension of Time to File by U.S. DEPARTMENT OF ENERGY (Attachments: # 1 Text of Proposed Order)(Peterson, Benton) (Entered: 04/18/2017)
2017-04-24		MINUTE ORDER: The Court is in receipt of the parties' 10 Joint Motion for Extension of Time to File Joint Status Report. That motion was filed two days before the referenced Joint Status Report was due with the Court, and therefore fails to comply with this Court's Standing Order, which instructs that [m]otions for extensions of time must be filed at least four (4) business days prior to the first affected deadline. ECF No. 4, at 3. Nonetheless, in this instance, and for good cause shown, the Court shall GRANT the Motion. The parties shall file their Joint Status Report no later than APRIL 27, 2017. Signed by Judge Colleen Kollar-Kotelly on 4/24/2017. (lcckk1) (Entered: 04/24/2017)
2017-04-24		Set/Reset Deadlines: Joint Status Report due by 4/27/2017. (dot) (Entered: 04/25/2017)
2017-04-27	11	Joint STATUS REPORT by CENTER FOR PUBLIC INTEGRITY. (Smith, Peter) (Entered: 04/27/2017)
2017-05-01		MINUTE ORDER: The Court is in receipt of the parties' 11 Joint Status Report, wherein they represent that Defendant has made a production of responsive documents from one field office, with some redactions, and expects to produce several thousand additional pages from six other field offices. The parties request that the Court not set a briefing schedule at this time, given that the end date for the government's production is still uncertain. Accordingly, the parties shall file a further Joint Status Report by June 27, 2017, updating the Court regarding the government's production, and proposing a briefing schedule, if necessary. Signed by Judge Colleen Kollar-Kotelly on 5/1/2017. (lcckk1) (Entered: 05/01/2017)
2017-05-01		Set/Reset Deadlines: Joint Status Report due by 6/27/2017. (dot) (Entered: 05/03/2017)
2017-06-27	12	Joint STATUS REPORT by U.S. DEPARTMENT OF ENERGY. (Peterson, Benton) (Entered: 06/27/2017)
2017-06-30		MINUTE ORDER: The Court is in receipt of the parties' 12 Joint Status Report, wherein they represent that Defendant has made a production of responsive documents, and expects to produce several thousand more pages shortly. Accordingly, the parties shall file a further Joint Status Report by August 28, 2017, updating the Court regarding the government's production, and proposing a briefing schedule, if necessary. Signed by Judge Colleen Kollar-Kotelly on 6/30/2017. (lcckk1) (Entered: 06/30/2017)
2017-06-30		Set/Reset Deadlines: Joint Status Report due by 8/28/2017. (dot) (Entered: 07/03/2017)
2017-08-28	13	Joint STATUS REPORT by CENTER FOR PUBLIC INTEGRITY. (Smith, Peter) (Entered: 08/28/2017)
2017-09-05		MINUTE ORDER: The Court is in receipt of the parties' 13 Joint Status Report, which indicates that "Defendant has complied with the agreed upon productions so far and is on track with the originally agreed upon production schedule." Accordingly, the parties shall submit a further Joint Status Report by OCTOBER 30, 2017. Signed by Judge Colleen Kollar-Kotelly on 9/5/2017. (lcckk1) (Entered: 09/05/2017)
2017-09-05		Set/Reset Deadlines: Joint Status Report due by 10/30/2017. (dot) (Entered: 09/06/2017)
2017-09-18		Case directly reassigned to Judge Timothy J. Kelly. Judge Colleen Kollar-Kotelly is no longer assigned to the case. (ztnr) (Entered: 09/18/2017)
2017-10-30	14	Joint STATUS REPORT by CENTER FOR PUBLIC INTEGRITY. (Smith, Peter) (Entered: 10/30/2017)
2017-10-31		MINUTE ORDER: In light of the 14 Joint Status Report filed by the parties on October 30, 2017, it is hereby ORDERED that the parties shall file a further status report by December 29, 2017. Signed by Judge Timothy J. Kelly on 10/31/2017. (lctjk1) (Entered: 10/31/2017)
2017-11-01		Set/Reset Deadlines: Status Report due by 12/29/2017 (tj) (Entered: 11/01/2017)
2017-12-29	15	Joint STATUS REPORT by CENTER FOR PUBLIC INTEGRITY. (Smith, Peter) (Entered: 12/29/2017)
2018-01-12		MINUTE ORDER: In light of the parties' 15 Joint Status Report, it is hereby ORDERED that the parties shall file a further Joint Status Report by February 26, 2018. Signed by Judge Timothy J. Kelly on 1/12/2018. (lctjk1) (Entered: 01/12/2018)
2018-01-12		Set/Reset Deadlines: Joint Status Report due by 2/26/2018. (kh) (Entered: 01/12/2018)
2018-02-26	16	Joint STATUS REPORT by CENTER FOR PUBLIC INTEGRITY. (Smith, Peter) (Entered: 02/26/2018)
2018-02-27		MINUTE ORDER: In light of the parties' 16 Joint Status Report, it is hereby ORDERED that the parties shall file a further Joint Status Report by May 10, 2018. Signed by Judge Timothy J. Kelly on 2/27/2018. (lctjk1) (Entered: 02/27/2018)
2018-05-10	17	Joint STATUS REPORT by CENTER FOR PUBLIC INTEGRITY. (Smith, Peter) (Entered: 05/10/2018)
2018-05-14		MINUTE ORDER: In light of the parties' 17 Joint Status Report, it is hereby ORDERED that the parties shall file a further Joint Status Report by June 7, 2018. Signed by Judge Timothy J. Kelly on 5/14/2018. (lctjk1) (Entered: 05/14/2018)
2018-06-07	18	Joint STATUS REPORT by CENTER FOR PUBLIC INTEGRITY. (Smith, Peter) (Entered: 06/07/2018)
2018-06-11		MINUTE ORDER: In light of the parties' 18 Joint Status Report, it is hereby ORDERED that the following schedule will govern further proceedings: (1) Defendant shall file its motion for summary judgment by August 7, 2018; (2) Plaintiff shall file its opposition to Defendant's motion and cross-motion by September 7, 2018; (3) Defendant shall file its opposition to Plaintiff's cross-motion and reply in support of its motion by October 8, 2018; and (4) Plaintiff shall file its reply in support of its cross-motion by October 22, 2018. Signed by Judge Timothy J. Kelly on 6/11/2018.(lctjk1) (Entered: 06/11/2018)
2018-06-12		Set/Reset Deadlines: Summary Judgment motion due by 8/7/2018. Response to Motion for Summary Judgment and Cross Motion due by 9/7/2018. Reply to Motion for Summary Judgment and Response to Cross Motion due by 10/8/2018. Reply to Cross Motion due by 10/22/2018. (kh) (Entered: 06/12/2018)
2018-08-06	19	MOTION for Summary Judgment by U.S. DEPARTMENT OF ENERGY (Attachments: # 1 Statement of Facts, # 2 Text of Proposed Order)(Peterson, Benton) (Entered: 08/06/2018)
2018-08-07		NOTICE OF ERROR re 19 Motion for Summary Judgment; emailed to benton.peterson@usdoj.gov, cc'd 4 associated attorneys -- The PDF file you docketed contained errors: 1. For future filings, the Judge's initials are (TJK). (ztth, ) (Entered: 08/07/2018)
2018-08-07	20	NOTICE of Filing Hamblen Declaration by U.S. DEPARTMENT OF ENERGY re 19 MOTION for Summary Judgment (Attachments: # 1 Declaration)(Peterson, Benton) (Entered: 08/07/2018)
2018-09-07	21	Cross MOTION for Summary Judgment by CENTER FOR PUBLIC INTEGRITY (Attachments: # 1 Statement of Facts, # 2 Text of Proposed Order)(Smith, Peter) (Entered: 09/07/2018)
2018-09-07	22	Memorandum in opposition to re 19 MOTION for Summary Judgment filed by CENTER FOR PUBLIC INTEGRITY. (Smith, Peter) (Entered: 09/07/2018)
2018-10-09	23	Memorandum in opposition to re 21 Cross MOTION for Summary Judgment filed by U.S. DEPARTMENT OF ENERGY. (Peterson, Benton) (Entered: 10/09/2018)
2018-10-09	24	REPLY to opposition to motion re 19 MOTION for Summary Judgment filed by U.S. DEPARTMENT OF ENERGY. (Peterson, Benton) (Entered: 10/09/2018)
2018-10-22	25	REPLY to opposition to motion re 21 Cross MOTION for Summary Judgment filed by CENTER FOR PUBLIC INTEGRITY. (Smith, Peter) (Entered: 10/22/2018)
2019-03-15	26	NOTICE OF SUBSTITUTION OF COUNSEL by Derek S. Hammond on behalf of U.S. DEPARTMENT OF ENERGY Substituting for attorney Benton G. Peterson (Hammond, Derek) (Entered: 03/15/2019)
2019-07-15	27	MEMORANDUM OPINION & ORDER denying without prejudice Defendant's 19 Motion for Summary Judgment, and denying without prejudice Plaintiff's 21 Cross-Motion for Summary Judgment. Joint briefing schedule due by July 29, 2019. See Order for details. Signed by Judge Timothy J. Kelly on 7/15/2019. (lctjk1) (Entered: 07/15/2019)
2019-07-29	28	PROPOSED BRIEFING SCHEDULE by U.S. DEPARTMENT OF ENERGY. (Hammond, Derek) (Entered: 07/29/2019)
2019-07-29		MINUTE ORDER: Upon consideration of the parties' 28 Joint Briefing Schedule, it is hereby ORDERED that the following schedule will govern further proceedings: (1) Defendant shall file its renewed motion for summary judgment by September 30, 2019; (2) Plaintiff shall file its opposition to Defendant's motion and renewed cross-motion by October 30, 2019; (3) Defendant shall file its opposition to Plaintiff's cross-motion and reply in support of its motion by November 29, 2019; and (4) Plaintiff shall file its reply in support of its cross-motion by December 13, 2019. Signed by Judge Timothy J. Kelly on 7/29/2019. (lctjk1) (Entered: 07/29/2019)
2019-09-30	29	Second MOTION for Summary Judgment by U.S. DEPARTMENT OF ENERGY (Attachments: # 1 Memorandum in Support, # 2 Declaration, # 3 Statement of Facts, # 4 Text of Proposed Order)(Hammond, Derek) (Entered: 09/30/2019)
2019-10-29	30	STIPULATION of Dismissal by CENTER FOR PUBLIC INTEGRITY. (Smith, Peter) (Entered: 10/29/2019)
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