Skip to content

Case Detail

[Subscribe to updates]
Case TitleCENTER FOR PUBLIC INTEGRITY v. U.S. DEPARTMENT OF ENERGY et al
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2018cv01173
Date Filed2018-05-18
Date Closed2020-07-06
JudgeJudge Amy Berman Jackson
PlaintiffCENTER FOR PUBLIC INTEGRITY
Case DescriptionThe Center for Public Integrity submitted a FOIA request to the Department of Energy for records prepared by the national laboratories for consideration in the upcoming Nuclear Posture Review. The agency acknowledged receipt of the request and told CPI that it was withholding 17 documents under Exemption 5 (privileges). The agency also told CPI that it had referred 250 pages to the Department of State for their determination. After hearing nothing further from either agency, CPI sued both agencies.
Complaint issues: Failure to respond within statutory time limit, Litigation - Attorney's fees

DefendantU.S. DEPARTMENT OF ENERGY
DefendantU.S. DEPARTMENT OF STATE
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Complaint attachment 5
Opinion/Order [30]
FOIA Project Annotation: Judge Amy Berman Jackson has ruled that the National Nuclear Security Administration, the component of the Department of Energy responsible for operating and overseeing national laboratories, properly responded to a request from the Center for Public Integrity for records contributed by national labs for the preparation of the Nuclear Posture Review, which was being conducted by the Department of Defense. In response to the Center's request, NNSA concluded that three labs " Los Alamos, Livermore, and Sandia " had contributed to the review and searched those labs. NNSA located 17 documents. It withheld one document entirely under Exemption 5 (privileges) and referred the other 16 documents to the Department of State for its review. State indicated that it had made no redactions but that the 16 documents still needed to be reviewed by the Department of Defense. DOD disclosed redacted versions of all 16 documents. Berman Jackson decided to review the 16 documents in camera. CPI only challenged exemption claims made under Exemption 5 (privileges), Exemption 6 (invasion of privacy), and Exemption 7(F) (harm to any person). CPI argued that the records withheld under Exemption 5 were not deliberative. After her in camera review Berman Jackson found that "the information is deliberative, and that defendants have not withheld purely factual information. The agencies withheld policy alternatives that were not ultimately adopted by the agency in the Nuclear Posture Review, as well as analyses of national security concerns related to foreign nuclear capabilities." She pointed out that "the reports lay out the pros and cons involved in a number of potential decisions, which is precisely what is meant by the 'give-and-take of the consultative process.'" Berman Jackson also rejected CPI's claim that the agencies had failed to explain the foreseeable harm from disclosure of these documents. Instead, she observed that "the information at issue is related to national security, and the agencies should be free to discuss proposals internally that did not ultimately find their way into the final policy statement of the agency " the Nuclear Posture Review. Furthermore, if disclosure was ordered, deliberations on sensitive nuclear policy matters would be impaired, which goes to the heart of the deliberative process privilege." The agencies withheld the names of lab employees and their email addresses under Exemption 6. After reviewing the redactions in camera, Berman Jackson noted that the agency released "the names of the individuals who were responsible for major decisions and who could have a financial interest in the nuclear policy decisions embedded in the final Nuclear Posture Review." She agreed with the agency that disclosure of identifying information of non-senior officials "would allow the general public to associate them with the planning of possibly controversial nuclear policy and their work at NNSA's laboratories, which relates to national security issues." Berman Jackson also accepted the redaction of two paragraphs under Exemption 7(F). She observed that "because the information relates to security concerns at nuclear facilities, and the declarants have credibly averred that disclosure could make these facilities targets of foul play and endanger the individuals who work thee of the public at large, the Court finds that the information was compiled for law enforcement purposes, and it falls within the exemption." She emphasized, however, that "defendants should keep in mind that future affiants should provide more information regarding when, by whom, and why the information was 'compiled' to show how the information falls within Exemption 7 in general, and not simply rely on the ability to satisfy subsection (F)."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 7 - Law enforcement records, Exemption 7(F) - Harm to safety of any person
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2018-05-181COMPLAINT against U.S. DEPARTMENT OF ENERGY, U.S. DEPARTMENT OF STATE ( Filing fee $ 400 receipt number 0090-5489221) filed by CENTER FOR PUBLIC INTEGRITY. (Attachments: # 1 Civil Cover Sheet, # 2 Summons to Dept of Energy, # 3 Summons to Dept of State, # 4 Summons to U.S. Atty, # 5 Summons to Atty Gen)(Smith, Peter) (Entered: 05/18/2018)
2018-05-182LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by CENTER FOR PUBLIC INTEGRITY (Smith, Peter) (Entered: 05/18/2018)
2018-05-18Case Assigned to Judge Amy Berman Jackson. (zsth) (Entered: 05/18/2018)
2018-05-183SUMMONS (4) Issued Electronically as to U.S. DEPARTMENT OF ENERGY, U.S. DEPARTMENT OF STATE, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice and Consent)(zsth) (Entered: 05/18/2018)
2018-05-214RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 5/21/2018. Answer due for ALL FEDERAL DEFENDANTS by 6/20/2018. (Smith, Peter) (Entered: 05/21/2018)
2018-05-255NOTICE of Appearance by Rhonda Lisa Campbell on behalf of U.S. DEPARTMENT OF ENERGY, U.S. DEPARTMENT OF STATE (Campbell, Rhonda) (Entered: 05/25/2018)
2018-05-306RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. DEPARTMENT OF ENERGY served on 5/25/2018; U.S. DEPARTMENT OF STATE served on 5/29/2018, RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 5/29/2018. (Attachments: # 1 Exhibit Return Receipt - Energy Dep't, # 2 Exhibit Return Receipt - State Dep't, # 3 Exhibit Return Receipt - Attorney General)(Smith, Peter) (Entered: 05/30/2018)
2018-06-167MOTION for Extension of Time to File Answer re 1 Complaint, by U.S. DEPARTMENT OF ENERGY, U.S. DEPARTMENT OF STATE (Campbell, Rhonda) (Entered: 06/16/2018)
2018-06-18MINUTE ORDER granting 7 Motion for Extension of Time to Answer. Defendants must file a responsive pleading by July 25, 2018. SO ORDERED. Signed by Judge Amy Berman Jackson on 6/18/2018. (lcabj2) (Entered: 06/18/2018)
2018-07-208Unopposed MOTION for Leave to File Supplemental Complaint by CENTER FOR PUBLIC INTEGRITY (Attachments: # 1 Exhibit Proposed Supplemental Complaint, # 2 Text of Proposed Order)(Smith, Peter) (Entered: 07/20/2018)
2018-07-24MINUTE ORDER granting 8 consent motion for leave to file supplemental complaint. The Clerk of Court is ORDERED to file the Supplemental Complaint [8-1] on the docket. Defendants must file a responsive pleading by August 7, 2018. SO ORDERED. Signed by Judge Amy Berman Jackson on 7/24/2018. (lcabj2) (Entered: 07/24/2018)
2018-07-249SUPPLEMENT re 1 Complaint, filed by CENTER FOR PUBLIC INTEGRITY. (jf) (Entered: 07/25/2018)
2018-08-0810Unopposed MOTION for Leave to File Defendants' Answer by U.S. DEPARTMENT OF ENERGY, U.S. DEPARTMENT OF STATE (Attachments: # 1 Answer)(Campbell, Rhonda) (Entered: 08/08/2018)
2018-08-08MINUTE ORDER granting 10 Motion for Leave to File Answer. The Clerk of Court is directed to file defendants' Answer [10-1] on the docket. SO ORDERED. Signed by Judge Amy Berman Jackson on 8/8/2018. (lcabj2) (Entered: 08/08/2018)
2018-08-0811ANSWER to Complaint by U.S. DEPARTMENT OF ENERGY, U.S. DEPARTMENT OF STATE.(jf) (Entered: 08/13/2018)
2018-08-1312ORDER. Before the Court in this FOIA case are a complaint and an answer. The requirements of Local Civil Rule 16.3 and Rule 26(f) of the Federal Rules of Civil Procedure appear to be inapplicable. Defendants shall file a dispositive motion or, in the alternative, a report setting forth the schedule for the completion of its production of documents to plaintiff on or before September 12, 2018. See Order for details. SO ORDERED. Signed by Judge Amy Berman Jackson on 8/13/2018. (lcabj2) (Entered: 08/13/2018)
2018-09-1213STATUS REPORT by U.S. DEPARTMENT OF ENERGY, U.S. DEPARTMENT OF STATE. (Campbell, Rhonda) (Entered: 09/12/2018)
2018-09-12MINUTE ORDER. Defendants must file a status report by October 19, 2018. SO ORDERED. Signed by Judge Amy Berman Jackson on 9/12/2018. (lcabj2) (Entered: 09/12/2018)
2018-10-1914STATUS REPORT by U.S. DEPARTMENT OF ENERGY, U.S. DEPARTMENT OF STATE. (Campbell, Rhonda) (Entered: 10/19/2018)
2018-10-1915MOTION for Scheduling Order by CENTER FOR PUBLIC INTEGRITY (Attachments: # 1 Text of Proposed Order)(Smith, Peter) (Entered: 10/19/2018)
2018-10-19MINUTE ORDER granting 15 Motion for Scheduling Order. The processing of all records, including those referred to other agencies, must be completed by November 13, 2018. The defendants must provide plaintiff with a report and all records to be released in full or in part on or before November 16, 2018. The parties must file a joint status report indicating whether there are any issues to be resolved by the Court, and if so, proposing a schedule for further proceedings, by November 26, 2018. SO ORDERED. Signed by Judge Amy Berman Jackson on 10/19/2018. (lcabj2) (Entered: 10/19/2018)
2018-11-2616Joint STATUS REPORT by CENTER FOR PUBLIC INTEGRITY. (Smith, Peter) (Entered: 11/26/2018)
2018-11-2617MOTION for Briefing Schedule by CENTER FOR PUBLIC INTEGRITY. (See Docket Entry 16 to view document) (jf) (Entered: 11/28/2018)
2018-11-27MINUTE ORDER. In light of the parties' joint status report 16 , it is ORDERED that defendants must file a motion summary judgment by February 1, 2019; plaintiff must file an opposition and any cross-motion for summary judgement, to be supported by a single memorandum, by March 1, 2019; defendants must file a reply and any cross-opposition, to be supported by a single memorandum, by March 15, 2019; and plaintiff must file a reply by March 22, 2019. SO ORDERED. Signed by Judge Amy Berman Jackson on 11/27/2018. (lcabj2) (Entered: 11/27/2018)
2019-02-0418MOTION to Amend/Correct Briefing Schedule by U.S. DEPARTMENT OF ENERGY, U.S. DEPARTMENT OF STATE (Campbell, Rhonda) (Entered: 02/04/2019)
2019-02-0419Memorandum in opposition to re 18 MOTION to Amend/Correct Briefing Schedule filed by CENTER FOR PUBLIC INTEGRITY. (Attachments: # 1 Text of Proposed Order)(Smith, Peter) (Entered: 02/04/2019)
2019-02-06MINUTE ORDER granting 18 Motion to Amend Schedule. Defendants' motion for summary judgment must be filed by March 1, 2019; plaintiff's opposition and cross-motion for summary judgment must be filed by March 29, 2019; defendants' reply and cross-opposition must be filed by April 12, 2019; and plaintiff's cross-reply must be filed by April 19, 2019. SO ORDERED. Signed by Judge Amy Berman Jackson on 2/6/2019. (lcabj2) (Entered: 02/06/2019)
2019-03-0120MOTION for Summary Judgment by U.S. DEPARTMENT OF ENERGY, U.S. DEPARTMENT OF STATE (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Declaration Perez (Energy), # 4 Exhibit A (Perez -Energy), # 5 Exhibit B (Perez - Energy), # 6 Exhibit C (Perez-Energy), # 7 Declaration Stein (State), # 8 Exhibit Stein - State)(Campbell, Rhonda) (Entered: 03/01/2019)
2019-03-0421ERRATA by U.S. DEPARTMENT OF ENERGY, U.S. DEPARTMENT OF STATE 20 MOTION for Summary Judgment filed by U.S. DEPARTMENT OF STATE, U.S. DEPARTMENT OF ENERGY. (Attachments: # 1 Declaration Perez Declaration corrected, # 2 Memorandum in Support corrected, # 3 Statement of Facts corrected)(Campbell, Rhonda) (Entered: 03/04/2019)
2019-03-2922Cross MOTION for Summary Judgment by CENTER FOR PUBLIC INTEGRITY (Attachments: # 1 Statement of Facts, # 2 Text of Proposed Order, # 3 Exhibit Document 2)(Smith, Peter) (Entered: 03/29/2019)
2019-03-2923Memorandum in opposition to re 20 MOTION for Summary Judgment filed by CENTER FOR PUBLIC INTEGRITY. (Smith, Peter) (Entered: 03/29/2019)
2019-04-1224REPLY to opposition to motion re 22 Cross MOTION for Summary Judgment filed by U.S. DEPARTMENT OF ENERGY, U.S. DEPARTMENT OF STATE. (Attachments: # 1 Declaration Herrington, # 2 Declaration Weckerle)(Campbell, Rhonda) (Entered: 04/12/2019)
2019-04-1925REPLY to opposition to motion re 22 Cross MOTION for Summary Judgment filed by CENTER FOR PUBLIC INTEGRITY. (Smith, Peter) (Entered: 04/19/2019)
2020-03-13MINUTE ORDER. In order to assist the Court in making a responsible de novo determination, defendants are directed to deliver to chambers for in camera inspection, by March 17, 2020, the sixteen documents that they have redacted pursuant to exemptions 5, 6, and 7(F). See Ray v. Turner, 587 F.2d 1187, 1195 (D.C. Cir. 1978). SO ORDERED. Signed by Judge Amy Berman Jackson on 3/13/2020. (lcabj2) (Entered: 03/13/2020)
2020-03-1626Unopposed MOTION for Extension of Time to Submit In-Camera Material by U.S. DEPARTMENT OF ENERGY (Campbell, Rhonda) (Entered: 03/16/2020)
2020-03-20MINUTE ORDER. Defendants are ORDERED to inform the Court by March 23, 2020 whether the documents delivered in chambers for in camera review on March 17 was the entire set of sixteen documents for which they had redacted information under FOIA exemptions 5, 6, and 7(F). SO ORDERED. Signed by Judge Amy Berman Jackson on 3/20/2020. (lcabj2) (Entered: 03/20/2020)
2020-03-2327Unopposed MOTION for Extension of Time to File a Declaration pursuant to this Court's March 20, 2020, Order by U.S. DEPARTMENT OF ENERGY, U.S. DEPARTMENT OF STATE (Campbell, Rhonda) (Entered: 03/23/2020)
2020-03-2428NOTICE to the Court by U.S. DEPARTMENT OF ENERGY re Order,, Set Deadlines, (Attachments: # 1 Declaration)(Campbell, Rhonda) (Entered: 03/24/2020)
2020-03-25MINUTE ORDER. In light of the declaration submitted by defendants [28-1], and because the documents have already been delivered to chambers for in-camera inspection, it is ORDERED that defendants' motion for extension of time to submit in-camera material 26 and defendants' motion for extension of time to file a declaration 27 are hereby DENIED AS MOOT. SO ORDERED. Signed by Judge Amy Berman Jackson on 3/25/2020. (lcabj2) (Entered: 03/25/2020)
2020-04-0629ORDER. Pursuant to Federal Rules of Civil Procedure 56 and 58, and for the reasons stated in the accompanying Memorandum Opinion, it is hereby ORDERED that defendants' motion for summary judgment 20 is GRANTED IN PART AND DENIED IN PART, and plaintiff's cross-motion for summary judgment 22 is DENIED. It is FURTHER ORDERED that the parties shall file a joint status report by May 4, 2020 to update the Court on whether further proceedings are necessary in this matter. See Order for complete details. SO ORDERED. Signed by Judge Amy Berman Jackson on 4/6/2020. (lcabj2) (Entered: 04/06/2020)
2020-04-0630MEMORANDUM OPINION. Signed by Judge Amy Berman Jackson on 4/6/2020. (lcabj2) (Entered: 04/06/2020)
2020-04-2131NOTICE OF SUBSTITUTION OF COUNSEL by Marsha Wellknown Yee on behalf of U.S. DEPARTMENT OF ENERGY, U.S. DEPARTMENT OF STATE Substituting for attorney Rhonda L. Campbell (Yee, Marsha) (Entered: 04/21/2020)
2020-05-0432Joint STATUS REPORT by U.S. DEPARTMENT OF ENERGY, U.S. DEPARTMENT OF STATE. (Yee, Marsha) (Entered: 05/04/2020)
2020-05-06MINUTE ORDER. The parties must file a joint status report by July 9, 2020. SO ORDERED. Signed by Judge Amy Berman Jackson on 5/6/2020. (lcabj2) (Entered: 05/06/2020)
2020-07-0633STIPULATION of Dismissal by CENTER FOR PUBLIC INTEGRITY. (Smith, Peter) (Entered: 07/06/2020)
Hide Docket Events
by FOIA Project Staff
Skip to toolbar