Case Detail

FOIA Project Annotation: A federal court in Tennessee has ruled that the Tennessee Valley Authority properly withheld records under Exemption 4 (commercial and confidential) and Exemption 6 (invasion of privacy) in response to two FOIA requests from the Environmental and Policy Institute for records. The first request sought records concerning the agency's involvement with McGuireWoods, the Clean Air Act Monitoring Service, the Climate Legal Group (CLG), the Power Generators Air Coalition (PGen), and any correspondence between certain McGuireWoods attorneys and TVA through the date of the FOIA request. In response, TVA withheld records under Exemption 4, Exemption 5 (privileges), and Exemption 6. In its second request, EPI sought records about the agency's insurance policies underwritten by Associated Electric & Gas Insurance Services (AEGIS) for specific coal-fired power plants. In response to that request, TVA withheld records under Exemption 4 and Exemption 5. EPI filed administrative appeals of the denials for both requests. The agency upheld the denial of the appeals. EPI then filed suit, arguing that the agency had failed to conduct an adequate search and had improperly applied the exemptions. The court found that TVA had properly found that all the records withheld under Exemption 4 were commercial. Judge Thomas Varlan noted that the agency's "Exemption 4 withholdings in response to FOIA requests 'actually reveal basic commercial information' and qualify as 'commercial.' Plaintiff argues that such a ruling affords uniquely sweeping protection to attorney communications, but the Court disagrees. The breadth of coverage provided by Exemption 4 arises from the statute's uses of the term 'commercial,' which encompasses a wide range of information in non-legal industries." Varlan also rejected EPI's claim that the records were not received from a person, as required by Exemption 4. Instead, he pointed out that "the plain meaning of Exemption 4 and its accompanying definition of 'person' excludes purely internal, intra-agency communications, but it does not exclude correspondence between an agency and a 'person.'" Varlan also agreed that the records were provided with an expectation of confidentiality. He indicated that "McGuireWoods states that this material 'is customarily and actually kept private. . . and was provided to TVA and other members of the CLG with an expectation of privacy." Varlan then found that the records were protected by Exemption 6 as well, and that no public interest existed in disclosure that supported its disclosure.
Issues: Exemption 4 - Confidential business information, Exemption 6 - Invasion of privacy

Date Filed	Doc #	Docket Text
2022-06-23	1	COMPLAINT against Tennessee Valley Authority ( Filing fee $ 402 receipt number ATNEDC-5095526.), filed by Energy and Policy Institute. (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Other Civil Cover Sheet)(Irwin, Christopher) (Entered: 06/23/2022)
2022-06-23	2	First MOTION for Leave to Appear Pro Hac Vice ( Filing fee $ 90 receipt number ATNEDC-5095609.) by Energy and Policy Institute. (Irwin, Christopher) (Entered: 06/23/2022)
2022-06-23	3	First MOTION for Leave to Appear Pro Hac Vice Zehava Robbins ( Filing fee $ 90 receipt number ATNEDC-5095625.) by Energy and Policy Institute. (Irwin, Christopher) (Entered: 06/23/2022)
2022-06-24		District Judge Thomas A Varlan and Magistrate Judge Jill E McCook added. (JBR) (Entered: 06/24/2022)
2022-06-24	4	Summons Issued as to Tennessee Valley Authority. (JBR) (Entered: 06/24/2022)
2022-06-24	5	Order Governing Depositions. Signed by District Judge Thomas A Varlan on 6/24/22. (JBR) (Entered: 06/24/2022)
2022-06-24	6	Order Governing Motions To Dismiss. Signed by District Judge Thomas A Varlan on 6/24/22. (JBR) (Entered: 06/24/2022)
2022-06-24	7	Order Governing Sealing Confidential Information. Signed by District Judge Thomas A Varlan on 6/24/22. (JBR) (Entered: 06/24/2022)
2022-06-24		Clerk's Verification of PHV Requirements is complete regarding document: 3 First MOTION for Leave to Appear Pro Hac Vice Zehava Robbins ( Filing fee $ 90 receipt number ATNEDC-5095625.) filed by Energy and Policy Institute, 2 First MOTION for Leave to Appear Pro Hac Vice ( Filing fee $ 90 receipt number ATNEDC-5095609.) filed by Energy and Policy Institute (JBR) (Entered: 06/24/2022)
2022-06-24	8	ORDER OF RECUSAL.Signed by Magistrate Judge Jill E. McCook on 6/24/22. (ADA) (Entered: 06/24/2022)
2022-06-28	9	ORDER REASSIGNING CASE. Magistrate Judge Jill E McCook no longer assigned to case. Case reassigned to Magistrate Judge Debra C Poplin for all further proceedings. Signed by District Judge Travis R McDonough on 6/28/2022. (AWS) (Entered: 06/28/2022)
2022-06-30	10	ORDER granting 2 Motion for Leave to Appear Pro Hac Vice. You MUST register as an E-Filer here: https://pacer.psc.uscourts.gov/pscof/regWizard.jsf ; granting 3 Motion for Leave to Appear Pro Hac Vice. You MUST register as an E-Filer here: https://pacer.psc.uscourts.gov/pscof/regWizard.jsf . Signed by Magistrate Judge Debra C. Poplin on 6/30/2022. (This entry constitutes the complete Order of the Court). (AGA) (Entered: 06/30/2022)
2022-08-01	11	ANSWER to 1 Complaint, by Tennessee Valley Authority. (Attachments: # 1 Tait FOIA Request, # 2 TVA Response to Tait FOIA Request, # 3 Administrative Appeal of Tait FOIA Request, # 4 TVA Appellate Determination of Tait FOIA Request)(McCarty, Lane) (Entered: 08/01/2022)
2022-08-01	12	ORDER: The parties are ordered to confer and return the attached form within the time provided.Signed by District Judge Thomas A Varlan on 8/1/22. (Attachments: # 1 Other Notice of Consent/Non-Consent) (ABF) (Entered: 08/01/2022)
2022-08-02	13	SCHEDULING ORDER: Bench Trial set for 11/7/2023 09:00 PM in Courtroom 4 - Knoxville before District Judge Thomas A Varlan. Final Pretrial Conference set for 10/31/2023 02:30 PM in Courtroom 4 - Knoxville before District Judge Thomas A Varlan.Signed by District Judge Thomas A Varlan on 8/2/22. (ABF) (Entered: 08/02/2022)
2022-08-11	14	REPORT of Rule 26(f) Planning Meeting. (McCarty, Lane) (Entered: 08/11/2022)
2022-08-11	15	Joint MOTION to Amend/Revise Certain Deadlines and Obligations in the Scheduling Order by Tennessee Valley Authority. (Attachments: # 1 Proposed Order)(McCarty, Lane) (Entered: 08/11/2022)
2022-08-16	16	ORDER GRANTING JOINT MOTION TO AMEND CERTAIN DEADLINES AND OBLIGATIONS IN THE SCHEDULING ORDER 15 as set forth more fully herein. Signed by District Judge Thomas A Varlan on August 16, 2022. (AYB) (Entered: 08/16/2022)
2022-08-31	17	First MOTION to Amend/Revise 1 Complaint, by Energy and Policy Institute. (Attachments: # 1 Other Memorandum in Support of Motion for Leave to Amend, # 2 Other Amended Complaint)(Robbins, Zehava) (Entered: 08/31/2022)
2022-09-08	18	ORDER granting 17 Motion to Amend/Correct. Plaintiff SHALL FILE its Amended Complaint [Doc. 17-2] as its operative pleading in CM/ECF on or before September 14, 2022. Defendant SHALL respond to the Amended Complaint within thirty days of its filing. Signed by Magistrate Judge Debra C Poplin on 9/8/22. (ABF) (Entered: 09/08/2022)
2022-09-08	19	AMENDED COMPLAINT against Tennessee Valley Authority., filed by Energy and Policy Institute.(Robbins, Zehava) (Entered: 09/08/2022)
2022-09-15	20	NOTICE OF NONCONSENT by Tennessee Valley Authority (McCarty, Lane) (Entered: 09/15/2022)
2022-10-06	21	ANSWER to 19 Amended Complaint by Tennessee Valley Authority. (Attachments: # 1 FOIA Request 109, # 2 TVA Acknowledgment of FOIA Request 109, # 3 TVA Response to FOIA Request 109, # 4 Administrative Appeal of FOIA Request 109, # 5 TVA Appellate Determination FOIA Request 109, # 6 FOIA Request 208, # 7 TVA Acknowledgment of FOIA Request 208, # 8 TVA Response to FOIA Request 208, # 9 Administrative Appeal of FOIA Request 208, # 10 TVA Appellate Determinaton of FOIA Request 208)(McCarty, Lane) (Entered: 10/06/2022)
2022-12-22	22	Joint MOTION to Modify Scheduling Order Deadlines for Dispositive Motion Briefing by Tennessee Valley Authority. (Attachments: # 1 Proposed Order)(McCarty, Lane) (Entered: 12/22/2022)
2023-01-10	23	ORDER granting 22 Joint Motion to Modify Scheduling Order Deadlines for Dispositive Motion Briefing. However, the Court finds it appropriate to reinstate the deadline for dispositive motions that was initially set in the Courts Scheduling Order 13 . The parties are reminded that they are free to file dispositive motions at any time before this deadline expires, including in accordance with the deadlines that they have requested in their Joint Motion 22 . Thus, the deadline for dispositive motions in the Courts Scheduling Order 13 is reinstated, and all other provisions of the Scheduling Order 13 , except as otherwise amended 16 , will remain unchanged. Signed by District Judge Thomas A Varlan on 1/10/23. (ABF) (Entered: 01/10/2023)
2023-05-16	24	MOTION for Summary Judgment by Energy and Policy Institute. (Robbins, Zehava) (Entered: 05/16/2023)
2023-05-16	25	MEMORANDUM in Support of Motion re 24 MOTION for Summary Judgment filed by Energy and Policy Institute. (Robbins, Zehava) (Entered: 05/16/2023)
2023-05-16	26	STATEMENT of Material Facts re 24 MOTION for Summary Judgment filed by Energy and Policy Institute. (Robbins, Zehava) (Entered: 05/16/2023)
2023-05-16	27	AFFIDAVIT in Support re 24 MOTION for Summary Judgment filed by Energy and Policy Institute. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D)(Robbins, Zehava) (Entered: 05/16/2023)
2023-05-22	28	Joint MOTION to File Consolidated Briefs and for Stipulated Briefing Schedule by Tennessee Valley Authority. (Attachments: # 1 Proposed Order)(McCarty, Lane) (Entered: 05/22/2023)
2023-05-23	29	ORDER granting 28 Motion to File Consolidated Briefs and for Stipulated Briefing Schedule. On or before Monday, June 12, 2023, defendant SHALL file a consolidated brief of up to 35 pages in response to plaintiffs motion for summary judgment [Doc. 24] and in support of defendants own motion for summary judgment. In addition, on or before Monday, July 10, 2023, plaintiff SHALL file a consolidated brief of up to 35 pages in reply to defendants response and in response to defendants motion for summary judgment. Further, on or before Monday, July 17, 2023, defendant SHALL file any reply to plaintiffsresponse. All unexpired scheduling deadlines as of the date of the filing of the Motion SHALL be applied according to the same time limitations set forth in the Courts Scheduling Order [Doc. 13, as amended at Docs. 16, 23]. Signed by District Judge Thomas A Varlan on 5/23/23. (ABF) (Entered: 05/23/2023)
2023-06-12	30	MOTION for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment by Tennessee Valley Authority. (McCarty, Lane) (Entered: 06/12/2023)
2023-06-12	31	MEMORANDUM in Support of Motion re 30 MOTION for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment , 24 MOTION for Summary Judgment filed by Tennessee Valley Authority. (Attachments: # 1 Attach. 1 - Doc. No. 365)(McCarty, Lane) (Entered: 06/12/2023)
2023-06-12	32	STATEMENT of Material Facts re 30 MOTION for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment , 24 MOTION for Summary Judgment filed by Tennessee Valley Authority. (McCarty, Lane) (Entered: 06/12/2023)
2023-06-12	33	AFFIDAVIT in Support re 30 MOTION for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment , 24 MOTION for Summary Judgment Declaration of Buddy Eller filed by Tennessee Valley Authority. (Attachments: # 1 Attach. 1 - Litigation Counsel's January 13, 2023 Letter to EPI, # 2 Attach. 2 - Litigation Counsel's April 4, 2023 Letter to EPI, # 3 Attach. 3 - Vaughn Index for FOIA Request 109)(McCarty, Lane) (Entered: 06/12/2023)
2023-06-12	34	AFFIDAVIT in Support re 30 MOTION for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment , 24 MOTION for Summary Judgment Declaration of Makram Jaber filed by Tennessee Valley Authority. (Attachments: # 1 Attach. 1 - TVA's January 14, 2022 Letter to McGuireWoods, # 2 Attach. 2 - McGuireWoods' Objection, # 3 Attach. 3 - Contract No. 15140, # 4 Attach. 4 - Vaughn Index Chart)(McCarty, Lane) (Entered: 06/12/2023)
2023-06-12	35	AFFIDAVIT in Support re 30 MOTION for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment , 24 MOTION for Summary Judgment Declaration of Maria Gillen filed by Tennessee Valley Authority. (McCarty, Lane) (Entered: 06/12/2023)
2023-06-12	36	AFFIDAVIT in Support re 30 MOTION for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment , 24 MOTION for Summary Judgment Declaration of Martin Gaffney filed by Tennessee Valley Authority. (Attachments: # 1 Attach. 1 - TVA's March 18, 2022 Letter to AEGIS, # 2 Attach. 2 - AEGIS' Objection)(McCarty, Lane) (Entered: 06/12/2023)
2023-06-12	37	AFFIDAVIT in Support re 30 MOTION for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment , 24 MOTION for Summary Judgment Declaration of Kirk Kelley filed by Tennessee Valley Authority. (McCarty, Lane) (Entered: 06/12/2023)
2023-07-10	38	REPLY to Response to Motion re 30 MOTION for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment , 24 MOTION for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment filed by Energy and Policy Institute. (Attachments: # 1 Affidavit Supplemental Declaration of Daniel Tait, # 2 Exhibit Exhibit A: EPI's Exemption 4 Objections, # 3 Exhibit Exhibit B: EPI's Exemption 5 Objections)(Robbins, Zehava) (Entered: 07/10/2023)
2023-07-10	39	RESPONSE to Statement of Material Facts re 32 Statement of Material Facts filed by Energy and Policy Institute. (Robbins, Zehava) (Entered: 07/10/2023)
2023-07-17	40	REPLY to Response to Motion re 30 MOTION for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment filed by Tennessee Valley Authority. (McCarty, Lane) (Entered: 07/17/2023)
2023-07-17	41	AFFIDAVIT re 40 Reply to Response to Motion Supplemental Declaration of Makram B. Jaber by Tennessee Valley Authority. (McCarty, Lane) (Entered: 07/17/2023)
2023-08-11	42	STATUS REPORT Joint Status Report by Tennessee Valley Authority. (McCarty, Lane) (Entered: 08/11/2023)
2023-10-04	43	Joint MOTION to Continue Trial and Suspend Scheduling Order Deadlines by Tennessee Valley Authority. (Attachments: # 1 Proposed Order)(McCarty, Lane) (Entered: 10/04/2023)
2023-10-06	44	ORDER: In light of the cited deficiencies in defendant's Vaughn Index and the supplementary declarations, the Court ORDERS defendant to submit a more detailed Vaughn Index and/or supplement its declarations by Tuesday, November 28, 2023. Further, in light of the above and the parties' joint motion to continue the trial date and suspend scheduling order deadlines [Doc. 43 ], this case is STAYED and the remaining scheduling order deadlines are SUSPENDED pending resolution of the parties' motions for summary judgment. The trial originally scheduled for November 7, 2023 is CANCELLED. Accordingly, the parties' motion [Doc. 43 ] is DENIED as MOOT. Signed by District Judge Thomas A Varlan on 10/6/23. (JBR) (Entered: 10/06/2023)
2023-11-28	45	SUPPLEMENT to 30 MOTION for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment by Tennessee Valley Authority. (Attachments: # 1 Supplemental Vaughn Index)(McCarty, Lane) (Entered: 11/28/2023)
2023-11-28	46	AFFIDAVIT re 45 Supplement Second Supplemental Declaration of Makram B. Jaber by Tennessee Valley Authority. (Attachments: # 1 Supplemental Chart)(McCarty, Lane) (Entered: 11/28/2023)
2023-12-12	47	RESPONSE re 46 Affidavit filed by Tennessee Valley Authority, 45 Supplement filed by Tennessee Valley Authority . (Kole, Allison) (Entered: 12/12/2023)
2024-10-21	48	MEMORANDUM OPINION: For the reasons above, the Court GRANTS defendant's motion for summary judgment [Doc. 30], DENIES plaintiff's motion for summary judgment [Doc. 24], and this case will be DISMISSED. An appropriate order shall enter. See Order for details. Signed by District Judge Thomas A Varlan on 10/21/2024. (LCK) (Entered: 10/21/2024)
2024-10-21	49	JUDGMENT ORDER re 48 Memorandum Opinion. For the reasons stated in the memorandum opinion, filed contemporaneously with this order, defendant's motion for summary judgment [Doc. 30] is GRANTED and plaintiff's motion [Doc. 24] is DENIED. The Clerk of Court is DIRECTED to CLOSE this case. Entered as a Judgment by LeAnna R. Wilson, Clerk of Court. Signed by District Judge Thomas A Varlan on 10/21/2024. (LCK) (Entered: 10/21/2024)
2024-11-04	50	MOTION for Extension of Time to File Motion for Attorney Fees and Costs by Energy and Policy Institute. (Robbins, Zehava) (Entered: 11/04/2024)
2024-11-05	51	Now before the Court is Plaintiff's Unopposed Motion to Set a Briefing Schedule for Attorney Fees [Doc. 50]. In light of the parties' agreement, and for good cause shown, the Court GRANTS the motion [Doc. 50] . Plaintiff SHALL file its motion for attorney's fees on or before November 18, 2024 . Defendant SHALL file its response on or before December 10, 2024 , and Plaintiff shall file its reply on or before December 20, 2024 . Signed by Magistrate Judge Debra C. Poplin on 11/5/2024. (This entry constitutes the complete Order of the Court.) (AGA) (Entered: 11/05/2024)
2024-11-18	52	First MOTION for Attorney Fees and Costs by Energy and Policy Institute. (Attachments: # 1 Proposed Order)(Robbins, Zehava) (Entered: 11/18/2024)
2024-11-18	53	MEMORANDUM in Support of Motion re 52 First MOTION for Attorney Fees and Costs filed by Energy and Policy Institute. (Robbins, Zehava) (Entered: 11/18/2024)
2024-11-18	54	AFFIDAVIT in Support re 52 First MOTION for Attorney Fees and Costs (Exhibit A, Kole Declaration and Attachments) filed by Energy and Policy Institute. (Robbins, Zehava) (Entered: 11/18/2024)
2024-11-18	55	AFFIDAVIT in Support re 52 First MOTION for Attorney Fees and Costs (Exhibit B, Robbins Declaration and Attachment) filed by Energy and Policy Institute. (Robbins, Zehava) (Entered: 11/18/2024)
2024-11-18	56	AFFIDAVIT in Support re 52 First MOTION for Attorney Fees and Costs (Exhibit C, Irwin Declaration and Attachment) filed by Energy and Policy Institute. (Robbins, Zehava) (Entered: 11/18/2024)
2024-11-19	57	NOTICE by Energy and Policy Institute re 52 First MOTION for Attorney Fees and Costs Notice of Errata Re Proposed Order (Attachments: # 1 Exhibit Proposed Order)(Robbins, Zehava) (Entered: 11/19/2024)
2024-11-19	58	NOTICE by Energy and Policy Institute re 55 Affidavit in Support of Motion Notice of Errata re Robbins Declaration and Attachment (Attachments: # 1 Exhibit Robbins Declaration and Attachment)(Robbins, Zehava) (Entered: 11/19/2024)
2024-12-10	59	RESPONSE in Opposition re 52 First MOTION for Attorney Fees and Costs filed by Tennessee Valley Authority. (Attachments: # 1 Jan. 13, 2023 ltr, # 2 Apr. 4, 2023 ltr., # 3 Jun. 9, 2023 ltr, # 4 Nov. 28, 2023 ltr.)(McCarty, Lane) (Entered: 12/10/2024)
2024-12-19	60	NOTICE OF APPEAL by Energy and Policy Institute. Filing fee $ 605, receipt number ATNEDC-5864348. (Kole, Allison) (Entered: 12/19/2024)
2024-12-20	61	USCA Case Number 24-6134 for 60 Notice of Appeal filed by Energy and Policy Institute. (MKM) (Entered: 12/20/2024)
2024-12-20	62	REPLY to Response to Motion re 52 First MOTION for Attorney Fees and Costs filed by Energy and Policy Institute. (Robbins, Zehava) (Entered: 12/20/2024)
2024-12-20	63	AFFIDAVIT re 62 Reply to Response to Motion Exhibit A, Second Suppl. Tait Decl. by Energy and Policy Institute. (Robbins, Zehava) (Entered: 12/20/2024)
2024-12-20	64	AFFIDAVIT re 62 Reply to Response to Motion Exhibit B, Second Irwin Decl. by Energy and Policy Institute. (Attachments: # 1 Exhibit Amended Irwin Fee Sheet)(Robbins, Zehava) (Entered: 12/20/2024)
2024-12-20	65	AMENDED DOCUMENT by Energy and Policy Institute. Amendment to 62 Reply to Response to Motion Exhibit C, Amended Kole and Robbins Fee Sheets . (Robbins, Zehava) (Entered: 12/20/2024)
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