                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

_________________________________________
                                          )
CLIMATE INVESTIGATIONS CENTER,            )
                                          )
      Plaintiff,                          )
                                          )
              v.                          )               Case No. 16-cv-124 (APM)
                                          )
UNITED STATES DEPARTMENT                  )
OF ENERGY,                                )
                                          )
      Defendant.                          )
_________________________________________ )

                          MEMORANDUM OPINION AND ORDER

       Plaintiff Climate Investigations Center requested information from Defendant Department

of Energy under the Freedom of Information Act (“FOIA”) concerning the funding and

development of the “Kemper Project,” a power plant in Mississippi that uses “clean coal”

technology. Defendant provided Southern Company, a private developer, with federal funding to

construct the power plant and implement the new technology. Before the court are the parties’

cross-motions for summary judgment, in which the parties dispute the adequacy of the search

performed and the appropriateness of Defendant’s decision to withhold certain materials

responsive to Plaintiff’s request.

       After thorough review of the record and the parties’ briefs, the court concludes that

summary judgment is not warranted because there remain material issues of fact concerning the

adequacy of Defendant’s search and the appropriateness of its withholdings pursuant to FOIA

Exemptions 4 and 5. The dispute concerning Exemption 6, however, is moot, because the

withheld material is publicly available. Accordingly, the court denies both motions for summary

judgment.
I.     BACKGROUND

       In the early part of 2015, Dan Zegart, a senior investigator for Plaintiff Climate

Investigations Center, submitted a request to Defendant Department of Energy for information

regarding the funding, construction, and implementation of “clean coal” technology over a

fourteen-year period at a particular power plant in Mississippi—an initiative known as the

“Kemper Project.” See Pl.’s Cross-Mot. for Partial Summ. J., ECF No. 15 [hereinafter Pl.’s

Cross-Mot.], Attach. 2, ECF No. 15-2 [hereafter Zegart Decl.], ¶ 1; Pl.’s Cross-Mot., Attach. 3,

ECF No. 15-3 [hereinafter Pls.’ Exs. A–L], at 1–7 (Exs. A & B). The Kemper Project is overseen,

in part, by Defendant’s subcomponent, National Energy Technology Laboratory (“NETL”), and

being developed, in part, by Southern Company and Mississippi Power Company, a wholly owned

subsidiary of Southern Company. See Def.’s Mot. for Summ. J., ECF No. 13 [hereinafter Def.’s

Mot.], Attach. 1, ECF No. 13-1, ¶¶ 2, 5; Pl.’s Cross-Mot., Attach. 5, ECF No. 15-5, ¶¶ 2, 5.

Defendant awarded Southern Company nearly $300 million to carry out work on the Kemper

Project.   Am. Compl., ECF No. 3 [hereinafter Am. Compl.], ¶¶ 16–17; Def.’s Answer,

ECF No. 6, ¶¶ 16–17. Plaintiff’s FOIA Request sought any and all communications relating to

the “development, funding and/or construction and implementation of ‘clean coal’ technology” at

the Kemper Project, including details concerning the technology developed for the plant and the

decision to build it in Kemper County, Mississippi. See Pls.’ Exs. A–L at 1–7 (Exs. A & B).

       Plaintiff submitted its request directly to NETL, which began the search for responsive

documents. See id.; Def.’s Mot., Attach. 3, ECF No. 13-3, at 1–16 [hereinafter Dunlap Decl.],

¶ 7. NETL’s FOIA Officer, Ann C. Dunlap, determined that NETL’s Gasification Technology

Manager and Major Demonstrations Project Office were the places most likely to have responsive

documents. Dunlap Decl. ¶¶ 1, 8–9, 14–15.

                                               2
           On June 30, 2015, Plaintiff clarified that it sought six categories of documents. 1 Generally

speaking, Plaintiff sought documents and records of communications from the period of January

1, 1998, to December 31, 2011, concerning (1) contacts or meetings between NETL and Southern

Company, or entities related to Southern Company, about clean coal technology; (2) the research

and development of clean coal technology at an NETL research facility in Wilsonville, Alabama;

(3) the decision to move the Kemper Project site from Florida to Mississippi; and (4) any

connections between the Kemper Project and a lobbying firm called the BGR Group. See Def.’s

Mot., Attach. 4, ECF No. 13-4 [hereinafter Def.’s Mot., Attach. 4], at 13–17 (Ex. B).

           Early in its search, in August 2015, NETL contacted Defendant’s Headquarters (“DOE

Headquarters”) on the belief that DOE Headquarters had materials responsive to certain categories

of documents in Plaintiff’s request. See Def.’s Mot., Attach. 4, at 1–9 [hereinafter Morris Decl.],

¶ 10. DOE Headquarters, in turn, determined the Office of Fossil Energy was the agency

subcomponent most likely to have records responsive to Plaintiff’s request and directed that office

to conduct a search for those materials. See id. ¶¶ 12, 14. Staff at the Office of Fossil Energy

both manually and electronically searched their files, collected all responsive materials therein,

and submitted them to the Office of Information Resources (“OIR”) for review. Id. ¶¶ 18–19.

OIR, in turn, reviewed the materials submitted, removed duplicate documents NETL already

provided to Plaintiff, consulted with Southern Company to determine which portions of the

documents could cause the company harm if disclosed, and redacted those portions of the

responsive documents OIR believed were exempt from disclosure. Id. ¶¶ 20–22; Def.’s Opp’n to

Pl.’s Cross-Mot. for Summ. J., ECF No. 18 [hereinafter Def.’s Opp’n], Attach. 3, ECF No. 18-3,




1
    The full text of Plaintiff’s clarified request is set forth in an Appendix to this Memorandum Opinion and Order.
                                                            3
at 1–3 [hereinafter Suppl. Morris Decl.], ¶¶ 7–10. In total, the Office of Fossil Energy released

75 records with some redactions. Morris Decl. ¶ 23.

       NETL began producing responsive materials shortly after receiving the clarified FOIA

Request. Between July 7, 2015, and September 28, 2016, NETL sent Plaintiff at least six different

sets of materials, though certain productions only came about after Plaintiff successfully

administratively appealed the agency’s invocation of particular FOIA exemptions from disclosure.

See Dunlap Decl. ¶¶ 17–19, 21, 23–25, 27–32, 37–40.           In making its productions, NETL

consulted with DOE Headquarters regarding materials that pertained to the Office of the Secretary.

See id. ¶ 32.    Additionally, because NETL’s search identified documents that potentially

implicated Southern Company’s business interests, NETL consulted with Southern Company to

evaluate how disclosure of certain responsive materials might harm the company. Id. ¶¶ 23, 41.

Southern Company supplied the agency with its stance on the records’ disclosure, but the agency

independently determined whether withholding the document in full, in part, or not at all, was

appropriate. See Def.’s Opp’n, Attach. 2, ECF No. 18-2, at 1–3 [hereinafter Suppl. Dunlap Decl.],

¶¶ 7–10. In total, NETL released several thousand pages of documents, many with redactions, to

Plaintiff. See Dunlap Decl. ¶¶ 17, 19, 21, 23, 27, 32, 37–40 (describing multiple productions

totaling more than six thousand pages).

       Dissatisfied with the productions and redactions, Plaintiff filed suit in this court.

See Compl., ECF No. 1 (filed Jan. 26, 2016).         Plaintiff’s Amended Complaint challenges

Defendant’s search as inadequate and its redactions as unsupported by any exemption. See Am.

Compl. ¶¶ 36–52. The parties submitted cross-motions for summary judgment that are now ripe

for review. Defendant moves for summary judgment as to the adequacy of its search and all its

withholdings under Exemptions 4, 5, and 6. See Def.’s Mot. Plaintiff seeks summary judgment

                                                4
on all issues except Defendant’s reliance on Exemption 4, as to which Plaintiff believes material

issues of fact remain. See Pl.’s Cross-Mot.

II.    LEGAL STANDARD

       On a motion for summary judgment, a court must enter judgment in favor of the moving

party if that party “shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute is “genuine” only if a

reasonable fact-finder could find for the nonmoving party, and a fact is “material” only if it is

capable of affecting the outcome of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). The court must view all the evidence in the light most favorable to the nonmoving

party. See id. As a general matter, “[i]n FOIA cases, an agency defendant may be entitled to

summary judgment if it can demonstrate that (1) no material facts are in dispute, (2) it has

conducted an adequate search for responsive records, and (3) each responsive record that it has

located has either been produced to the plaintiff, is unidentifiable, or is wholly exempt from

disclosure.” Mattachine Society of Wash., D.C. v. U.S. Dep’t of Justice, No. 16-773, 2017 WL

3251552, at *2 (D.D.C. July 28, 2017).

       An agency performs an “adequate search” and may be awarded summary judgment when

it performs a search “reasonably calculated to uncover all relevant documents.” Oglesby v. U.S.

Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). The agency bears the burden of proving that

it performed an adequate search, and it may rely on sworn affidavits or declarations to make that

showing. See SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991). The court

may grant summary judgment to the agency based on those materials if they are reasonably specific

and contradicted by neither other record evidence nor evidence of agency bad faith. See Military

Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); Beltranena v. Clinton, 770 F. Supp.

                                                 5
2d 175, 181–82 (D.D.C. 2011). FOIA plaintiffs can rebut an agency’s declarations and affidavits

by demonstrating, with “specific facts,” that there remains a genuine issue as to whether the agency

performed an adequate search for documents responsive to the plaintiff’s request. See Span v.

U.S. Dep’t of Justice, 696 F. Supp. 2d 113, 119 (D.D.C. 2010) (internal quotation marks omitted).

The court will not grant summary judgment if “review of the record raises substantial doubt [as to

the adequacy of the search], particularly in view of well defined requests and positive indications

of overlooked materials.” Aguiar v. DEA, 865 F.3d 730, 738 (D.C. Cir. 2017) (internal quotation

marks omitted).

       The agency also bears the burden of proving that it properly withheld certain materials

responsive to a plaintiff’s FOIA request pursuant to an exemption from disclosure. Citizens for

Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, 746 F.3d 1082, 1088 (D.D.C. 2014).

Once more, the agency may rely on affidavits and declarations to make this showing. “If the

agency’s affidavits ‘provide specific information sufficient to place the documents within the

exemption category, if this information is not contradicted in the record, and if there is no evidence

in the record of agency bad faith, then summary judgment is appropriate without in camera review

of the documents.’” Am. Civil Liberties Union v. U.S. Dep’t of Def., 628 F.3d 612, 626 (D.C. Cir.

2011) (quoting Larson v. U.S. Dep’t of State, 565 F.3d 857, 870 (D.C. Cir. 2009)).

III.   DISCUSSION

       Plaintiff challenges Defendant’s response to its FOIA Request on two grounds: (1) the

search Defendant performed was inadequate; and (2) Defendant improperly relied on Exemptions

4, 5, and 6 to withhold responsive documents. The court addresses each contention in turn.




                                                  6
       A.      Adequacy of the Search

       Plaintiff claims that Defendant’s search was inadequate because Defendant did not

separately search the Office of the Secretary or use proper search terms when searching the Office

of Fossil Energy.    Specifically, Plaintiff argues that Defendant should have conducted a

standalone search of the Office of the Secretary because the materials Defendant produced

included documents and correspondence originating from that Office, which indicates additional

responsive records could be found there.      See Pl.’s Cross-Mot., Attach. 1, ECF No. 15-1

[hereinafter Pl.’s Mem.], at 26–27. Additionally, Plaintiff submits that Defendant needed to use

“the names of Southern Company officers involved in the deal with DOE, email domains from

Southern Company or Mississippi Power, or even the name of the plant” as search terms when

locating responsive material within the Office of Fossil Energy. Id.

       Defendant submits that FOIA did not require it to search the Office of the Secretary or

employ other search terms when searching the Office of Fossil Energy. Regarding a search of the

Office of the Secretary, Defendant cites the declarations of Alexander Morris, the FOIA Officer at

DOE Headquarters, and Ann Dunlap, the FOIA Officer at NETL, to support its position that a

separate search was unnecessary because it would be duplicative of prior searches. Specifically,

Defendant explains, the declarations show that the “the Office of Fossil Energy at DOE HQ

searched for executive correspondence within the Office of the Executive Secretariat, which would

have captured any and all communications involving the Office of the Secretary regarding the

Kemper project,” and “NETL too conducted a search that captured communications with the

Office of the Secretary.” Def.’s Opp’n at 13. Regarding the adequacy of the search terms used

to search the Office of Fossil Energy, Defendant cites Mr. Morris’ declaration and notes that the




                                                7
Office of Fossil Energy did search for “Kemper,” the name of the plant, as well as all the other

search terms Plaintiff requested. Id. at 14–15.

       The court first concludes that Defendant was not obligated to use additional or alternative

search terms when searching the Office of Fossil Energy. As a general matter, a plaintiff cannot

dictate the search terms an agency must use to identify responsive records, and when an agency’s

search terms are “reasonably calculated to lead to responsive documents, a court should neither

‘micromanage’ nor second guess the agency’s search.” Bigwood v. U.S. Dep’t of Defense,

132 F. Supp. 3d 124, 140 (D.D.C. 2015). Here, Defendant directed the Office of Fossil Energy

to search for materials responsive to the fifth and sixth categories of documents in Plaintiff’s

clarified FOIA Request—documents pertaining to the decision to build the plant in Kemper

County and communications with the BGR Group, including Haley Barbour, Ed Rogers, Lanny

Griffith, and Bob Wood, regarding the Kemper Project. See Def.’s Mot., Attach. 4, at 13–17 (Ex.

B). Defendant has submitted a declaration explaining that staff at the Office of Fossil Energy

“conducted an automated search of their e-mail accounts” by searching for “‘Kemper’; ‘Kemper

and Relocate’; [‘]BGR’; ‘Barbour’; ‘Rogers’; ‘Griffith’; and ‘Wood’” and “an automated search

of the executive correspondence records” by searching for “‘@bgrdc.com’; ‘BGR’; ‘Kemper’; and

‘Mississippi.’” Morris Decl. ¶ 18. That declaration, in specific and clear terms, establishes that

Defendant employed appropriate search terms. It reflects that Defendant selected search terms

reasonably calculated to capture records responsive to Plaintiff’s FOIA Request by searching for

(1) the name of the power plant, (2) the name of the power plant in conjunction with its site

relocation, (3) the name of the consulting group that purportedly met with government officials

concerning the plant’s relocation, and (4) the individual names of four members of the consulting




                                                  8
group. In proffering that declaration, Defendant has met its burden; second-guessing what other

terms the agency could have used would be inappropriate. See Bigwood, 132 F. Supp. 3d at 140.

       It remains unclear, however, whether Defendant was required to search the Office of the

Secretary in order to perform an adequate search. First, the declarations Defendant submitted do

not support its contention that performing a separate search of the Office of the Secretary would

be duplicative of its prior searches. Although Defendant cites Mr. Morris’ declaration to support

its statement that the Office of Fossil Energy searched the Office of the Executive Secretariat

(which would have reached responsive records in the Office of the Secretary), Mr. Morris’

declaration itself references neither the Office of the Executive Secretariat nor the Office of the

Secretary.   See Def.’s Opp’n at 13 (citing Morris Decl. ¶ 18).         And, while Ms. Dunlap’s

declaration mentions that Defendant produced documents prepared for the Secretary of Energy, it

does not reference an “Office of the Executive Secretariat,” let alone explain how searching that

office would produce documents contained in the Office of the Secretary. See Dunlap Decl. ¶ 32

(cited in Def.’s Opp’n at 13).     Indeed, Ms. Dunlap’s declaration indicates that responsive

materials involving the Office of the Secretary exist, which means additional responsive records

could exist, as well. See id. (explaining that NETL produced documents “involv[ing] the Office

of the Secretary”). Thus, after locating responsive records involving the Office of the Secretary,

Defendant needed either to search that Office or explain in a detailed affidavit or declaration why

such a search would have been fruitless or redundant. Cf. Aguiar, 865 F.3d at 738–39 (explaining

that, for summary judgment to be appropriate, an agency’s affidavit must describe not only the

search the agency undertook, but also why the only reasonable place to look for responsive

materials was the place searched); Coleman v. DEA, 134 F. Supp. 3d 294, 301 (D.D.C. 2015)

(explaining that an agency is not free to ignore “clear leads that may indicate other offices that

                                                9
should have been searched” (alterations adopted) (internal quotation marks omitted)). Defendant

did not do either. Accordingly, there remains a material issue of fact as to whether Defendant

performed an adequate search without separately searching the Office of the Secretary.

       Given that a material issue of fact remains as to the adequacy of Defendant’s search, an

entry of summary judgment is not warranted for either party. The court will permit Defendant to

supplement the record and renew its motion on this issue. When doing so, Defendant either can

conduct a search of the Office of Secretary for responsive material or submit facts explaining

(1) the organizational and record-keeping relationships, if any, among the Office of the Executive

Secretariat, Office of the Secretary, NETL, and Office of Fossil Energy; and (2) why NETL’s and

the Office of Fossil Energy’s searches would have reached all responsive records maintained by

the Office of the Secretary, such that a separate search is unnecessary.

       B.      Exemption 4

       Next, Plaintiff argues that Defendant inappropriately relied on FOIA Exemption 4 to

withhold information about the breakdown of costs associated with construction of the power plant

and related materials. Specifically, Plaintiff disputes Defendant’s decision to redact portions of

the “Cooperative Agreement Amendments”; “Cooperative Agreement Modifications and

Amendments”; “Site Change Plan, emails and correspondence Negotiation Memorandum,

Repayment Agreement, and Selection Statement”; “Southern Company’s Application, Project

Narrative, Host Site Agreement, Letters of Commitment, Partners and subcontracts’ names and

information”; “Southern Company’s application, repayment plan, selection statement,

modifications to cooperative agreement”; and “Exhibits on cost participation and project

analyses.” See Pl.’s Mem. at 15; Def.’s Mot., Attach. 5, ECF No. 13-5 [hereinafter NETL Vaughn

Index], at 1–4, 6, 8; Def.’s Mot., Attach. 6, ECF No. 15-6 [hereinafter DOE HQ Vaughn Index],

                                                10
at 8 (No. 13, Attach.). According to the Vaughn Indices, Defendant redacted from these materials

“the breakdown of costs[,] including cost sharing, labor and overhead along with subcontract

information”; “the names of the negotiators in the financial assistance negotiation memorandum

along with the Selection Statement containing the names and evaluations of negotiators involved

in the selection of Southern Company”; “portions of the Project Narrative submitted as a part of

Southern Company’s application . . . describing the specific technology and proprietary business

methods proposed to complete the project . . . . [and] [t]he names of business partners and

subcontractors participating in the project”; “cost information submitted in the application and

modifications of the cooperative agreement”; and “exhibits of . . . proprietary technical, cost, and

other financial information that was compiled by Southern [Company] and is not available in the

public domain.” See NETL Vaughn Index at 1–4, 6, 8; DOE HQ Vaughn Index at 8 (No. 13,

Attach.).

       Under Exemption 4, the Government need not disclose “trade secrets and commercial or

financial information obtained from a person and privileged or confidential.”             5 U.S.C.

§ 552(b)(4).   The exemption demands three showings: the information must (1) have been

“obtained from a person,” (2) consist of “trade secrets or commercial or financial information,”

and (3) be “privileged or confidential” in nature. See Wash. Post. Co. v. U.S. Dep’t of Health &

Human Servs., 690 F.2d 252, 265 (D.C. Cir. 1982); Ctr. for Digital Democracy v. FTC, 189

F. Supp. 3d 151, 159 (D.D.C. 2016). The D.C. Circuit has developed two tests to determine

whether information is “confidential” and instructed that, in deciding between the two tests, the

central inquiry is the manner in which the agency obtained the information. See Ctr. for Digital

Democracy, 189 F. Supp. 3d at 159. When the agency receives the information at issue as part of

a mandatory disclosure—as the parties agree is the case here—the agency must demonstrate that

                                                11
disclosing the information “is likely ‘(1) to impair the Government’s ability to obtain necessary

information in the future; or (2) to cause substantial harm to the competitive position of the person

from whom the information was obtained.’” Wash. Post. Co., 690 F.2d at 268 (quoting Nat’l

Parks & Conserv. Ass’n v. Morton, 498 F. 2d 765, 770 (D.C. Cir. 1974)).

       The question before the court in this case is limited. The parties agree that Southern

Company is a “person” within the meaning of the statute, the withheld information is “commercial

or financial information,” and Southern Company mandatorily disclosed that information as a

condition of receiving federal funding—they dispute only whether the information is

“confidential.” See Pl.’s Mem. at 15 & n.3; Def.’s Opp’n at 2; cf. Dunlap Decl. ¶¶ 42–43.

Consequently, the court need only determine whether Defendant has met its burden of

demonstrating that disclosure of the withheld materials would either (1) impair Defendant’s ability

to obtain the information in the future, or (2) cause substantial harm to Southern Company’s

competitive position.

       Because Defendant invokes both prongs of the mandatory-disclosure test to justify its

withholdings in this case, the court evaluates each, in turn.

               1.       The Government’s Ability to Gather Information in the Future

       To determine whether disclosure of withheld materials could impair the Government’s

ability to obtain that type of information in the future, the court must engage in a “rough balancing

of the extent of impairment and the importance of the information against the public interest in

disclosure.” See Wash. Post. Co., 690 F.2d at 269. The Government’s ability to mandate

disclosure in the future is only one aspect of the calculus; the court must also consider whether

“suppliers of information, as a consequence of public disclosure, will narrowly construe the

government’s requests and thereby seriously impair the government’s information-gathering

                                                 12
ability.” Ctr. for Digital Democracy, 189 F. Supp. 3d at 160. If the court determines the

Government could be disadvantaged as a result of disclosing the supplier’s information, then the

court must assess “whether this risk outweigh[s] the public’s interest in disclosure.” Wash. Post

Co. v. U.S. Dep’t of Health & Human Servs., 865 F.2d 320, 324–25 (D.C. Cir. 1989).

       Defendant argues that disclosing the information presently withheld will cause private

entities to provide lower quality information in the future, thereby impairing its information-

gathering ability. See Def.’s Opp’n at 7–8. For support, Defendant points to a statement from

Southern Company that disclosure in this case would negatively affect its future relationship with

Defendant. See id. at 8. Specifically, Southern Company submits that

               [Defendant] has a significant interest in maintaining the trust of its
               partners in the energy industry by appropriately safeguarding their
               confidential business information from public disclosure,
               particularly where, as here, the [withheld materials] relate[] to an
               advanced energy production facility. Were [Defendant] to publicly
               disclose the [withheld materials], and thereby reveal the fruits of
               [Southern] Company’s substantial investments of time, resources,
               and expertise, [Southern] Company would certainly be less inclined
               to provide [Defendant] with the same type, quantity, and quality of
               information . . . in the future. Furthermore, [Southern] Company
               believes there is a substantial likelihood that public disclosure of . .
               . [the withheld materials] could negatively impact [Defendant]’s
               prospects of partnering with other companies in the energy industry
               on the development of advanced technologies and facilities in the
               future.

Def.’s Opp’n, Attach. 2, ECF No. 18-2, at 20–34 [hereinafter Suppl. Dunlap Decl., Ex. C], at 14

(citation omitted). Southern Company’s statement primarily expresses the general private interest

in preventing disclosure—keeping behind closed doors industry knowledge and operational

information that a company has spent significant time, energy, and resources cultivating.

       Southern Company’s statement, however, does not sufficiently show that disclosing the

information at issue would likely impair Defendant’s ability to collect such information in the

                                                 13
future. In the context of mandatory disclosures, “the ‘continued reliability’ or ‘quality’ of the

information obtained by the government is assumed because companies required to submit

information would risk losing the government benefit for failing to comply fully and completely.”

Ctr. for Auto Safety v. U.S. Dep’t of the Treasury, 133 F. Supp. 3d 109, 128 (D.D.C. 2015) (citation

omitted). Southern Company’s statement does not rebut that presumption. Indeed, all Southern

Company has said is that public disclosure of the presently withheld information would make the

company “less inclined” to provide Defendant with information of the same “type, quantity, and

quality.” Suppl. Dunlap Decl., Ex. C, at 14. It is not clear, however, whether Southern Company

would have the freedom to minimize the quantity or quality of information it supplies to Defendant

and still obtain federal funding for an initiative like the Kemper Project, given that disclosure of

the very information at issue appears to be a condition of receiving federal funding. A single,

conclusory statement from Southern Company simply does not address that critical question. Cf.

Niagara Mohawk Power Corp. v. U.S. Dep’t of Energy, 169 F.3d 16, 18 (D.C. Cir. 1999) (holding

that the Government had not carried its burden when it offered only two conclusory affidavits, one

of which was the “speculative opinion” of a Government affiant “that [private entities] may not be

forthcoming in the data they submit if [the agency] allows disclosure” and the other a “terse and

self-serving statement” from a private secular executive that “he would ‘attempt to minimize the

scope and specificity of the information provided’” were the Government to disclose the withheld

information); Ctr. for Auto Safety, 133 F. Supp. 3d at 128. On this thin record, the court is unable

to determine whether disclosure actually presents a likelihood of impairing Defendant’s future

ability to obtain this type of information from Southern Company or other private entities seeking

federal funding and, correlatively, whether that risk outweighs the public interest in disclosure.

       Accordingly, an entry of summary judgment based on this theory is not possible.

                                                 14
               2.     Substantial Harm to Southern Company’s Competitive Position

       To determine whether disclosure of withheld materials could substantially harm a private

entity’s competitive position, the Government must demonstrate that the private entity

“(1) actually face[s] competition, and (2) substantial competitive injury would likely result from

disclosure.” Niagara Mohawk Power Corp., 169 F.3d at 18 (internal quotation marks omitted).

These showings must be concrete, not conjectural; hypothetical or future competition is not

enough, and the competitive injury cannot be too remote or conditioned on occasional

renegotiation of a long-term contract. Id. at 18–19.

       Here, Defendant relies entirely on two statements from Griff Waters, Managing Attorney

at Southern Company, to support its position that disclosing the presently withheld information

would cause Southern Company substantial competitive harm. The first statement explains that

disclosure of the redacted information concerning the Kemper Project would put Southern

Company at a competitive disadvantage in light of the novelty of the information being shared:

               [T]he [Kemper] Project is a first-of-a-kind power generating facility
               that employs new, proprietary technologies and represents the
               establishment of new opportunities for coal-fired generation within
               the global energy industry. The Project is the product of a
               significant investment of time, money, and resources, and relies
               upon the extensive experience and expertise of [Southern]
               Company’s personnel.        Thus, the [withheld information] is
               particularly sensitive given the novelty of the Project and the great
               potential value to competitors that knowledge of, or the capacity to
               quickly develop, systems and technologies similar to those utilized
               at the Project would entail. Public disclosure of this information
               would afford competitors or potential competitors the opportunity
               to obtain this valuable information without having invested these
               substantial resources, thereby placing [Southern] Company at a
               competitive disadvantage.

Def.’s Opp’n, Attach. 3, ECF No. 18-3, at 4–13 [hereinafter Suppl. Morris Decl., Ex. A], at 3–4l;

see Def.’s Opp’n at 3–4. The second statement provides additional details of the anticipated

                                                15
harm:

                Such information would not only be unduly advantageous for a
                competitor to access and use towards developing—or even merely
                evaluating the development—of its own project, but contractors,
                vendors, and other companies with whom [Southern] Company does
                business could leverage such inside financial information in future
                negotiations with [Southern] Company, thereby weakening
                [Southern] Company’s competitive position.

Suppl. Dunlap Decl., Ex. C, at 8; see Def.’s Opp’n at 5. In combination, the statements reflect

Southern Company’s belief that disclosure would reveal propriety information that might be used

to its detriment.

        These statements are not enough to satisfy Defendant’s burden of putting forth reliable

evidence of actual competition between Southern Company and any other company.               The

statements describe the withheld information as being of “great potential value to competitors”;

public disclosure of the information “would afford competitors or potential competitors the

opportunity to obtain this valuable information”; and “contractors, vendors, and other companies

with whom [Southern] Company does business could leverage such inside information in future

negotiations.” See Suppl. Morris Decl., Ex. A, at 3–4 (emphases added); Suppl. Dunlap Decl.,

Ex. C, at 8 (emphasis added). These generalized statements are insufficient. At no point does

Mr. Waters describe the market in which Southern Company faces competition or against whom

Southern Company actually competes in its use of such technology. It is also unclear to the court

whether other entities sought federal funding for the development of clean coal technology or

might compete with Southern Company for such funding in the future. Moreover, to the extent

Southern Company claims disclosure would weaken its competitive position with regard to cost

inputs, Mr. Waters likewise describes that form of “actual competition” in conclusory terms. He

does not, for instance, describe how, if at all, Southern Company uses competition among potential

                                                16
contractors and vendors to manage operating costs or capital expenses. Thus, while the proffered

statements support the contention that Southern Company might have competitors or may make

use of competitive bidding, they do not reflect the actual competition required under the case law.

Cf. Ctr. for the Study of Servs. v. U.S. Dep’t of Health & Human Servs., 130 F. Supp. 3d 1, 10

(D.D.C. 2015). In other words, based on the present record, the competition Defendant cites is

wholly hypothetical.

       Defendant could have demonstrated that Southern Company faces actual competition in a

number of ways. It could have submitted an affidavit that lists Southern Company’s competitors.

See, e.g., Gov’t Accountability Project v. FDA, 206 F. Supp. 3d 420, 438 (D.D.C. 2016); Ctr. for

Digital Democracy, 189 F. Supp. 3d at 164. Defendant also could have submitted affidavits,

expert reports, or deposition testimony—reliable evidence—identifying the number of competitors

in the industry or describing the number of private entities vying for federal funding to develop

similar initiatives. Cf. Ctr. for the Study of Servs., 130 F. Supp. 3d at 10. Conclusory statements

from Southern Company that describe its own competition in generalized and hypothetical terms,

however, will not suffice.

       Accordingly, an entry of summary judgment based on this theory is not possible, either.

       C.      Exemption 5

       Plaintiff also challenges Defendant’s reliance on FOIA Exemption 5 to withhold e-mail

discussions between and among agency employees, as well as requests for legal advice and the

responses to those requests. In particular, Plaintiff contests ten entries in the DOE Headquarters

Vaughn Index: Nos. 3, 7, 8, 9, 10, 11, 12, 14, 15, and 16. Pl.’s Reply in Supp. of Cross-Mot. for

Summ. J., ECF No. 20 [hereinafter Pl.’s Reply], at 6. With citation to Mr. Morris’ and Ms.

Dunlap’s declarations, Defendant submits that it properly invoked Exemption 5 to withhold that

                                                17
information because the deliberative process privilege protects all the documents Plaintiff lists and

the attorney-client privilege also protects four of those documents. See Def.’s Mot., Mem. in

Supp., ECF No. 13-2 [hereinafter Def.’s Mem.], at 9–11. Plaintiff asserts that Defendant has not

put forward sufficient information to support its claim that the withheld materials are privileged.

In particular, Plaintiff argues that Defendant cannot rely on the declaration of either Ms. Dunlap

or Mr. Morris because neither declarant had personal knowledge of the facts asserted. Pl.’s Mem.

at 9–12.     Additionally, Plaintiff challenges Ms. Dunlap’s declaration as inappropriately

“qualified” because it uses the word “affirm,” contrary to the United States Code’s requirements

for a sworn statement. Id. at 11.

       FOIA Exemption 5 shields from disclosure “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.” 5 U.S.C. § 5552(b)(5). As a general matter, an agency may invoke Exemption 5 to

withhold materials that would be protected from discovery in ordinary civil litigation under a

“recognized evidentiary or discovery privilege.” Judicial Watch, Inc. v. U.S. Dep’t of Def., 847

F.3d 735, 739 (D.C. Cir. 2017) (alteration adopted) (internal quotation marks omitted). The

attorney-client and deliberative process privileges are among those privileges recognized in

everyday litigation and, correlatively, are ones upon which an agency can rely when invoking

Exemption 5. Nat’l Ass’n of Crim. Def. Lawyers v. U.S. Dep’t of Justice Exec. Office for U.S.

Att’ys, 844 F.3d 246, 249 (D.C. Cir. 2016). To rely on the deliberative process privilege, the

Government must show that the material it redacted was both “predecisional” and “deliberative.”

See Judicial Watch, Inc., 847 F.3d at 739. “Documents are ‘predecisional’ if they are generated

before the adoption of an agency policy, and ‘deliberative’ if they reflect the give-and-take of the

consultative process.” Id. (alteration adopted) (internal quotation marks omitted). For purposes

                                                 18
of FOIA Exemption 5, the attorney-client privilege shields “confidential communication from an

attorney to a[n agency-]client, but only if that communication is based on confidential information

provided by the [agency-]client.” Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d

242, 254 (D.C. Cir. 1977). Not all conversations between an agency and its attorneys are

privileged. To properly invoke Exemption 5 based on this privilege, the agency must demonstrate

that the withheld material “(1) involves confidential communications between an attorney and his

or her client and (2) relates to a legal matter for which the client has sought professional advice.”

Judicial Watch, Inc. v. U.S. Dep’t of Def., No. 16-360, 2017 WL 1166322, at *7 (D.D.C. Mar. 28,

2017) (alteration adopted) (internal quotation marks omitted).

        As a preliminary matter, the court dismisses Plaintiff’s suggestion that Ms. Dunlap’s

declaration falls short of a “sworn statement” simply because Ms. Dunlap used the word “affirm.”

Section 1746 of Title 28 of the United States Code requires that sworn statements executed in the

United States and intended to be used as evidence contain a line “in substantially the following

form: . . . ‘I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true

and correct. Executed on (date).’” 28 U.S.C. § 1746(2). Ms. Dunlap’s declaration concludes

with the following line: “Pursuant to 28 U.S.C. § 1746, I hereby affirm under penalty of perjury

that the foregoing declaration is true and correct to the best of my knowledge and belief.” Dunlap

Decl. ¶ 53 (signed and dated October 4, 2016) (emphasis added). Plaintiff cites nothing to support

its proposition that the word “affirm” is not “substantially” similar to “declare (or certify, verify,

or state).” On the contrary, Black’s Law Dictionary describes the word “affirm” as an alternate

to the word “swear” when making a statement under oath. See Affirm, BLACK’S LAW DICTIONARY

(10th ed. 2014) (“To solemnly declare rather than swear under oath.”); cf. Affirmation, MERRIAM-

WEBSTER DICTIONARY ONLINE, https://www.merriam-webster.com/dictionary/affirmation (“[A]

                                                   19
solemn declaration made under the penalties of perjury by a person who conscientiously declines

taking an oath.”). Accordingly, the court concludes that using the word “affirm” satisfies the

requirements of Section 1746.

        The court also rejects Plaintiff’s assertion that Defendant’s declarants lacked personal

knowledge of the facts they asserted in their declarations. Rule 56 of the Federal Rules of Civil

Procedure requires that “[a]n affidavit or declaration used to support or oppose a motion . . . be

made on personal knowledge, set out facts that would be admissible in evidence, and show that

the affiant or declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). A

FOIA declarant “satisfies the personal knowledge requirement in Rule 56[(c)(4)] if in his

declaration, he attests to his personal knowledge of the procedures used in handling a FOIA request

and his familiarity with the documents in question.” Barnard v. U.S. Dep’t Homeland Sec., 531

F. Supp. 2d 131, 138 (D.D.C. 2008).2 The D.C. Circuit has explained that, in this context, the

person who coordinates and oversees the search for documents responsive to the FOIA Request is

“the most appropriate person to provide a comprehensive affidavit,” even if that affiant relies on

“partly second-hand” information.            SafeCard Servs., Inc., 926 F.2d at 1201.                Contrary to

Plaintiff’s contention, Ms. Dunlap and Mr. Morris are the most appropriate individuals to provide

declarations concerning the searches undertaken and exemptions asserted in this matter, and their

declarations demonstrate they had personal knowledge of the issues at hand. First, Plaintiff cites

no authority for the proposition that Defendant needed to submit declarations from “a senior

executive or high ranking policy official at the agency” in order to justify its withholdings.

Indeed, Circuit precedent contradicts that proposition—the individual who coordinates and



2
   Rule 56 was amended in 2010, at which time the personal knowledge requirement for affidavits and declarations
filed in support of a motion was relocated to subsection (c)(4). See Fed. R. Civ. P. 56(c) advisory committee’s note
to 2010 amendments.
                                                        20
oversees a search in response to a FOIA Request is the individual most appropriate to give a

declaration. See SafeCard Servs., Inc., 926 F.2d at 1201. Second, both declarations satisfy Rule

56(c)(4) because Ms. Dunlap and Mr. Morris each attest to their respective roles as NETL’s FOIA

Officer and DOE Headquarters’ FOIA Officer, personal knowledge of the procedures that NETL

and/or DOE Headquarters follow when responding to FOIA requests, supervision of the search

undertaken in response to Plaintiff’s FOIA Request, and general familiarity with the documents at

issue. See Dunlap Decl. ¶¶ 1–5, 8–9, 15; Morris Decl. ¶¶ 1–6, 11, 23; see also Barnard, 531 F.

Supp. 2d at 138. Neither declarant was obligated to perform the search him- or herself. See

Carter, Fullerton & Hayes LLC v. FTC, 520 F. Supp. 2d 134, 146 (D.D.C 2007). The court

therefore concludes the declarations satisfy Rule 56(c)(4)’s personal knowledge requirement.

       The court finds, however, that Defendant has not carried its burden of proving either

privilege applies to the documents in question. Indeed, material issues of fact remain as to

Defendant’s invocation of both the deliberative process privilege and attorney-client privilege.

       Defendant cannot successfully claim the documents fall within the deliberative process

privilege because Defendant has not shown that any withheld document actually predates an

agency decision. In fact, not one entry in the DOE Headquarters Vaughn Index identifies any

“decision” to which the withheld material contributed. The Index describes Document 3 as an

“email chain discussing draft talking points for a meeting on the Kemper project.” See DOE HQ

Vaughn Index at 1 (No. 3). Documents 9, 10, and 11 are labeled “email chain discussing a

proposal regarding the Mississippi coal plant,” which the court assumes refers to the Kemper

Project. See id. at 4–7 (Nos. 9, 10, 11). Documents 7, 8, and 12 are similarly described as e-

mail chains in preparation for a meeting, but do not even identify the topic of the meeting. See

id. at 2–3, 7 (Nos. 7, 8, 12). Lastly, the Index generically describes Documents 14, 15, and 16

                                                21
each as “email chain discussing talking points for phone call.” Id. at 9–13 (Nos. 14, 15, 16).

These descriptions provide no indication whether the redacted material was “generated before the

adoption of an agency policy,” see Judicial Watch, Inc., 847 F.3d at 739, because “a proposal,” “a

meeting,” and “a phone call” are not agency decisions. The declarations to which Defendant

points provide no further support. Neither Ms. Dunlap nor Mr. Morris identifies a single agency

action to which the withheld materials contributed. See Dunlap Decl. ¶¶ 45–48; Morris Decl. ¶¶

28–30. At most, Ms. Dunlap vaguely indicates that some of the materials pertain to “a draft

permit application and the request to relocate the project,” but provides no further details. See

Dunlap Decl. ¶ 49. Thus, Defendant does not put forward sufficient information to allow the

court to determine whether the deliberative process privilege applies.

       Defendant’s reliance on the attorney-client privilege also comes up short because it is

unclear whether the four documents Defendant seeks to withhold reflect confidential

communications related to a matter for which Defendant sought legal advice.            Defendant’s

descriptions of those four documents—entries 10, 11, 15, and 16 of the DOE Headquarters Vaughn

Index—provide no indication that they involve privileged communications between the agency

and its attorney, as they are merely described as “email chain discussing a proposal regarding the

Mississippi coal plant,” DOE HQ Vaughn Index at 5–6 (Nos. 10, 11), and “email chain discussing

talking points for phone call,” id. at 10–11 (Nos. 15, 16). Those communications could very well

concern business matters, which is not protected by the attorney-client privilege. See Ctr. for

Public Integrity v. U.S. Dep’t of Energy, 234 F. Supp. 3d 65, 77 (D.D.C. 2017). Additionally, the

“justification” Defendant provided is practically identical in all four entries, stating only that a

portion of the e-mail chain “contains communications between DOE staff and a DOE attorney” in

which “legal advice [is] provided by the DOE attorney” and release of that information “would

                                                22
deprive DOE staff of the benefit of confidential advice from DOE attorneys in legal matters related

to policy decisions.” DOE HQ Vaughn Index at 5–6, 10–13 (Nos. 10, 11, 15, 16). Defendant’s

declarants put no more meat on the bones of the Index. Ms. Dunlap only states that “[t]he

withheld information consists of legal advice sought by NETL staff from the Office of Chief

Counsel at NETL and the Office of the General Counsel at DOE headquarters, and the legal advice

provided in response to those requests.” Dunlap Decl. ¶ 48. Similarly, Mr. Morris states that

“[t]he withheld information consists of requests for legal advice sought by DOE program staff

from GC and legal advice provided by GC regarding draft documents and statements.” Morris

Decl. ¶ 31. Merely claiming that a communication is “legal advice” is not enough for the court

to assess whether the communication actually was a confidential communication and related to a

matter for which the agency would seek advice about a legal matter.             Cf. Fed. R. Civ. P.

26(b)(5)(A) (requiring a party asserting a privilege to “describe the nature” of the withheld material

and “do so in a manner that, without revealing information itself privileged or protected, will

enable other parties to assess the claim”); see also Fed. R. Civ. P. 26 advisory committee’s note to

1993 amendment (stating that “[d]etails concerning time, persons, general subject matter, etc., may

be appropriate if only a few items are withheld”). As another court in this District recently

observed, “the attorney-client privilege is not an all-purpose FOIA evasion mechanism,” Public

Emps. for Envtl. Responsibility v. EPA, 211 F. Supp. 3d 227, 231 (D.D.C. 2016), and this court

will not allow Defendant to treat it as one by rubberstamping the boilerplate language in the

proffered declarations and DOE Headquarters Vaughn Index as sufficient. Accordingly, the court

concludes a material issue of fact remains as to whether these four documents fall within the

attorney-client privilege for purposes of Exemption 5.




                                                 23
         For the reasons stated, summary judgment is not warranted for either party with regard to

Defendant’s reliance on Exemption 5. If Defendant wishes to supplement the record and renew

its motion for summary judgment, then it must submit at least one reasonably detailed affidavit

explaining (1) the agency decision to which each withheld document purportedly contributed;

(2) why those materials are “deliberative” in nature, as that term is understood in this Circuit 3;

(3) whether the communications between agency staff and counsel were confidential; and (4) the

general nature or topic of the “legal advice” the agency sought from its counsel.

         D.       Exemption 6

         Lastly, Plaintiff challenges seven entries in the NETL Vaughn Index and nine entries in the

DOE Headquarters Vaughn Index as inappropriately withheld pursuant to FOIA Exemption 6.

See Pl.’s Mem. at 12, 24 (challenging NETL Vaughn Index at 5, 10, 12, and 13; DOE HQ Vaughn

Index Nos. 3, 7, 8–12, 15–16). Defendant asserts that it need not disclose the “names, telephone

numbers, email addresses, and home addresses” of Southern Company employees who worked on

or assisted with the Kemper Project because those individuals’ privacy interests outweigh any

public interest in disclosing their identities. Def.’s Mem. at 13. More importantly, Defendant

argues, this issue is now moot, as Plaintiff’s own declarant states that the very names Plaintiff

seeks are publicly available through Southern Company’s Securities and Exchange Commission

filings. Def.’s Reply in Supp. of Summ. J. & Opp’n to Pl.’s Cross-Mot., ECF No. 19, at 12–13

(referencing Zegart Decl. ¶ 15). Plaintiff does not dispute that the personal contact information

of Southern Company employees is protected under Exemption 6.                                Pl.’s Mem. at 24–25.


3
  The court need not address whether the materials Defendant seeks to withhold qualify as “deliberative” because it
is plain from the record that Defendant has not shown they are “predecisional.” The court notes, however, that
boilerplate language in the Vaughn Index or a declaration will no more support a finding that a document is
“deliberative” than a finding that it is “predecisional.” In supplementing the record, Defendant should be cognizant
that it bears the burden of establishing both characteristics if it wishes to withhold a document based on the deliberative
process privilege.
                                                           24
It submits, however, that Defendant’s declarations are insufficient to justify withholding the names

of those employees because they are generic and fail to identify a cognizable privacy interest

implicated by disclosure, while the public has a substantial interest in learning the “identities of

business persons responsible for the administration . . . of government funds.” Pl.’s Mot. at 13,

24–25. Additionally, Plaintiff believes its ability to obtain the information from the Securities

and Exchange Commission does not moot the issue, but rather, supports its contention that

Defendant’s redactions were arbitrary. See Pl.’s Reply in Supp. of Cross-Mot. for Summ. J., ECF

No. 20 [hereinafter Pl.’s Reply], at 7.

       FOIA Exemption 6 permits the government to withhold “personnel and medical files and

similar files the disclosure of which would constitute a clearly unwarranted invasion of personal

privacy.” 5 U.S.C. § 522(b)(6). To determine whether a withholding is proper, the reviewing

court asks whether the information involves “personnel, medical, or ‘similar’ files,” Multi Ag

Media LLC v. U.S. Dep’t of Agric., 515 F.3d 1224, 1228 (D.C. Cir. 2008), and, if so, then

determines “whether their disclosure ‘would constitute a clearly unwarranted invasion of personal

privacy,’” id. (quoting 5 U.S.C. § 522(b)(6)). There is no need for the court to engage in this

analysis, however, if the withheld materials are publicly available through another source. In that

circumstance, the issue becomes moot. See Bayala v. Dep’t of Homeland Sec., 827 F.3d 31, 34

(D.C. Cir. 2016) (explaining that if the Government has released a portion of the requested

materials, the case is moot as to those materials); Williams & Connolly v. SEC, 662 F.3d 1240,

1243 (D.C. Cir. 2011); Powell v. IRS, No. 16-1682, 2017 WL 2533348, at *9 (D.D.C. Jun. 9, 2017)

(finding that, in a FOIA case, “where the government has released certain requested documents,

the case is moot as to them”).

       As the information that Plaintiff seeks—the names of responsible Southern Company

                                                25
employees—is publicly available in Southern Company’s Securities and Exchange Commission

filings, any dispute concerning Defendant’s reliance on Exemption 6 to withhold that same

material is moot. Plaintiff’s own declarant—Mr. Zegart—states in his declaration that “names

and other information redacted in DOE documents submitted to CIC were publicly disclosed in

versions of the same documents publicly filed with the Securities and Exchange Commission.”

Zegart Decl. ¶ 15.     Although Mr. Zegart made this statement to suggest that Defendant’s

redactions are “arbitrary” and unsupported by Exemption 6, his statement has the effect of mooting

the dispute because it makes clear Plaintiff already has access to the same information that it

requests from Defendant. See Williams & Connolly, 662 F.3d at 1243. As such, there is no issue

for the court to resolve here.

       Accordingly, the court denies as moot both motions for summary judgment as to

Defendant’s withholding of information under Exemption 6.

IV.    CONCLUSION AND ORDER

       In light of the foregoing, the court denies both Defendant’s Motion for Summary Judgment

and Plaintiff’s Cross-Motion for Summary Judgment. The court denies summary judgment for

Defendant as to the applicability of Exemption 4, denies summary judgment for both parties as to

the adequacy of Defendant’s search for responsive materials and the appropriateness of

Defendant’s withholdings pursuant to Exemption 5, and denies as moot any challenge pertaining

to Exemption 6.




                                               26
       If Defendant intends to renew its Motion for Summary Judgment based on supplementary

affidavits or other evidence, then the parties shall meet and confer and propose a briefing schedule

by no later than October 2, 2017.




Dated: September 11, 2017                            Amit P. Mehta
                                                     United States District Judge




                                                27
                                            APPENDIX

       Plaintiff seeks materials from “the period January 1, 1998[,] through and including

December 31, 2011,” that meet any of the following descriptions:

               (1) All documents and records of communications and memoranda
                   of any kind, including but not limited to electronic
                   communications, regarding contacts or meetings between the
                   National Energy Technology Laboratory and the Southern
                   Company. You may limit your search to those documents
                   addressing the development, funding, construction and/or
                   implementation of so called “clean coal” technology and carbon
                   capture and storage (CCS) technologies and the TRIG process.
               (2) All documents and records of communications of any kind,
                   including but not limited to electronic communications,
                   regarding contacts or meetings between the National Energy
                   Technology Laboratory and any subsidiaries, successors, or
                   assigns of the Southern Company, including, without limitation,
                   Mississippi Power Company, Alabama Power Company, and
                   the Gulf Power Company. You may limit your search to those
                   documents addressing the development, funding, construction
                   and/or implementation of so called “clean coal” technology and
                   carbon capture and storage (CCS) technologies and the TRIG
                   process.
               (3) All documents and records of communications of any kind,
                   including but not limited to electronic communications,
                   regarding CCS technologies researched or developed at the
                   Power Systems Development Facility near Wilsonville,
                   Alabama.
               (4) All documents and records of communications and memoranda
                   of any kind related to the decision to attempt to site a coal-fired
                   power plant using TRIG technology in Florida.
               (5) All documents and records of communications and memoranda
                   of any kind related to the decision to site a coal-fired power plant
                   in Kemper County, Mississippi.
               (6) All documents and records of communications and memoranda
                   of any kind related to the Kemper County facility and the BGR
                   Group, including any of the principals of the BGR Group,
                   including specifically but not limited to Haley Barbour, Ed
                   Rogers, Lanny Griffith, and Bob Wood.

Def.’s Mot., Attach. 4, at 13–17 (Ex. B).

                                                 28
