The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
AYYAKKANNU MANIVANNAN,
Plaintiff,
v. Civ. Action No. 1:17cv192
(Judge Kleeh)
DEPARTMENT OF ENERGY (National
Energy Technology Laboratory),
Defendant.
MEMORANDM OPINION AND ORDER ADDRESSING PARTIAL REMAND
[ECF NO. 97] AND GRANTING SUMMARY JUDGMENT [ECF NO. 61]
Pursuant to the United States Court of Appeals for the
Fourth Circuit’s January 12, 2021 unpublished per curiam opinion
[ECF No. 97], the Court addresses on remand Defendant’s Motion
for Summary Judgment as to Plaintiff Ayyakkannu Manivannan’s
Freedom of Information Act (“FOIA”) request Numbers 946 and 833.
As detailed below, the Defendant’s denial of FOIA request
Numbers 946 and 833 were proper under 5 U.S.C. § 552(b).
I. RELEVANT PROCEDURAL HISTORY
Plaintiff, Dr. Ayyakkannu Manivannan, is a former employee
of the Defendant, United States Department of Energy (“DOE”) at
the National Energy Technology Laboratory (“NETL”) in
Morgantown, West Virginia. Plaintiff was placed on
administrative leave on August 12, 2015, during an internal
investigation into allegations against him and was forbidden
from accessing NETL property or spaces. ECF No. 12 at 4. This
internal investigation revolved around allegations of an
improper relationship with an intern, harassment, and the
unlawful use of a computer that ultimately led to a criminal
case against Plaintiff in Pennsylvania state court.
Upon the onset of administrative leave, Plaintiff’s office
was secured under lock and key, and was controlled by the NETL
security personnel. Id. No one was permitted access to the area
without consultation with the NETL Office of Chief Counsel. Id.
Plaintiff resigned on June 16, 2016, which became effective on
June 17, 2016. Id. at 3.
In May 2017, Plaintiff submitted a FOIA request, requesting
“records showing Mark Hunzeker arranging a visit for Dr.
Manivannan with his supervisor to have him come to NETL to
collect his personal belongings from his office, as well as
other documents.” ECF No. 19-9 at 4. On May 5, 2017, Plaintiff
received a response that stated NETL conducted a search for
responsive records, and no responsive records were found. ECF
17-9 at 4. Plaintiff appealed this determination, challenging
the adequacy of the search conducted under FOIA. ECF 17-9 at 6.
On May 23, 2017, the Office of Hearings and Appeals (“OHA”)
responded, saying that DOE/NETL would withdraw its May 5, 2017,
determination, which formed the basis for the appeal and that
NETL would issue a new response letter after it conducted an
additional search. ECF No. 17-9 at 4. OHA thereby dismissed
Plaintiff’s FOIA Appeal as moot. OHA Case No. FIA -17-0012; Id.
Plaintiff filed a civil action in this Court on November 6,
2017, citing 5 U.S.C. § 552(a)(6)(C)(i) and alleging violations
of 18 U.S.C. §§ 21, 1701, and 1702 for NETL’s failure to
adequately respond to several requests for records pursuant to
FOIA. ECF No. 1. The district court granted summary judgment in
favor of NETL on September 30, 2019. ECF No. 88. Plaintiff
appealed to the United States Court of Appeals for the Fourth
Circuit. ECF No. 90. The Fourth Circuit vacated the district
court’s judgment in part, remanding the matter for further
determinations regarding FOIA request Numbers 946 and 833. ECF
No. 97.
II. FACTUAL BACKGROUND
Pursuant to the Fourth Circuit’s opinion, FOIA request
Numbers 946 and 833 must be addressed. ECF No. 97. The
circumstances necessitating remand are detailed below.
A. FOIA Request Number 946
The Fourth Circuit found that the district court erred in
finding that Plaintiff did not constructively exhaust his
administrative remedies with respect to request Number 946.
“FOIA provides that a requester may be treated as if []he
exhausted the administrative appeals process where the agency
did not provide a timely determination.” Khine v. United States
Dep’t of Homeland Sec., 943 F.3d 959, 966 (D.C. Cir. 2019); see
Coleman v. Drug Enf’t Admin., 714 F.3d 816, 820 (4th Cir. 2013)
(citing 5 U.S.C. § 552(a)(6)(C)(i)). However, the constructive
exhaustion provision only applies “so long as the agency has not
cured its violation by responding before the requester files
suit.” Coleman, 714 F.3d at 820; see also Pollack v. Dep’t of
Just., 49 F.3d 115, 118-19 (4th Cir. 1995). However, “[a]
request upon remand [from an administrative appeal] is still a
request” and “it, too must be acted upon within twenty working
days pursuant to 5 U.S.C. § 552(a)(6)(A)(i).” U, 714 F.3d at
824.
The Fourth Circuit found that request Number 946 was
constructively exhausted because the appropriate benchmark for
determining if NETL cured its failure to respond to request
Number 946 within 20 days before Plaintiff filed his initial
compliant. Since NETL did not respond within the 20 days,
Plaintiff had constructively exhausted his claim with respect to
request Number 946. Because request Number 946 was
constructively exhausted, the Court now must determine whether
the agency’s search was adequate and whether any exemptions were
applicable.
B. FOIA Request Number 833
The Fourth Circuit found the district court erred in
finding that NETL met its burden to show that it properly
redacted or withheld information pursuant to the statutory
exemption in 5 U.S.C.§ 552(b)(5).
Exemption 5 provides that FOIA disclosure rules do not
apply to “inter-agency or intra-agency memorandums or letters
which would not be available by law to a party other than an
agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). The
Fourth Circuit found that the district court lacked an adequate
factual basis to rule on the propriety of NETL’s redactions and
withholding of documents under this exemption pursuant to FOIA
request Number 833. The Court recommended applying Klamath to
determine whether the nature of the relationships bars the
exemption for inter-agency and intra-agency relationships. See 5
U.S.C. § 552(b)(5); Dep’t of the Interior v. Klamath Water Users
Protective Ass’n, 532 U.S. 1, 12 (2001).
III. LEGAL STANDARD
Summary judgment is appropriate “if there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(c). “A party
seeking summary judgment always bears the initial responsibility
of informing the district court of the basis for its motion, and
identifying those portions of ‘the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986).
The nonmoving party is required “to make a sufficient
showing on an essential element of her case with respect to
which he has the burden of proof.” Id. at 322. When a moving
party supports its motion under Rule 56 with affidavits and
other appropriate materials pursuant to the rule, the opposing
party “may not rest upon the mere allegations or denials of the
adverse party’s pleadings, but . . . the response . . . by
affidavits or as otherwise provided in this rule, must set forth
specific facts showing that there is a genuine issue for trial.”
Fed. R. Civ. P. 56(e). Summary judgment is proper “[w]here the
record taken as a whole could not lead a rational trier of fact
to find for the non-moving party, there [being] no genuine issue
for trial.” Matsushita Electric Industrial Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (quotation omitted).
On a motion for summary judgment, “the defending agency
must prove that each document that falls within the class
requested either has been produced, is unidentifiable, or is
wholly exempt from the Act's inspection requirements.” Goland v.
Central Intelligence Agency, 607 F.2d 339, 352 (D.C.Cir. 1978);
Students Against Genocide v. Department of State, 257 F.3d 828,
833 (D.C.Cir. 2001) (quoting Goland). “A defendant agency has
the burden of establishing the adequacy of its search and that
any identifiable document has either been produced or is subject
to withholding under an exemption.” Havemann v. Colvin, 629
Fed.Appx. 537, 539 (4th Cir. 2015)
The agency may meet its burden through the production of
affidavits describing the manner in which it undertook the
requested information search. See id. In order to invoke an
exception, however, the agency’s affidavits “must be relatively
detailed and nonconclusory.” Id. (citing Simmons v. United
States Dept. of Justice, 796 F.2d 709, 711–12 (4th Cir. 1986)).
The court may presume “the credibility of such affidavits, so
long as it has no reason to question the good faith of the
agency.” Id. (citing Bowers v. United States Dept. of Justice,
930 F.2d 350, 357 (4th Cir. 1991)). To overcome the presumption,
“a requestor must demonstrate a material issue by producing
evidence, through affidavits or other appropriate means,
contradicting the adequacy of the search or suggesting bad
faith.” Id. (citing Miller v. United States Dept. of State, 779
F.2d 1378, 1384 (8th Cir. 1985)).
Under FOIA, federal agencies “shall make [agency] records
promptly available to any person,” so long as the person’s
request “(i) reasonably describes such records and (ii) is made
in accordance with published rules stating the time, place, fees
(if any), and procedures to be followed . . . .” 5 U.S.C. §
552(a)(3)(A). Courts have long held that “FOIA reflects a
general philosophy of full agency disclosure unless information
is exempted under clearly delineated statutory language.” Id.
(quoting Dept. of Defense v. FLRA, 510 U.S. 487, 494 (1994)).
Notably, the FOIA does not require an agency to create or retain
any document; rather, it only “‘obligates them to provide access
to those which it in fact has created and retained.’” Turner v.
U.S., 736 F.3d 274, 283 (4th Cir. 2013) (quoting Kissinger v.
Reporters Comm. for Freedom of the Press, 445 U.S. 136, 152
(1980)).
There are, however, certain enumerated exemptions from the
FOIA’s mandate to disclose. See 5 U.S.C. § 552(b)(1)-(9); New
Hampshire Right to Life v. Dep’t of Health and Human Svcs., 13
S. Ct. 383 (2015). The Court must decide as a matter of law
whether a document falls within one of the exemptions. Wickwire
Gavin, P.C. v. U.S. Postal Service, 356 F.3d 588, 591 (4th Cir.
2004). In addition, courts must construe the FOIA’s exemptions
narrowly and place the burden on the agency to show that its
exemptions are proper. Id. (citing 5 U.S.C. § 552(a)(4)(B); J.P.
Stevens Co. v. Perry, 710 F.2d 136, 139 (4th Cir. 1983)).
IV. FOIA Exemptions (5 U.S.C. § 552(b)(1)-(9))
FOIA allows plaintiffs such as Dr. Manivannan to request
access to federal agency records or information. However,
exemptions to such requests include those:
(1) (A) specifically authorized under criteria
established by an Executive order to be kept
secret in the interest of national defense
or foreign policy and (B) are in fact
properly classified pursuant to such
Executive order;
(2) related solely to the internal personnel
rules and practices of an agency;
(3) specifically exempted from disclosure by
statute (other than section 552b of this
title), if that statute—
(A)(i) requires that the matters be withheld
from the public in such a manner as to leave
no discretion on the issue; or(ii)
establishes particular criteria for
withholding or refers to particular types of
matters to be withheld; and (B) if enacted
after the date of enactment of the OPEN FOIA
Act of 2009, specifically cites to this
paragraph.
(4) trade secrets and commercial or financial
information obtained from a person and
privileged or confidential;
(5) inter-agency or intra-agency memorandums or
letters that would not be available by law
to a party other than an agency in
litigation with the agency, provided that
the deliberative process privilege shall not
apply to records created 25 years or more
before the date on which the records were
requested;
(6) personnel and medical files and similar
files the disclosure of which would
constitute a clearly unwarranted invasion of
personal privacy;
(7) records or information compiled for law
enforcement purposes, but only to the extent
that the production of such law enforcement
records or information (A) could reasonably
be expected to interfere with enforcement
proceedings, (B) would deprive a person of a
right to a fair trial or an impartial
adjudication, (C) could reasonably be
expected to constitute an unwarranted
invasion of personal privacy, (D) could
reasonably be expected to disclose the
identity of a confidential source, including
a State, local, or foreign agency or
authority or any private institution which
furnished information on a confidential
basis, and, in the case of a record or
information compiled by criminal law
enforcement authority in the course of a
criminal investigation or by an agency
conducting a lawful national security
intelligence investigation, information
furnished by a confidential source, (E)
would disclose techniques and procedures for
law enforcement investigations or
prosecutions, or would disclose guidelines
for law enforcement investigations or
prosecutions if such disclosure could
reasonably be expected to risk circumvention
of the law, or (F) could reasonably be
expected to endanger the life or physical
safety of any individual;
(8) contained in or related to examination,
operating, or condition reports prepared by,
on behalf of, or for the use of an agency
responsible for the regulation or
supervision of financial institutions; or
(9) geological and geophysical information and
data, including maps, concerning wells.
5 U.S.C. § 552(b).
V. DISCUSSION
For the reasons that follow, summary judgment is proper on
the remaining claims under FOIA request Number 946 and 833.
A. FOIA Request Number 946
FOIA request Number 946 includes a variety of documents
pertaining to Plaintiff’s personal belongings and project
credits. ECF No. 50, pp. 3-5. These records include:
1. Records showing Hunzeker arranging a visit
for Plaintiff with his supervisor to have
him come to NETL to collect his personal
belongings from his office.
2. All paperwork and records related to any
official delivery of his personal
belongings.
3. Records of Plaintiff’s personal items
(itemized list) that Mark Hunzeker
delivered officially with official
signatures and Dr. Manivannan's acceptance
signature for the property.
4. Records on all the people who had access
to his office since the beginning of his
administrative leave from 2015 and until
now.
5. Justification records denying his visit to
come to NETL to collect his personal
belongings.
6. Records about Hunzeker's notes on how he
handled the situation whether to permit
Plaintiff to visit the NETL site to
collect his office personal belongings.
7. Records related to all information
regarding the Raman project and the
documents left in his office.
8. Justification records by management (Randy
Gemmen) for denying him to work on the
project while it was allowed for others to
adopt this idea to carry out this research
project without crediting him.
9. Records stating specific reasons for
keeping Plaintiff on administrative leave
during that time by Randy Gemmen. Randy
Gemmen's justification records for not
crediting him for work during the NETL
investigation.
10. Records indicating whether Plaintiff has
been credited for this work as of now.
11. Records on the name of the person hired
to execute this project and all
researchers' names involved in this
project.
12. Plaintiff’s archived e-mail records and
communications from NETL
13. Plaintiff’s e-mail records and
communications with Randy Gemmen.
14. Records related to the actions taken (all
e-mails, phone conversations, discussions,
etc.) by Randy Gemmen through his
supervisor Larry Shadle in 2015 to stop
this research project, including the
removal of a summer student Amy Falcon.
Specific e-mails directing Larry Shadle to
take punitive action on Plaintiff and
asking him to deviate/direct Plaintiff to
write a review article on thermal barrier
coatings.
ECF No. 50, pp. 3-5.
Here, the agency’s search was adequate, as detailed in Ann
C. Guy’s declaration [ECF No. 62-1], whereby Plaintiff was sent
689 pages with no redactions. ECF No. 62-1. In Plaintiff’s
Amended Complaint [ECF No. 50], Plaintiff identifies four
concerns regarding the response to his FOIA request Number 946.
ECF No. 50, at 5. These concerns were:
A. The Agency failed to provide Documentation
for points 1-6 and, in particular,
withheld the itemized list of personal
belongings and the required records of
official delivery.
B. The Agency failed to provide documentation
supporting Agency's declaration to
Congress persons that Plaintiff’s personal
belongings were returned.
C. The Agency failed to provide documentation
to justify exclusion of Plaintiff's credit
for the Raman project.
D. The Agency was requested to deliver all
the published work related to Raman
Project initiated by Dr. Manivannan.
ECF No. 50; ECF No. 62-1, at 23-24. In essence, Plaintiff’s
Amended Complaint focused on concerns regarding primarily
Paragraphs 3, 8, and 11 of FOIA request Number 946.
In the Declaration of Ann Guy, NETL’s FOIA Officer, these
omissions are explained as follows:
A. After a thorough search of agency records
for an “itemized list of personal
belongings and the required records of
official delivery”, no such documents were
discovered. However, two affidavits from
co-workers of the Plaintiff regarding the
return of his property and photos taken of
his office were provided to Plaintiff
along with emails, communications, and
security logs of personnel
entering/leaving Plaintiff’s office while
he was on administrative leave.
B. The request for “documentation supporting
Agency's declaration to Congress persons
that my personal belongings were
returned," was never made or submitted by
the Plaintiff, and Ann Guy declared that
she is unaware of said declaration.
C. Emails and communications between
supervisors and the authors/contributors
of the publication were provided to the
Plaintiff (55 pages) indicating that Dr.
Manivannan did not contribute to the Raman
project or the publication. Also,
Plaintiff identifies the “names of the
people running this project". This
information was released in detail as a
portion of the Agency File in a separate
action filed by the Plaintiff with the
Merit Systems Protection Board (MSPB)using
another venue to ask for the same
information.
D. The request for "all the published work
related to the Raman Project initiated by
Dr, Manivannan" remains the Government's
property.
Additionally, FOIA request Number 946 largely falls within
the exception articulated in 5 U.S.C. § 552(b)(5), whereby
disclosure of “inter-agency or intra-agency memorandums or
letters that would not be available by law to a party other than
an agency in litigation with the agency,” is not required. 5
U.S.C. § 552(b)(5). Within FOIA request Number 946, Paragraphs
1, 2, 3, 4, 8, 9, and 14 fall within the exception for inter-
agency and intra-agency memoranda or letters that are protected
by legal privileges. See 5 U.S.C. § 552(b)(5).
U.S.C. § 552(b)(2) additionally protects reports “related
solely to the internal personnel rules and practices of an
agency” from being required to be disclosed. 5 U.S.C. §
552(b)(2). Within FOIA request Number 946, Paragraph 5 falls
under the exception for reports related solely to internal
personnel rules and practices. See 5 U.S.C. § 552(b)(2).
Lastly, 5 U.S.C. § 552(b)(6) protects “personnel and
medical files and similar files the disclosure of which would
constitute a clearly unwarranted invasion of personal privacy,”
from disclosure. 5 U.S.C. § 552(b)(6). Within FOIA request
Number 946, Paragraphs 6, 7, 10, 11, 12, 13, and 14 fall within
the exception for personnel files. See 5 U.S.C. § 552(b)(6).
Therefore, such personal intra-agency emails, notes of
supervisors, and justification discussions are not subject to
disclosure, despite Plaintiff’s FOIA request. Accordingly,
summary judgment is proper as to Plaintiff’s claims regarding
FOIA request Number 946.
B. FOIA Request Number 833
FOIA request Number 832 includes a variety of records
pertaining to his proposed removal from his job. ECF No. 50, pp.
5-8. These records include:
1. Records pertaining to all the itemized
expenses made using taxpayer funds by the
government for his investigation.
2. All the personal information of his office
files documents provided to PSU police and
the Centre County (Pennsylvania) DA.
3. Justification document information how NETL
circumvented the government EEO procedures
in this particular investigation.
4. Release of the actual formal complaint made
to DOE by the outside entities (Ms. Faith
Beck, Penn State Police and Centre County
DA) regarding his alleged conduct, misuse of
power, failure to follow procedures, lack of
candor, etc.
5. Justification document or decision document
by the management for his internal
investigation initiated by Randy Gemmen.
6. All e-mail communications of Randy Gemmen
with management, Plaintiff, and Larry Shadle
during the time of investigation.
7. The e-mail communications of Randy Gemmen
with Plaintiff forcing him to attend the
internal investigation without legal
counsel.
8. All e-mail communications of Randy Gemmen
with Larry Shadle to take punitive action
against Plaintiff before the investigation.
9. All the correspondent documents and the
involvement by Randy Gemmen, MaryAnn Alvin,
and Nancy Vargas, and the Office of General
Counsel justification document to contact
Carmen Borges of Penn State University.
10. All the documents related to Randy Gemmen
and Mary Ann Alvin's justification to
initiate the investigation without following
the government EEO procedures.
11. All the correspondent documents and
conversations made by Carmen Borges of Penn
State University with NETL.
12. The formal complaint by Carmen Borges of
Penn State University and the correspondence
with Nancy Vargas.
13. All communication documents with Centre
County officials.
14. The video audio tape records pertaining to
the investigation made with him and all
other employees inside NETL and all outside
students and faculty members.
15. The management discussion and decision why
the report prepared by Marisa Williams was
delayed for 4 months from January 2015 to
April 2015. Plaintiff seeks release of the
information and justification why NETL did
not fire him since January 2015 until he
resigned.
16. Release of the information why management
did not acknowledge or respond to his
refutation package for the "proposal for
removal" notice given to him by NETL.
17. The justification document for entering the
unconfirmed accusations in his SF-50 form.
18. Release of the information regarding the
identity of the person who prepared the
"Notice of proposed removal."
19. All the evidence claiming that he abused a
student for few years.
20. All information regarding the analysis of
his office computers and laptop computers
and the document providing that IP log
information to the Centre County DA and Penn
State police.
21. The copy of his personal passport size photo
(taken during his internal investigation)
given to the Centre County, DA for the Penn
State news release.
ECF No. 50, pp. 5-8.
Exemption 5 provides that FOIA disclosure rules do not
apply to “inter-agency or intra-agency memorandums or letters
which would not be available by law to a party other than an
agency in litigation with the agency.” 5 U.S.C. § 552(b)(5).
This exemption applies to materials that fall under, as relevant
here, the attorney-client privilege, the attorney work product
doctrine, and the deliberative process privilege. See Hall &
Assocs. v. Env’t Prot. Agency, 956 F.3d 621, 624 (D.C. Cir.
2020); Hanson v. U.S. Agency for Int’l Dev., 372 F.3d 286, 290–
91 (4th Cir. 2004). The exempted records must be inter-agency or
intra-agency documents. See 5 U.S.C. § 552(b)(5); Dep’t of the
Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 12
(2001). “[T]hese limited exemptions do not obscure the basic
policy that disclosure, not secrecy, is the dominant objective
of the Act.” Department of Air Force v. Rose, 425 U.S. 352, 361
(1976).
According to Klamath, “[t]o qualify, a document must thus
satisfy two conditions: its source must be a Government agency,
and it must fall within the ambit of a privilege against
discovery under judicial standards that would govern litigation
against the agency that holds it.” Klamath, 532 U.S. at 8. This
includes deliberative process documentation, which covers
“documents reflecting advisory opinions, recommendations and
deliberations comprising part of a process by which governmental
decisions and policies are formulated.” Id. (citing NLRB v.
Sears, Roebuck & Co., 421 U.S. 132, 150 (1975)).
Here, the Fourth Circuit found that the district court
lacked an adequate factual basis to rule on the adequacy NETL’s
redactions and withholding of documents under this exemption as
to request Number 833. Specifically, the Fourth Circuit noted
that some of the responsive documents appeared to have been sent
to employees of Penn State University or attorneys in the
district attorney’s office that oversaw Plaintiff’s prosecution
in Pennsylvania. As a threshold matter then, this Court must
first determine whether the records were “inter-agency or intra-
agency” before deciding whether NETL stated a good faith basis
for applying the exemption. 5 U.S.C. § 552(b)(5). It is true
that the communications between NETL with Penn State University
and attorneys in the district attorney’s office are neither
inter-agency, nor intra-agency communications, and therefore
fall outside of the scope of Exemption 5. However, as detailed
below, these communications fall within other FOIA exemptions
because they were compiled for law enforcement purposes.
In Plaintiff’s Amended Complaint, he stated his concerns
regarding FOIA request Number 833 as:
A. Not including justification documents for
(1) an accusatory investigation report
devoid of evidence to support it; (2) an
unfounded personal action “Notice of
Proposed Removal (NPR); (3) unsupported
accusations in employee’s SF-50 form; and
(4) two amendments to SF-50 Forms.
B. Document accusations for the accusations
in Paragraph 19.
C. Video records requested in Paragraph 14.
D. Paragraphs 12 and 17 being withheld under
exemptions 5 and 6.
ECF No. 50, at 8-9; ECF No. 62-1, at 24.
Here, the agency’s search was adequate, as detailed in Ann
C. Guy’s declaration [ECF No. 62-1], whereby Plaintiff was sent
several of his requests. ECF No. 62-1. However, several of the
requests were speculative or did not actually exist within the
agency (Paragraphs 3 and 10), and were thereby not included in
the request.
FOIA request Number 833 largely falls within the exceptions
articulated in 5 U.S.C. §§ 552(b), whereby disclosure of inter
and intra-agency records, “records or information compiled for
law enforcement purposes ...”, records compiled for law
enforcement purposes, or private personnel files are not
required despite request. 5 U.S.C. §§ 552(b). The response to
FOIA request Number 833 was properly redacted because many of
the requested documents did not exist (Paragraphs 3 and 10),
involved protected inter or intra agency communications
(Paragraphs 5, 15, 16, and 17), were compiled for law
enforcement purposes (2, 12, 14, 19, and 20), or involved
private personnel files (Paragraphs 6, 7, 8, 9, 11, and 18).
Thus, summary judgment is proper as to Plaintiff’s claims
regarding the denial of FOIA request Number 833.
VI. CONCLUSION
In conclusion, the agency’s search was adequate, as
detailed in Ann C. Guy’s declaration [ECF No. 62-1] and FOIA
request Number 946 was properly denied under 5 U.S.C. § 552(b).
Additionally, the remaining mnondisclosed portions of FOIA
request Number 833 was properly denied under 5 U.S.C. § □□□□
Thus, Defendant’s Motion for Summary Judgment as it pertains to
FOIA request Numbers 946 and 833 [ECF No. 61] is GRANTED.
Plaintiff’s Complaint [ECF No. 1] is DISMISSED WITH PREJUDICE.
This action is thus STRICKEN from the Court’s active docket
and the Clerk is DIRECTED to enter judgment in favor of
Department of Energy (National Energy Technology Laboratory)
It is so ORDERED.
The Clerk is directed to transmit copies of this Memorandum
Opinion and Order to counsel of record by the CM/ECF system and
to any unrepresented parties by certified mail return receipt
requested.
DATED: February 21, 2025
Tom 8 Klas
THOMAS S. KLEEH, CHIEF JUDGE
NORTHERN DISTRICT OF WEST VIRGINIA
21