Opinion

Manivannan v. Bochenek

Court
District Court, N.D. West Virginia
Filed
Feb 21, 2025
Cited by
0 cases
Authority
More cited than 34.1%

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Fourth Circuit’s January 12, 2021 unpublished per curiam opinion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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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