Case Detail

FOIA Project Annotation: Judge Timothy Kelly has ruled that the Department of Energy has not yet shown that it conducted an adequate search for records discussing climate change and personnel changes at the agency as the result of inquiries from the presidential transition team in response to a two-part request from the Protect Democracy Project. Further, Kelly found that neither the agency nor PDP addressed the issue of whether the presidential transition team qualified as an agency for purposes of Exemption 5 (privileges) and that records pertaining to Secretary Rick Perry's security clearance were not protected under the deliberative process privilege. The agency searched the email account of Ingrid Kolb, the director of the Office of Management, since all transition-related communications would have passed through her. Kolb conducted a manual search based on her personal knowledge. This search yielded 45 documents, which were disclosed with redactions under Exemption 5 and Exemption 6 (invasion of privacy). An additional electronic search of Kolb's files was done using keywords, which located an additional seven documents. The search for records responsive to the request for personnel changes was conducted by the Chief Human Capital Officer. That search located 24 responsive documents. PDP challenged the adequacy of the agency's search. Kelly agreed with PDP that the agency had not explained why it limited it search for climate change-related records to Kolb, since the disclosed records showed that Kolb had been in contact with other agency employees to coordinate her efforts. Kelly noted that "such employees would be a logical starting place for DOE in identifying a bounded universe of additional custodians" and ordered the agency to expand it search to those employees. Kelly rejected PDP's claim that the agency should have searched for records using the terms "climate change" and "global warming." He pointed out that Protect Democracy is not looking for all documents about climate change, but for documents about a questionnaire that was, only in part, about climate change." But because he had ordered the agency to expand the number of custodians whose records would be searched, Kelly indicated that he would not rule on the sufficiency of search terms yet "because it may well be that the work of identifying an appropriate list of custodians will also lead to additional search terms." Turning to the Exemption 5 issues, Kelly observed that "assuming that the transition team is not an 'agency' under FOIA, this Court is not certain it necessarily follows that documents shared between DOE and the transition team fall outside Exemption 5. The D.C Circuit has held that agency communications with the White House are 'inter-agency' communications even though the President and his immediate staff are not an 'agency' within the meaning of FOIA." He pointed out that if PDP continued to dispute whether the questionnaire was privileged, it would have to address the issue of the transition team's agency status. As to whether records concerning Perry's security clearance were protected by the deliberative process privilege, Kelly observed that "it is not clear to the Court how these discussions involved any kind of policy judgment, as opposed to purely logistical considerations."
Issues: Adequacy - Search, Agency - Federal, Exemption 5 - Privileges

Date Filed	Doc #	Docket Text
2017-04-27	1	COMPLAINT against U.S. DEPARTMENT OF ENERGY ( Filing fee $ 400 receipt number 0090-4930393) filed by THE PROTECT DEMOCRACY PROJECT, INC.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Summons, # 5 Summons, # 6 Summons, # 7 Civil Cover Sheet)(Harrison, Lindsay) (Entered: 04/27/2017)
2017-04-27	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by THE PROTECT DEMOCRACY PROJECT, INC. (Harrison, Lindsay) (Entered: 04/27/2017)
2017-05-01		Case Assigned to Judge Royce C. Lamberth. (zsb) (Entered: 05/01/2017)
2017-05-01	3	SUMMONS (3) Issued Electronically as to U.S. DEPARTMENT OF ENERGY, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Consent Form)(zsb) (Entered: 05/01/2017)
2017-05-08	4	NOTICE of Appearance by Benjamin Leon Berwick on behalf of PROTECT DEMOCRACY PROJECT, INC. (Berwick, Benjamin) (Entered: 05/08/2017)
2017-06-02	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 5/8/2017. Answer due for ALL FEDERAL DEFENDANTS by 6/7/2017. (Harrison, Lindsay) (Entered: 06/02/2017)
2017-06-02	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 05/08/2017. (Harrison, Lindsay) (Entered: 06/02/2017)
2017-06-05	7	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. DEPARTMENT OF ENERGY served on 5/26/2017 (Harrison, Lindsay) (Entered: 06/05/2017)
2017-06-07	8	ANSWER to 1 Complaint by U.S. DEPARTMENT OF ENERGY.(Roth, Dena) Modified to add link on 6/8/2017 (znmw). (Entered: 06/07/2017)
2017-09-15		Case directly reassigned to Judge Timothy J. Kelly. Judge Royce C. Lamberth is no longer assigned to the case. (ztnr) (Entered: 09/15/2017)
2017-10-12		MINUTE ORDER: Before the Court in this FOIA case are a complaint and an answer. The requirements of LCvR 16.3 and Rule 26(f) of the Federal Rules of Civil Procedure appear to be inapplicable. It is hereby ORDERED that the parties shall meet and confer and propose a schedule for proceeding in this matter. The schedule shall address the status of Plaintiff's FOIA request, the anticipated number of documents responsive to Plaintiff's FOIA request, the anticipated date(s) for release of the documents requested by Plaintiff, whether a motion for an Open America stay is likely in this case, whether a Vaughn index will be required in this case, whether and when either party anticipates filing a dispositive motion, and any other pertinent issues. The parties shall file a joint status report that addresses these issues and that contains a proposed schedule and proposed order not later than 10/26/17. Signed by Judge Timothy J. Kelly on 10/12/2017. (lctjk1) (Entered: 10/12/2017)
2017-10-13		Set/Reset Deadlines: Joint Status Report due by 10/26/2017. (kh) (Entered: 10/13/2017)
2017-10-26	9	Joint STATUS REPORT by U.S. DEPARTMENT OF ENERGY. (Attachments: # 1 Text of Proposed Order)(Roth, Dena) (Entered: 10/26/2017)
2017-10-27		MINUTE ORDER: In light of the parties' 9 Joint STATUS REPORT dated October 26, 2017, it is hereby ORDERED that the parties shall file a joint status report proposing a schedule for further proceedings by the earlier of December 15, 2017, or fourteen days following Defendant's final release of non-exempt responsive records, unless a stipulation of dismissal is filed before that time. Signed by Judge Timothy J. Kelly on 10/27/2017. (lctjk2) (Entered: 10/27/2017)
2017-12-01	10	NOTICE of Appearance by Daniel J. Halainen on behalf of U.S. DEPARTMENT OF ENERGY (Halainen, Daniel) (Entered: 12/01/2017)
2017-12-15	11	Joint STATUS REPORT by U.S. DEPARTMENT OF ENERGY. (Attachments: # 1 Text of Proposed Order)(Halainen, Daniel) (Entered: 12/15/2017)
2017-12-18		MINUTE ORDER: In light of the parties' 11 Joint Status Report, it is hereby ORDERED that the following schedule shall govern the filing of dispositive motions in this case: Defendant shall file its motion for summary judgment by February 16, 2018. Plaintiff shall file its cross-motion for summary judgment and opposition to Defendant's motion by March 20, 2018. Defendant shall file its reply in support of its motion and its opposition to Plaintiff's motion by April 19, 2018. Plaintiff shall file its reply by May 3, 2018. Signed by Judge Timothy J. Kelly on 12/18/2017. (lctjk2) (Entered: 12/18/2017)
2018-02-16	12	MOTION for Summary Judgment by U.S. DEPARTMENT OF ENERGY (Attachments: # 1 Memorandum in Support, # 2 Declaration, # 3 Exhibit Exhibits to Declaration, # 4 Statement of Facts, # 5 Text of Proposed Order)(Roth, Dena) (Entered: 02/16/2018)
2018-03-20	13	Cross MOTION for Summary Judgment , Opposition to Defendant's Motion for Summary Judgement, and Statement of Material Facts by PROTECT DEMOCRACY PROJECT, INC. (Attachments: # 1 Declaration of Michael E. Stewart, # 2 Exhibits to Stewart Declaration, # 3 Text of Proposed Order)(Harrison, Lindsay) (Entered: 03/20/2018)
2018-03-20	14	Memorandum in opposition to re 12 MOTION for Summary Judgment filed by PROTECT DEMOCRACY PROJECT, INC.. (See Docket Entry 13 to view document). (znmw) (Entered: 03/21/2018)
2018-04-17	15	Unopposed MOTION for Extension of Time to File Response/Reply by U.S. DEPARTMENT OF ENERGY (Attachments: # 1 Text of Proposed Order)(Roth, Dena) (Entered: 04/17/2018)
2018-04-18		MINUTE ORDER granting Defendant's 15 Motion for Extension of Time. It is hereby ORDERED, for good cause shown, that Defendant's motion is GRANTED. Defendant shall file its reply in support of its motion for summary judgment and its opposition to Plaintiff's motion for summary judgment by May 31, 2018. Plaintiff shall file its reply by June 14, 2018. Signed by Judge Timothy J. Kelly on 4/18/2018. (lctjk2) (Entered: 04/18/2018)
2018-05-31	16	Memorandum in opposition to re 13 Cross MOTION for Summary Judgment , filed by U.S. DEPARTMENT OF ENERGY. (Attachments: # 1 Exhibit, # 2 Statement of Facts)(Roth, Dena) . (Entered: 05/31/2018)
2018-06-01	17	REPLY to opposition to motion re 12 MOTION for Summary Judgment filed by U.S. DEPARTMENT OF ENERGY. (Attachments: # 1 Exhibit, # 2 Statement of Facts Response to Plaintiff's Statement of Facts)(Roth, Dena) (Entered: 06/01/2018)
2018-06-13	18	NOTICE of Appearance by Michael E. Stewart on behalf of PROTECT DEMOCRACY PROJECT, INC. (Stewart, Michael) (Entered: 06/13/2018)
2018-06-14	19	REPLY to opposition to motion re 13 Cross MOTION for Summary Judgment , Opposition to Defendant's Motion for Summary Judgement, and Statement of Material Facts filed by PROTECT DEMOCRACY PROJECT, INC.. (Attachments: # 1 Supplemental Declaration of Michael E. Stewart, # 2 Exhibits to Supplemental Declaration of Michael E. Stewart)(Stewart, Michael) (Entered: 06/14/2018)
2018-09-17	20	MEMORANDUM OPINION AND ORDER granting in part and denying in part Defendant's 12 Motion for Summary Judgment, and granting in part and denying in part Plaintiff's 13 Cross-Motion for Summary Judgment. The parties shall promptly meet and confer regarding additional custodians and appropriate search terms for Defendant's search in response to Plaintiff's first request. Joint status reports due on October 17, 2018, and every thirty (30) days thereafter until Defendant has released all nonexempt, responsive material. Within thirty (30) days after Defendant has completed its final release, the parties shall meet, confer, and file a joint report as set forth in the Court's Order. See Opinion and Order for details. Signed by Judge Timothy J. Kelly on 9/17/2018. (lctjk2) (Entered: 09/17/2018)
2018-09-27	21	NOTICE of Change of Address by Dena Michal Roth (Roth, Dena) (Entered: 09/27/2018)
2018-10-17	22	Joint STATUS REPORT by U.S. DEPARTMENT OF ENERGY. (Attachments: # 1 Text of Proposed Order)(Roth, Dena) (Entered: 10/17/2018)
2018-11-16	23	Joint STATUS REPORT by U.S. DEPARTMENT OF ENERGY. (Attachments: # 1 Text of Proposed Order)(Roth, Dena) (Entered: 11/16/2018)
2018-12-17	24	Joint STATUS REPORT by U.S. DEPARTMENT OF ENERGY. (Attachments: # 1 Text of Proposed Order)(Roth, Dena) (Entered: 12/17/2018)
2019-01-14	25	MOTION to Stay by U.S. DEPARTMENT OF ENERGY (Attachments: # 1 Text of Proposed Order)(Roth, Dena) (Entered: 01/14/2019)
2019-01-14		MINUTE ORDER: It is hereby ORDERED that the deadline for the parties to submit their next joint status report is EXTENDED to February 18, 2019. Signed by Judge Timothy J. Kelly on 1/14/2019. (lctjk2) (Entered: 01/14/2019)
2019-01-15		Set/Reset Deadlines: Joint Status Report due by 2/18/2019. (kh) (Entered: 01/15/2019)
2019-01-29		MINUTE ORDER denying Defendant's 25 Motion to Stay. In light of the restoration of funding to the Department of Justice, it is hereby ORDERED that Defendant's motion is DENIED AS MOOT. Signed by Judge Timothy J. Kelly on 1/29/2019. (lctjk2) (Entered: 01/29/2019)
2019-02-11	26	Unopposed MOTION for Extension of Time to file Joint Status Report by U.S. DEPARTMENT OF ENERGY (Attachments: # 1 Text of Proposed Order)(Roth, Dena) (Entered: 02/11/2019)
2019-02-11		MINUTE ORDER granting Defendant's 26 Unopposed Motion for Extension of Time. It is hereby ORDERED, for good cause shown, that Defendant's motion is GRANTED. The deadline for the parties to submit their next joint status report is EXTENDED to February 22, 2019. Signed by Judge Timothy J. Kelly on 2/11/2019. (lctjk2) (Entered: 02/11/2019)
2019-02-22	27	Joint STATUS REPORT by U.S. DEPARTMENT OF ENERGY. (Attachments: # 1 Text of Proposed Order)(Roth, Dena) (Entered: 02/22/2019)
2019-02-22		MINUTE ORDER: In light of the parties' 27 Joint Status Report, it is hereby ORDERED that the parties shall file a further joint status report by March 25, 2019, updating the Court on the progress of their settlement negotiations. Signed by Judge Timothy J. Kelly on 2/22/2019. (lctjk2) (Entered: 02/22/2019)
2019-03-25	28	Joint STATUS REPORT by U.S. DEPARTMENT OF ENERGY. (Attachments: # 1 Text of Proposed Order)(Roth, Dena) (Entered: 03/25/2019)
2019-03-25		MINUTE ORDER: In light of the parties' 28 Joint Status Report, it is hereby ORDERED that the parties shall file a further joint status report by April 24, 2019, updating the Court on the progress of their settlement negotiations. Signed by Judge Timothy J. Kelly on 3/25/2019. (lctjk2) (Entered: 03/25/2019)
2019-04-24	29	Joint STATUS REPORT by U.S. DEPARTMENT OF ENERGY. (Attachments: # 1 Text of Proposed Order)(Roth, Dena) (Entered: 04/24/2019)
2019-04-24		MINUTE ORDER: In light of the parties' 29 Joint Status Report, it is hereby ORDERED that the parties shall file a further joint status report by May 28, 2019, updating the Court on the progress of their settlement negotiations. Signed by Judge Timothy J. Kelly on 4/24/2019. (lctjk2) (Entered: 04/24/2019)
2019-05-28	30	Joint STATUS REPORT by U.S. DEPARTMENT OF ENERGY. (Attachments: # 1 Text of Proposed Order)(Roth, Dena) (Entered: 05/28/2019)
2019-05-28		MINUTE ORDER: In light of the parties' 30 Joint Status Report, it is hereby ORDERED that the parties shall file a further joint status report by June 27, 2019, updating the Court on the progress of their settlement negotiations, unless a stipulation of dismissal is filed sooner. Signed by Judge Timothy J. Kelly on 5/28/2019. (lctjk2) (Entered: 05/28/2019)
2019-06-27	31	STIPULATION of Dismissal by PROTECT DEMOCRACY PROJECT, INC.. (Harrison, Lindsay) (Entered: 06/27/2019)
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