Case Detail

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

Date Filed	Doc #	Docket Text
2017-04-17	1	COMPLAINT 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)
2017-04-18		Case Assigned to Judge James E. Boasberg. (zsb) (Entered: 04/18/2017)
2017-04-18	2	SUMMONS (1) Issued Electronically as to UNITED STATES DEPARTMENT OF ENERGY (Attachment: # 1 Consent Form)(zsb) (Entered: 04/18/2017)
2017-04-18		SUMMONS 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)
2017-04-18	3	ENTERED IN ERROR....REQUEST FOR SUMMONS TO ISSUE filed by NISKANEN CENTER, INC..(Bookbinder, David) Modified on 4/19/2017 (znmw). (Entered: 04/18/2017)
2017-04-18	4	ENTERED IN ERROR.....REQUEST FOR SUMMONS TO ISSUE filed by NISKANEN CENTER, INC..(Bookbinder, David) Modified on 4/19/2017 (znmw). (Entered: 04/18/2017)
2017-04-20	5	REQUEST FOR SUMMONS TO ISSUE filed by NISKANEN CENTER, INC..(Bookbinder, David) (Entered: 04/20/2017)
2017-04-20	6	REQUEST FOR SUMMONS TO ISSUE filed by NISKANEN CENTER, INC..(Bookbinder, David) (Entered: 04/20/2017)
2017-04-20	7	SUMMONS (2) Issued Electronically as to U.S. Attorney and U.S. Attorney General (Attachment: # 1 Consent Form)(sb) (Entered: 04/20/2017)
2017-05-25	8	NOTICE of Appearance by Melanie Dyani Hendry on behalf of UNITED STATES DEPARTMENT OF ENERGY (Hendry, Melanie) (Entered: 05/25/2017)
2017-05-25	9	ANSWER to Complaint by UNITED STATES DEPARTMENT OF ENERGY.(Hendry, Melanie) (Entered: 05/25/2017)
2017-05-26		MINUTE 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)
2017-05-26		Set/Reset Deadlines: Proposed Briefing Schedule due by 6/8/2017 (lsj) (Entered: 05/26/2017)
2017-06-07	10	Joint STATUS REPORT by UNITED STATES DEPARTMENT OF ENERGY. (Hendry, Melanie) (Entered: 06/07/2017)
2017-06-07		MINUTE 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)
2017-06-07		Set/Reset Deadlines: Joint Status Report due by 8/31/2017. (nbn) (Entered: 06/07/2017)
2017-08-30	11	Joint STATUS REPORT by UNITED STATES DEPARTMENT OF ENERGY. (Hendry, Melanie) (Entered: 08/30/2017)
2017-08-30		MINUTE 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)
2017-08-30		Set/Reset Deadlines: Joint Status Report due by 10/27/2017. (nbn) (Entered: 08/31/2017)
2017-10-17	12	NOTICE of Appearance by Eric Robert Glitzenstein on behalf of NISKANEN CENTER, INC. (Glitzenstein, Eric) (Entered: 10/17/2017)
2017-10-27	13	Joint STATUS REPORT by UNITED STATES DEPARTMENT OF ENERGY. (Hendry, Melanie) (Entered: 10/27/2017)
2017-10-27		MINUTE 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)
2017-10-27		Set/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)
2017-12-13	14	Consent MOTION for Extension of Time to File Summary Judgment Motion by UNITED STATES DEPARTMENT OF ENERGY (Hendry, Melanie) (Entered: 12/13/2017)
2017-12-13		MINUTE 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)
2017-12-13		Set/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)
2018-01-17	15	Consent 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)
2018-01-18		MINUTE 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)
2018-01-18		Set/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)
2018-02-02	16	MOTION 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)
2018-04-06	17	Memorandum 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)
2018-04-06	18	MOTION 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)
2018-05-22	19	Consent 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)
2018-05-22		MINUTE 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)
2018-05-23		Set/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)
2018-06-22	20	RESPONSE 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)
2018-06-22	21	REPLY 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)
2018-07-19	22	REPLY 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)
2018-07-31		MINUTE 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)
2018-07-31		Set/Reset Deadlines: In-Camera Submission due by 8/7/2018. (znbn) (Entered: 07/31/2018)
2018-08-02	23	NOTICE of Submission for In Camera Review by UNITED STATES DEPARTMENT OF ENERGY re 16 MOTION for Summary Judgment (Hendry, Melanie) (Entered: 08/02/2018)
2018-09-13	24	ORDER 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)
2018-09-13	25	MEMORANDUM OPINION re 24 Order on Motions for Summary Judgment. Signed by Judge James E. Boasberg on 9/13/2018. (lcjeb1) (Entered: 09/13/2018)
2018-09-13		Set/Reset Deadlines: Joint Proposed Briefing Schedule due by 10/15/2018. (znbn) (Entered: 09/14/2018)
2018-10-15	26	Joint STATUS REPORT by UNITED STATES DEPARTMENT OF ENERGY. (Hendry, Melanie) (Entered: 10/15/2018)
2018-10-15		MINUTE 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)
2018-10-15		Set/Reset Deadlines: Joint Proposed Briefing Schedule due by 11/15/2018. (znbn) (Entered: 10/15/2018)
2018-10-15	27	MOTION for Extension of Time by UNITED STATES DEPARTMENT OF ENERGY. (See Docket Entry 26 to view document) (tth) (Entered: 10/18/2018)
2018-11-13	28	WITHDRAWN 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)
2018-11-13	29	Unopposed MOTION to Withdraw 28 Notice of Appeal to DC Circuit Court by UNITED STATES DEPARTMENT OF ENERGY (Hendry, Melanie) (Entered: 11/13/2018)
2018-11-13		MINUTE 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)
2018-11-15	30	Joint STATUS REPORT by NISKANEN CENTER, INC.. (Glitzenstein, Eric) (Entered: 11/15/2018)
2018-11-16		MINUTE 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)
2018-11-16		Set/Reset Deadlines: Joint Status Report due by 12/18/2018. (znbn) (Entered: 11/16/2018)
2018-12-18	31	Joint STATUS REPORT by UNITED STATES DEPARTMENT OF ENERGY. (Hendry, Melanie) (Entered: 12/18/2018)
2018-12-19		MINUTE ORDER ADOPTING the parties' 31 Joint Status Report. The Court ORDERS that the parties shall file a further joint status report by January 31, 2019. So ORDERED by Judge James E. Boasberg on 12/19/2018. (lcjeb1) (Entered: 12/19/2018)
2018-12-19		Set/Reset Deadlines: Joint Status Report due by 1/31/2019. (znbn) (Entered: 12/19/2018)
2019-01-31	32	Joint STATUS REPORT by UNITED STATES DEPARTMENT OF ENERGY. (Hendry, Melanie) (Entered: 01/31/2019)
2019-01-31		MINUTE ORDER ADOPTING the parties' 32 Joint Status Report. The Court ORDERS that the parties shall file a further joint status report by April 5, 2019. So ORDERED by Judge James E. Boasberg on 1/31/2019. (lcjeb1) (Entered: 01/31/2019)
2019-01-31		Set/Reset Deadlines: Joint Status Report due by 4/5/2019. (znbn) (Entered: 02/01/2019)
2019-04-05	33	Joint STATUS REPORT by UNITED STATES DEPARTMENT OF ENERGY. (Hendry, Melanie) (Entered: 04/05/2019)
2019-04-05		MINUTE ORDER ADOPTING the parties' 33 Joint Status Report. The Court ORDERS that the parties shall file a further joint status report by May 22, 2019. So ORDERED by Judge James E. Boasberg on 4/5/2019. (lcjeb1) (Entered: 04/05/2019)
2019-04-05		Set/Reset Deadlines: Joint Status Report due by 5/22/2019. (znbn) (Entered: 04/05/2019)
2019-05-22	34	Joint STATUS REPORT by UNITED STATES DEPARTMENT OF ENERGY. (Hendry, Melanie) (Entered: 05/22/2019)
2019-05-23		MINUTE ORDER ADOPTING the parties' 34 Joint Status Report and briefing schedule. The Court ORDERS that: 1) Plaintiff's Motion for an award of costs and fees shall be due by May 31, 2019; 2) Defendant's Opposition shall be due by July 1, 2019; and 3) Plaintiff's Reply shall be due by July 19, 2019. So ORDERED by Judge James E. Boasberg on 5/23/2019. (lcjeb1) (Entered: 05/23/2019)
2019-05-23		Set/Reset Deadlines: Motions due by 5/31/2019. Responses due by 7/1/2019. Replies due by 7/19/2019. (znbn) (Entered: 05/24/2019)
2019-05-31	35	MOTION for Attorney Fees 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 Text of Proposed Order Proposed Order)(Glitzenstein, Eric) (Entered: 05/31/2019)
2019-06-27	36	Consent MOTION for Extension of Time to File Response/Reply as to 35 MOTION for Attorney Fees and to Amend Briefing Schedule by UNITED STATES DEPARTMENT OF ENERGY (Hendry, Melanie) (Entered: 06/27/2019)
2019-07-01		MINUTE ORDER GRANTING Consent 36 Motion for Extension of Time. The Court ORDERS that: (1) Defendant shall file its Opposition by July 22, 2019; and (2) Plaintiff shall file its Reply by August 22, 2019. So ORDERED by Judge James E. Boasberg on 7/1/2019. (lcjeb1) (Entered: 07/01/2019)
2019-07-01		Set/Reset Deadlines: Responses due by 7/22/2019. Replies due by 8/22/2019. (znbn) (Entered: 07/01/2019)
2019-07-18	37	Consent MOTION for Extension of Time to File Response/Reply as to 35 MOTION for Attorney Fees by UNITED STATES DEPARTMENT OF ENERGY (Hendry, Melanie) (Entered: 07/18/2019)
2019-07-18		MINUTE ORDER GRANTING Consent 37 Motion for Extension of Time. The Court ORDERS that Defendant's opposition shall be due on or before August 9, 2019. So ORDERED by Judge James E. Boasberg on 7/18/2019. (lcjeb1) (Entered: 07/18/2019)
2019-07-18		Set/Reset Deadlines: Opposition due by 8/9/2019. (znbn) (Entered: 07/19/2019)
2019-08-07	38	STIPULATION of Settlement and Dismissal and Proposed Order by UNITED STATES DEPARTMENT OF ENERGY. (Hendry, Melanie) (Entered: 08/07/2019)
2019-08-07		MINUTE ORDER: Per the parties' 38 Stipulation, the Court ORDERS that the case is DISMISSED WITH PREJUDICE. So ORDERED by Judge James E. Boasberg on 8/7/2019. (lcjeb1) (Entered: 08/07/2019)
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