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Case TitleNISKANEN CENTER, INC. v. UNITED STATES DEPARTMENT OF ENERGY
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2017cv00676
Date Filed2017-04-17
Date ClosedOpen
JudgeJudge James E. Boasberg
PlaintiffNISKANEN CENTER, INC.
Case DescriptionThe Niskanen Center submitted a FOIA request to the Department of Energy seeking records from the National Coal Council, an advisory committee established by the agency. The agency acknowledged receipt of the request and asked the Niskanen Center if it was requesting a fee waiver. The agency granted the Niskanen Center a fee waiver, but after hearing nothing further from the agency, the Niskanen Center filed suit.
Complaint issues: Failure to respond within statutory time limit, Litigation - Attorney's fees

DefendantUNITED STATES DEPARTMENT OF ENERGY
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Opinion/Order [25]
FOIA Project Annotation: Judge James Boasberg has ruled that the Department of Energy failed to conduct an adequate search for records concerning the National Coal Council, a federal advisory committee, and that Exemption 4 (confidential business information) does not protect the records the agency withheld. The Niskanen Center submitted a FOIA request concerning the National Coal Council, which was established in 1984 by the Secretary of Energy, and NCC, Inc. The agency located 11 documents and one Windows Media Player file and disclosed them with redactions under Exemption 6 (invasion of privacy). After the Center reviewed the records, it told DOE that its search was deficient because it had not located any records concerning the Council's relation with NCC, Inc. The agency conducted a second search and located an additional 21 documents and one additional Video Object file. The agency withheld in full or in part certain of these documents under Exemption 4 and Exemption 6. The Center challenged the adequacy of the agency's search, arguing that it should have searched other offices beside the Office of Fossil Energy and that the agency had failed to use the search term "NCC, Inc." Boasberg agreed on both counts. He noted that "standing on its own, DOE's assertion that responsive records would be 'limited' to OFE is inadequate because the Court cannot evaluate that claim absent 'reasonable detail.'" He added that "nowhere does DOE indicate that it searched physical and electronic documents for the term 'NCC, Inc.,' ass well as 'NCC,' nor does it maintain that a search for the latter term would necessarily uncover uses of the former. Defendant's contention that its search was still adequate because it did in fact locate some documents concerning NCC, Inc. is unpersuasive." Turning to the Exemption 4 withholdings, Boasberg concluded that the National Parks test, requiring a showing that disclosure would likely cause competitive harm, resolved the issue. He pointed out that "this is because the Government never really argues that its withholdings satisfy that standard. It does not contend, for example, that disclosure of the withheld information would impair its ability to obtain such information in the future" or cause substantive competitive harm. Instead, Boasberg noted that "the documents include a strategic plan, meeting notes, and a statement of activities. There is no colorable argument that disclosure of any of this information would impair DOE's ability to obtain it in the future, and it is difficult to see how disclosure would harm NCC, Inc.'s competitive position." Boasberg also rejected DOE's claims that the records were otherwise privileged.
Issues: Exemption 4 - Confidential business information
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2017-04-171COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 0090-4916948), CIVIL COVER SHEET by NISKANEN CENTER, REQUEST FOR SUMMONS TO ISSUE filed by NISKANEN CENTER. (Attachments: # 1 Summons, # 2 Civil Cover Sheet)(Bookbinder, David) (Entered: 04/17/2017)
2017-04-18Case Assigned to Judge James E. Boasberg. (zsb) (Entered: 04/18/2017)
2017-04-182SUMMONS (1) Issued Electronically as to UNITED STATES DEPARTMENT OF ENERGY (Attachment: # 1 Consent Form)(zsb) (Entered: 04/18/2017)
2017-04-18SUMMONS Not Issued as to U.S. Attorney and U.S. Attorney General.....SUMMONS NOT FILED AT THE TIME COMPLAINT WAS FILED. (zsb) (Entered: 04/18/2017)
2017-04-183ENTERED IN ERROR....REQUEST FOR SUMMONS TO ISSUE filed by NISKANEN CENTER, INC..(Bookbinder, David) Modified on 4/19/2017 (znmw). (Entered: 04/18/2017)
2017-04-184ENTERED IN ERROR.....REQUEST FOR SUMMONS TO ISSUE filed by NISKANEN CENTER, INC..(Bookbinder, David) Modified on 4/19/2017 (znmw). (Entered: 04/18/2017)
2017-04-205REQUEST FOR SUMMONS TO ISSUE filed by NISKANEN CENTER, INC..(Bookbinder, David) (Entered: 04/20/2017)
2017-04-206REQUEST FOR SUMMONS TO ISSUE filed by NISKANEN CENTER, INC..(Bookbinder, David) (Entered: 04/20/2017)
2017-04-207SUMMONS (2) Issued Electronically as to U.S. Attorney and U.S. Attorney General (Attachment: # 1 Consent Form)(sb) (Entered: 04/20/2017)
2017-05-258NOTICE of Appearance by Melanie Dyani Hendry on behalf of UNITED STATES DEPARTMENT OF ENERGY (Hendry, Melanie) (Entered: 05/25/2017)
2017-05-259ANSWER to Complaint by UNITED STATES DEPARTMENT OF ENERGY.(Hendry, Melanie) (Entered: 05/25/2017)
2017-05-26MINUTE ORDER: The Court ORDERS that the parties shall meet, confer, and submit a proposed briefing schedule by June 8, 2017. Signed by Judge James E. Boasberg on 5/26/2017. (lcjeb1) (Entered: 05/26/2017)
2017-05-26Set/Reset Deadlines: Proposed Briefing Schedule due by 6/8/2017 (lsj) (Entered: 05/26/2017)
2017-06-0710Joint STATUS REPORT by UNITED STATES DEPARTMENT OF ENERGY. (Hendry, Melanie) (Entered: 06/07/2017)
2017-06-07MINUTE ORDER: The Court ORDERS that the parties shall submit a joint status report on or before August 31, 2017, to update the Court on the status of the case, and, if any issues remain, to propose a summary-judgment briefing schedule. Signed by Judge James E. Boasberg on 6/7/2017. (lcjeb1) (Entered: 06/07/2017)
2017-06-07Set/Reset Deadlines: Joint Status Report due by 8/31/2017. (nbn) (Entered: 06/07/2017)
2017-08-3011Joint STATUS REPORT by UNITED STATES DEPARTMENT OF ENERGY. (Hendry, Melanie) (Entered: 08/30/2017)
2017-08-30MINUTE ORDER ADOPTING 11 Joint Status Report. The Court ORDERS that on or before October 27, 2017, the parties shall submit a Joint Status Report and, if any issues remain, provide a proposed briefing schedule to the Court. Signed by Judge James E. Boasberg on 8/30/17. (lcjeb1) (Entered: 08/30/2017)
2017-08-30Set/Reset Deadlines: Joint Status Report due by 10/27/2017. (nbn) (Entered: 08/31/2017)
2017-10-1712NOTICE of Appearance by Eric Robert Glitzenstein on behalf of NISKANEN CENTER, INC. (Glitzenstein, Eric) (Entered: 10/17/2017)
2017-10-2713Joint STATUS REPORT by UNITED STATES DEPARTMENT OF ENERGY. (Hendry, Melanie) (Entered: 10/27/2017)
2017-10-27MINUTE ORDER: The Court ADOPTS the parties' briefing schedule as set out in their 13 status report. The Court ORDERS that: 1) Defendant's motion for summary judgment shall be filed on or before December 15, 2017; 2) Plaintiff's opposition and cross-motion shall be filed on or before February 1, 2018; 3) Defendant's opposition and reply shall be filed on or before March 22, 2018; and 4) Plaintiff's reply shall be filed on or before April 19, 2018. So ORDERED by Judge James E. Boasberg on 10/27/17. (lcjeb1) (Entered: 10/27/2017) (Entered: 10/27/2017)
2017-10-27Set/Reset Deadlines: Summary Judgment motions due by 12/15/2017. Response to Motion for Summary Judgment due by 2/1/2018. Reply to Motion for Summary Judgment due by 3/22/2018. Replies due by 4/19/2018. (nbn) (Entered: 10/31/2017)
2017-12-1314Consent MOTION for Extension of Time to File Summary Judgment Motion by UNITED STATES DEPARTMENT OF ENERGY (Hendry, Melanie) (Entered: 12/13/2017)
2017-12-13MINUTE ORDER GRANTING Defendant's 14 Motion for Extension of Time to File. The Court ORDERS that: (1) Defendant's Motion for Summary Judgment shall be filed by January 19, 2018; (2) Plaintiff's Opposition and Cross-Motion shall be filed by March 23, 2018; (3) Defendant's Opposition and Reply shall be filed by May 11, 2018; and (4) Plaintiff's Reply shall be filed by June 8, 2018. So ORDERED by Judge James E. Boasberg on 12/13/17. (lcjeb1) (Entered: 12/13/2017)
2017-12-13Set/Reset Deadlines: Summary Judgment motions due by 1/19/2018. Response to Motion for Summary Judgment due by 3/23/2018. Reply to Motion for Summary Judgment due by 5/11/2018. Replies due by 6/8/2018. (nbn) (Entered: 12/14/2017)
2018-01-1715Consent MOTION for Extension of Time to File Summary Judgment Motion and to Amend Briefing Schedule by UNITED STATES DEPARTMENT OF ENERGY (Attachments: # 1 Text of Proposed Order)(Hendry, Melanie) (Entered: 01/17/2018)
2018-01-18MINUTE ORDER GRANTING Consent 15 Motion for Extension of Time to File. The Court ORDERS that: (1) Defendant's Motion for Summary Judgment shall be filed by February 2, 2018; (2) Plaintiff's Opposition and Cross-Motion shall be filed by April 6, 2018; (3) Defendant's Opposition and Reply shall be filed by May 25, 2018; and (4) Plaintiff's Reply shall be filed by June 22, 2018. So ORDERED by Judge James E. Boasberg on 1/18/2018. (lcjeb3) (Entered: 01/18/2018)
2018-01-18Set/Reset Deadlines: Summary Judgment motions due by 2/2/2018. Response to Motion for Summary Judgment due by 4/6/2018. Reply to Motion for Summary Judgment due by 5/25/2018. Plaintiff Replies due by 6/22/2018. (nbn) (Entered: 01/18/2018)
2018-02-0216MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF ENERGY (Attachments: # 1 Declaration of Alexander C. Morris, # 2 Statement of Facts)(Hendry, Melanie) (Entered: 02/02/2018)
2018-04-0617Memorandum in opposition to re 16 MOTION for Summary Judgment filed by NISKANEN CENTER, INC.. (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 Exhibit Exhibit L, # 13 Exhibit Exhibit M, # 14 Exhibit Exhibit N, # 15 Exhibit Exhibit O, # 16 Exhibit Exhibit P, # 17 Exhibit Exhibit Q, # 18 Exhibit Exhibit R, # 19 Exhibit Exhibit S, # 20 Exhibit Exhibit T, # 21 Statement of Facts Response to Statement of Material Facts, # 22 Text of Proposed Order Proposed Order)(Glitzenstein, Eric) (Entered: 04/06/2018)
2018-04-0618MOTION for Summary Judgment by NISKANEN CENTER, INC. (Attachments: # 1 Statement of Facts Statement of Material Facts, # 2 Exhibit Exhibit A, # 3 Exhibit Exhibit B, # 4 Exhibit Exhibit C, # 5 Exhibit Exhibit D, # 6 Exhibit Exhibit E, # 7 Exhibit Exhibit F, # 8 Exhibit Exhibit G, # 9 Exhibit Exhibit H, # 10 Exhibit Exhibit I, # 11 Exhibit Exhibit J, # 12 Exhibit Exhibit K, # 13 Exhibit Exhibit L, # 14 Exhibit Exhibit M, # 15 Exhibit Exhibit N, # 16 Exhibit Exhibit O, # 17 Exhibit Exhibit P, # 18 Exhibit Exhibit Q, # 19 Exhibit Exhibit R, # 20 Exhibit Exhibit S, # 21 Exhibit Exhibit T, # 22 Text of Proposed Order Proposed Order)(Glitzenstein, Eric) (Entered: 04/06/2018)
2018-05-2219Consent MOTION for Extension of Time to File Response/Reply as to 18 MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF ENERGY (Hendry, Melanie) (Entered: 05/22/2018)
2018-05-22MINUTE ORDER GRANTING Defendant's 19 Motion for Extension of Time to File Response/Reply. The Court ORDERS that Defendant shall file its opposition and reply on or before June 22, 2018 and Plaintiff shall reply by July 23, 2018. So ORDERED by Judge James E. Boasberg on 5/22/18. (lcjeb1) (Entered: 05/22/2018)
2018-05-23Set/Reset Deadlines: Defendant's Reply to Motion for Summary Judgment due by 6/22/2018. Plaintiff's Reply due by 7/23/2018. (lsj) (Entered: 05/23/2018)
2018-06-2220RESPONSE re 18 MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF ENERGY. (Attachments: # 1 Declaration of Janet Gellicci, # 2 Supplemental Declaration of Alexander C. Morris, # 3 Statement of Facts)(Hendry, Melanie) (Entered: 06/22/2018)
2018-06-2221REPLY to opposition to motion re 16 MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF ENERGY. (Attachments: # 1 Declaration of Janet Gellicci, # 2 Declaration of Alexander C. Morris)(Hendry, Melanie) (Entered: 06/22/2018)
2018-07-1922REPLY to opposition to motion re 18 MOTION for Summary Judgment filed by NISKANEN CENTER, INC.. (Attachments: # 1 Exhibit Plaintiff's Exhibit U, # 2 Exhibit Plaintiff's Exhibit V, # 3 Exhibit Plaintiff's Exhibit W)(Glitzenstein, Eric) (Entered: 07/19/2018)
2018-07-31MINUTE ORDER: The Court ORDERS that Defendant shall provide the Court for in camera review by August 7, 2018, a set of clean and redacted documents showing the withholdings discussed in the summary-judgment briefing. So ORDERED by Judge James E. Boasberg on 7/31/18. (lcjeb1) (Entered: 07/31/2018)
2018-07-31Set/Reset Deadlines: In-Camera Submission due by 8/7/2018. (znbn) (Entered: 07/31/2018)
2018-08-0223NOTICE of Submission for In Camera Review by UNITED STATES DEPARTMENT OF ENERGY re 16 MOTION for Summary Judgment (Hendry, Melanie) (Entered: 08/02/2018)
2018-09-1324ORDER DENYING Defendant's 16 Motion for Summary Judgment and GRANTING IN PART and DENYING IN PART Plaintiff's 18 Motion for Summary Judgment. The Court ORDERS that the parties shall submit a Joint Status Report, including a joint proposed briefing schedule, on or before October 15, 2018. Signed by Judge James E. Boasberg on 9/13/2018. (lcjeb1) (Entered: 09/13/2018)
2018-09-1325MEMORANDUM OPINION re 24 Order on Motions for Summary Judgment. Signed by Judge James E. Boasberg on 9/13/2018. (lcjeb1) (Entered: 09/13/2018)
2018-09-13Set/Reset Deadlines: Joint Proposed Briefing Schedule due by 10/15/2018. (znbn) (Entered: 09/14/2018)
2018-10-1526Joint STATUS REPORT by UNITED STATES DEPARTMENT OF ENERGY. (Hendry, Melanie) (Entered: 10/15/2018)
2018-10-15MINUTE ORDER ADOPTING the parties' 26 Joint Status Report. The Court ORDERS that the parties shall file a further joint status report and, if necessary, a proposed briefing schedule, by November 15, 2018. So ORDERED by Judge James E. Boasberg on 10/15/2018. (lcjeb1) (Entered: 10/15/2018)
2018-10-15Set/Reset Deadlines: Joint Proposed Briefing Schedule due by 11/15/2018. (znbn) (Entered: 10/15/2018)
2018-10-1527MOTION for Extension of Time by UNITED STATES DEPARTMENT OF ENERGY. (See Docket Entry 26 to view document) (tth) (Entered: 10/18/2018)
2018-11-1328WITHDRAWN PURSUANT TO MINUTE ORDER FILED ON 11/13/2018.....NOTICE OF APPEAL TO DC CIRCUIT COURT as to 24 Order on Motion for Summary Judgment, 25 Memorandum & Opinion by UNITED STATES DEPARTMENT OF ENERGY. Fee Status: No Fee Paid. Parties have been notified. (Hendry, Melanie); Modified on 11/14/2018 (tth). (Entered: 11/13/2018)
2018-11-1329Unopposed MOTION to Withdraw 28 Notice of Appeal to DC Circuit Court by UNITED STATES DEPARTMENT OF ENERGY (Hendry, Melanie) (Entered: 11/13/2018)
2018-11-13MINUTE ORDER GRANTING Unopposed 29 Motion to Withdraw Notice of Appeal. So ORDERED by Judge James E. Boasberg on 11/13/2018. (lcjeb1) (Entered: 11/13/2018)
2018-11-1530Joint STATUS REPORT by NISKANEN CENTER, INC.. (Glitzenstein, Eric) (Entered: 11/15/2018)
2018-11-16MINUTE ORDER ADOPTING the parties' 30 Joint Status Report. The Court ORDERS that the parties shall file a further joint status report by December 18, 2018. So ORDERED by Judge James E. Boasberg on 11/16/2018. (lcjeb1) (Entered: 11/16/2018)
2018-11-16Set/Reset Deadlines: Joint Status Report due by 12/18/2018. (znbn) (Entered: 11/16/2018)
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by FOIA Project Staff
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