SOUTHERN ENVIRONMENTAL LAW CENTER v. TENNESSEE VALLEY AUTHORITY (2025)

MEMORANDUM OPINION AND ORDER

Defendant Tennessee Valley Authority filed a “Motion for Summary Judgment” [Doc. 35]. For the foregoing reasons, the Court grants Defendant's Motion and dismisses this action.

I. Background

On February 13, 2023, Plaintiff Southern Environmental Law Center requested documents from Defendant under the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”) [See Doc. 35-2]. Plaintiff sought:

All records related to the Johnsonville Aeroderivative Combustion Turbine [(“CT”)] Project in Humphreys County, Tennessee (except for records cited in the Final Environmental Assessment for the Project that are easily retrievable via the internet including, but not limited to, TVA's 2019 Integrated Resource Plan).

[Doc. 35-1 at 3-4 (First Declaration of Sherri R. Collins (“First Collins Decl.”) ¶ 12)]. Plaintiff desired records from “January 1, 2021, to February 13, 2023” [Id. at 4 (First Collins Decl. ¶ 13)]. At the time Plaintiff made the request, its counsel represented the Sierra Club in separate litigation against Defendant in the Middle District of Tennessee regarding the construction of the Johnsonville Aeroderivative Combustion Turbine under the National Environmental Policy Act (“NEPA”). See Sierra Club v. TVA, No. 3:22-cv-1054 (M.D. Tenn.).

Defendant informed Plaintiff that its initial request was “extremely broad and general” and that Plaintiff needed to “more closely define or provide more detailed information on the type of records” it requested [Doc. 35-1 at 4 (First Collins Decl. ¶ 14)]. On April 4, Plaintiff modified its request to “three categories of information:”

(1) All records related to the TVA Board of Directors’ August 2019 approval of a capital project to add 500MW of aeroderivative combustion turbines; (2) All records related to TVA's development, adoption, and implementation of the CT Modernization Study; and (3) All records related to TVA's evaluation, approval, and implementation of the Johnsonville Aeroderivative Combustion Turbines Project.

[Id. (First Collins Decl. ¶ 15)]. Plaintiff has asserted that its modified request was “encompassed by” its initial request [See Doc. 1 ¶ 26]. Plaintiff's modified request, however, “expanded the original date range” from a two (2) year window to a five (5) year window [Doc. 35-1 at 4 (First Collins Decl. ¶ 16)].

Defendant “interpreted the modified FOIA request in conjunction with the initial FOIA request” [Id. at 6 (First Collins Decl. ¶ 23)]. That is, Defendant considered the three (3) categories of information in Plaintiff's modified request “as each relate[d] to the Johnsonville Aero CT project”—the subject of Plaintiff's initial request [Id. at 6-7 (First Collins Decl. ¶ 24)]. Defendant further interpreted the modified request to seek “records related to the agency's Johnsonville Aero CT Project NEPA review and corresponding agency decision” because the record of those proceedings “includes all records” Defendant considered “directly or indirectly,” “for the Johnsonville Aero CT project” [Id. at 7 (First Collins Decl. ¶ 26)].

Defendant then conducted its initial search, with these parameters in mind, in accordance with its internal regulations [Id. at 2-3 (First Collins Decl. ¶¶ 5-8)]. That process included determining which of Defendant's subdivisions—or “business units”—to search for responsive documents “based on a review of the content of the request itself, the nature of the records sought,” and the business unit's “familiarity with the type and location of records that may exist” [Id. at 2 (First Collins Decl. ¶ 6 (citing 18 C.F.R. §§ 1301.4, 1301.5))]. Defendant then produced to Plaintiff the administrative record Defendant lodged in the related NEPA litigation in the Middle District of Tennessee [See Doc. 35-1 at 3 n.1].

On March 14, 2024, Plaintiff filed a complaint alleging that Defendant failed to make a timely determination regarding Plaintiff's FOIA request, failed to conduct an adequate search, and improperly withheld responsive documents [Doc. 1 at 10-11]. Defendant filed a Motion to Dismiss, arguing that this Court lacked subject matter jurisdiction because Plaintiff failed to exhaust its administrative remedies [Doc. 13]. Because Plaintiff constructively exhausted its administrative remedies, however, the Court denied Defendant's Motion to Dismiss [See Doc. 23 at 6-7].

Thereafter, Defendant conducted a supplemental search [See Docs. 35-1 at 8-9 (First Collins Decl. ¶¶ 33-38); 40-1 at 1-2 (Second Declaration of Sherri R. Collins (“Second Collins Decl.”) ¶ 4)]. Defendant “consulted” with “different TVA business units likely to have any additional potentially responsive records” [Doc. 40-1 at 1-2 (Second Collins Decl. ¶ 4)]. “[T]hese business units included TVA Board Services, Enterprise Planning, and the National Environmental Policy Act (‘NEPA’) program” [Id. at 2 (Second Collins Decl. ¶ 5)]. Defendant “determined that eleven additional records were responsive” [Doc. 35-1 at 8-9 (First Collins Decl. ¶ 35)].

Defendant “provided Plaintiff with additional responsive, non-exempt records and a Vaughn Index of records” that Defendant “withheld under an applicable FOIA exemption” [Doc. 40-1 at 2 (Second Collins Decl. ¶ 6)]. On September 9, 2024, Defendant sent Plaintiff a “Supplemental Response Letter” indicating that Defendant had completed Plaintiff's modified request and withheld documents under 5 U.S.C. § 552(b)(5) (“Exemption 5”) [Doc. 35-1 at 8-9 (First Collins Decl. ¶¶ 36-38)]. Defendant withheld a “CT Fleet Modernization” document (“CT Modernization Document”), among others [Doc. 35-11 at 5].

The CT Modernization Document “contain[ed] preliminary cost estimates/financing decisions, proposed alternative capacity additions, and suggested CT generation decisions, all of which are preliminary and exploratory in nature, do not reflect the final agency position, had not been approved by the TVA Board, and/or is otherwise evolving or subject to change” [Id.]. The CT Modernization document “relates to” the CT Modernization Study [Id.]. The CT Modernization Study “evaluated aeroderivative CTs, Frame CTs, and Combined Cycles as replacement options” for Defendant in integrating new technologies across its combustion turbine fleet [Doc. 35-1 at 7 (First Collins Decl. ¶ 25)]. Defendant publicly relied on the CT Modernization Study in producing the “Johnsonville Aeroderivative Combustion Turbines Project Final Environmental Assessment” [See Doc. 39-3 at 14, 20-21].

Defendant subsequently filed a “Motion for Summary Judgment” [Docs. 35], arguing that it is entitled to judgment as a matter of law.¹

II. Analysis

Federal Rule of Civil Procedure 56 provides that the Court “shall grant summary judgment if the movant 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). The Parties here do not dispute the salient facts. As such, the Court resolves purely legal questions.

A. Defendant Conducted An Adequate Search.

In responding to a FOIA request, an agency “shall make reasonable efforts to search for the records.” 5 U.S.C. § 552(a)(3)(B). An agency must “make a good faith effort to conduct a search for the requested records using methods reasonably calculated to discover the requested documents.” See CareToLive v. Food and Drug Admin., 631 F.3d 336, 340 (6th Cir. 2011) (citing Rugiero v. U.S. Dep't of Just., 257 F.3d 534, 547 (6th Cir. 2001)). The Court determines the adequacy of a search by assessing the methods an agency used, not whether the search “actually uncovered every document extant.” Id. It is inconsequential “whether additional documents exist that might satisfy the request”—what matters is whether the agency used adequate search methods. Id. (citation omitted). “[T]he burden is on the agency to establish the adequacy of the search.” Id. (quotation omitted).

An agency has “discretion to construe requests reasonably and conduct flexible and targeted searches within their internal records systems.” See Kowal v. U.S. Dep't of Just., 107 F.4th 1018, 1028-29 (D.C. Cir. 2024). FOIA does not require an agency to “boil[ ] the ocean in search of responsive documents.” Id. (citation omitted). In reviewing the adequacy of a search, the Court gives affidavits or declarations from the searching agency describing the search process “a presumption of good faith.” Id. at 1027 (quotation omitted). A declaration must provide “reasonable detail” concerning “the scope of the search.” CareToLive, 631 F.3d at 340 (quotation omitted). “[M]odel” declarations “describe the procedures” an agency uses to process search requests and describe how the agency “determine[s] which offices and departments to search for responsive documents.” Id. at 341 (citing Rugiero, 257 F.3d at 547).

Here, two (2) declarations from Defendant—the bona fides of which Plaintiff does not challenge—and the record evidence show that Defendant conducted an adequate search. Defendant requested that Plaintiff narrow its initial request, which FOIA permits. See Rugiero, 257 F.3d at 548 (describing 5 U.S.C. § 552(a)(3)(a)); see also Kowal, 107 F.4th at 1028-29. Subsequently, Defendant interpreted Plaintiff's modified request within the context of Plaintiff's first request. Doing so was within Defendant's “discretion to construe requests reasonably,” see Kowal, 107 F.4th at 1028-29, especially considering that Plaintiff, itself, understood the modified request to be “encompassed” within its original request, [see Doc. 1 ¶ 26]. And taking both of Defendant's Declarations together, they provide “reasonable detail” concerning the scope of Defendant's search. See CareToLive, 631 F.3d at 340 (quotation omitted).

The First Collins Declaration described the internal procedures Defendant uses to receive and process FOIA requests, including identifying which TVA business units are most likely to possess responsive documents [Doc. 35-1 at 2 (First Collins Decl. ¶ 6 (citing 18 C.F.R. §§ 1301.4, 1301.5))]. The Declaration further described how Defendant interpreted Plaintiff's modified request and how Defendant chose to respond [Id. at 3-8 (First Collins Decl. ¶¶ 9-32)]. And the First Collins Declaration described Defendant's “supplemental search,” which yielded eleven (11) additional responsive documents [Id. at 8-9 (First Collins Decl. ¶¶ 33-38)]. Defendant's Second Declaration provided even more information. It detailed the TVA business units with potentially responsive records and that Defendant coordinated with those business units to search for responsive records [Doc. 40-1 at 1-2 (Second Collins Decl. ¶¶ 4-5)]. The record shows that Defendant conducted an adequate search. After all, FOIA requires “adequacy—not perfection.” See DiBacco v. U.S. Army, 795 F.3d 178, 191 (D.C. Cir. 2015) (citing Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990)).

Plaintiff contends that Defendant's search was inadequate because Plaintiff believes that other “documents must exist” [Doc. 39 at 8]. Plaintiff states that this argument is not “speculative” or “results driven” because it is not “wild speculation” [Id.]. That fails to carry the day. Whether a FOIA requester wildly speculates or makes an educated guess that some additional documents must exist, the requester still seeks to judge the adequacy of the search by the results. The law does not deem a search inadequate because a requester believes other documents exist. See CareToLive, 631 F.3d at 340 (citing Rugiero, 257 F.3d at 547); see also Wilbur v. CIA, 355 F.3d 675, 678 (D.C. Cir. 2004) (noting that an “agency's failure to turn up a particular document ․ does not undermine the determination that the agency conducted an adequate search for the requested records”). Put another way, the adequacy of Defendant's search is “determined not by the fruits,” but “by the appropriateness of the methods” used to search. See Kowal, 107 F.4th at 1028 (quotation omitted). Plaintiff's results-suggest-inadequacy argument thus fails.

B. Defendant Properly Invoked FOIA Exemption 5 To Withhold The CT Modernization Document.

FOIA Exemption 5 permits an agency to withhold certain “inter-agency or intra-agency” documents “that 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). Exemption 5 “incorporates the privileges available to Government agencies in civil litigation.” See Campaign Legal Ctr. v. U.S. Dep't of Just., 34 F.4th 14, 19 (D.C. Cir. 2022) (quotation omitted). As relevant here, Exemption 5 excludes from production documents protected by the “deliberative process privilege.” Id. The deliberative process privilege shields “documents reflecting advisory opinions, recommendations,” and “deliberations comprising part of a process by which” the agency formulates its “decisions and policies.” Id. (citation omitted). A document must be both “predecisional and deliberative” to be privileged. Id. at 23 (citing Machado Amadis v. Dep't of St., 971 F.3d 364, 370 (D.C. Cir. 2020)). As the name suggests, predecisional documents are those the agency “generate[s] before the agency's final decision on the matter.” Id. (quotation omitted). Deliberative documents, on the other hand, are those the agency “prepare[s] to help [it] formulate its position.” Id. (quotation omitted).

An agency may “waive” the deliberative process privilege if it “chooses expressly to adopt or incorporate by reference an intra-agency” document protected by the privilege. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 161, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975) (emphasis added); see also Elec. Frontier Found. v. U.S. Dep't of Just., 739 F.3d 1, 10-11 (D.C. Cir. 2014) (noting that an agency “adopts” a document's reasoning when the agency makes it “evident” that the document's reasoning is “its [own] reasoning”); Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227, 238-39 (D.C. Cir. 2008) (quotations omitted). A requester bears the burden of producing “at least some evidence” that an agency waived the deliberative process privilege. Elec. Frontier Found. v. U.S. Dep't of Just., 890 F.Supp.2d 35, 46-47 (D.D.C. 2012) (citing Rothschild v. Dep't of Energy, 6 F.Supp.2d 38, 40-41 n.3 (D.D.C. 1998); Davis v. Dep't of Just., 968 F.2d 1276, 1279 (D.C. Cir. 1992)). The Court does not “lightly infer[ ]” that an agency waived the deliberative process privilege. See In re Sealed Case, 121 F.3d 729, 740-41 (D.C. Cir. 1997) (quotation omitted).

Here, Plaintiff challenges only Defendant's withholding of the CT Modernization Document under Exemption 5 [See Doc. 39 at 10]. And Plaintiff argues only that Defendant waived its Exemption 5 deliberative process privilege because in producing the Johnsonville Aeroderivative Combustion Turbines Project Final Environmental Assessment, Defendant publicly relied on the CT Modernization Study, which itself “relates to” the CT Modernization Document [See Doc. 35-11 at 5]. That is at least one Russian nesting doll too many.

Defendant's public reliance on the CT Modernization Study does not implicitly waive Defendant's privilege in all of the documents the study “relates to” [See Doc. 35-11 at 5]. And Plaintiff identifies no evidence making it “evident” that Defendant “expressly” adopted the CT Modernization Document's reasoning. See Elec. Frontier Found., 739 F.3d at 10; see also NLRB, 421 U.S. at 161, 95 S.Ct. 1504. To the contrary, the CT Modernization Document “contains preliminary cost estimates/financing decisions, proposed alternative capacity additions,” and other suggestions that “do not reflect the final agency position,” “had not been approved by the TVA Board, and/or” were “otherwise evolving or subject to change” [Doc. 35-11 at 5 (emphasis added)]. Defendant may have publicly adopted the CT Modernization Study. Defendant did not, however, publicly adopt the CT Modernization Document. Defendant therefore did not waive the deliberative process privilege and properly invoked FOIA Exemption 5 to withhold the CT Modernization Document.

C. Plaintiff's “Claim” That Defendant Failed To Make A Timely Determination Is Moot.

Generally, when an agency “does not adhere to FOIA's explicit timelines” to make a “determination,” the “ ‘penalty’ is that the agency cannot rely on” FOIA's “administrative exhaustion requirement to keep cases from getting into court.” See Citizens for Resp. and Ethics in Washington v. FEC, 711 F.3d 180, 189 (D.C. Cir. 2013) (“CREW”). “[T]he impact of blowing” FOIA's “deadline relate[s] only to the requester's ability to get into court.” Elec. Privacy Info. Ctr. v. Dep't of Just., 15 F.Supp.3d 32, 41 (D.D.C. 2014) (citing CREW, 711 F.3d at 189). “[A]n agency's failure to comply with [FOIA's] statutory deadlines is” therefore “not an independent basis for a claim.” See Roseberry-Andrews v. Dep't of Homeland Sec., 299 F.Supp.3d 9, 20 (D.D.C. 2018); see also Conley v. U.S. Immigr. and Customs Enf't, No.: 3:23-CV-128, 2024 WL 4254330, at *5 (E.D. Tenn. Sept. 20, 2024) (noting that other than the ability to constructively exhaust, FOIA “does not provide further remedies” for failure to adhere to FOIA's determination deadline).

With a caveat inapplicable here, FOIA cases “become moot once an agency has made available requested, non-exempt records.” Judicial Watch, Inc. v. U.S. Dep't of Homeland Sec., 895 F.3d 770, 777 (D.C. Cir. 2018) (citation omitted); see also CREW, 711 F.3d at 184 (explaining that an agency's subsequent response and production did not render the case moot only because the plaintiff raised substantive challenges to the production). At that point, “it is impossible for a court to grant any effectual relief whatever.” See Sack v. Cent. Int. Agency, No. 15-5300, 2016 WL 6238503, at *1 (D.C. Cir. Sept. 16, 2016) (quoting Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 161, 136 S.Ct. 663, 193 L.Ed.2d 571 (2016)).

Here, because Defendant (1) conducted an adequate search, (2) produced non-exempt documents, and (3) properly invoked Exemption 5 for the CT Modernization Document, no other independent “claim” remains. In resisting this conclusion, Plaintiff points to two (2) cases: Seavey v. Department of Justice ² and Donham v. U.S. Department of Energy.³ But those cases are inapposite. They involved summary judgment motions where the relevant agency had not completed the plaintiff's FOIA request. See Seavey, 266 F.Supp.3d at 245 (noting that “[e]ven as of” the day of the opinion, the defendant agency had not made a determination on Plaintiff's request); Donham, 192 F.Supp.2d at 879 (“To date, as far as this Court knows, neither of Plaintiffs’ FOIA requests has been completed.”). This action is materially different. Unlike Seavey and Donham, no controversy remains for the Court to resolve. Therefore, whatever remains of this action is moot.

III. Conclusion

Accordingly, the Court GRANTS Defendant Tennessee Valley Authority's “Motion for Summary Judgment” [Doc. 35]; and DISMISSES this action. An appropriate judgment shall enter.

SO ORDERED.

FOOTNOTES

1.   Plaintiff also filed a “Motion for Summary Judgment” [Doc. 28]. And the Parties cross-referenced their briefing for both motions without maintaining strict formalities [See Docs. 37 at 1, 38 at 1].

2.   266 F.Supp.3d 241 (D.D.C. 2017).

3.   192 F.Supp.2d 877 (S.D. Ill. 2002).

KATHERINE A. CRYTZER, United States District Judge