Andrus v. US Department of Energy

Filing 24

MEMORANDUM DECISION AND ORDER granting in part and denying in part 11 Motion for Summary Judgment; granting in part and denying in part 15 Motion for Summary Judgment. The Court understands from informal communications that Court staff had with counsel after the hearing that Defendant will be able to provide the Court with the documents for in camera review in short order. Accordingly, counsel for Defendant shall provide the Court with the documents within one week of the date of this Order. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
CECIL D. ANDRUS,
Case No. 1:15-cv-453-BLW
Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.
UNITED STATES DEPARTMENT OF
ENERGY,
Defendant.

INTRODUCTION
Before the Court is Defendant’s Motion for Summary Judgment and Plaintiff’s
Cross-Motion for Summary Judgment. This case arises from a Freedom of Information
Act request submitted by the Plaintiff, former Idaho Governor Cecil D. Andrus, to the
Defendant United States Department of Energy.
BACKGROUND
On January 22, 2015, Andrus submitted a FOIA request to the DOE seeking
“copies of all communication between any officials of the United States Department of
Energy and any official in the state [sic] of Idaho that is in any way related to a ‘waiver’
of the state [sic] of Idaho’s 1995 settlement agreement (the so called Batt Agreement)
with the Department of Energy.” FOIA Letter, ¶ 1, Dkt. 11-5. The “Batt Agreement” is a
1995 settlement agreement negotiated between the State of Idaho, the Department of

MEMORANDUM DECISION AND ORDER - 1

Energy, and the United States Navy. Batt Agreement, Dkt. 11-5, Ex. A). The Batt
Agreement governs the treatment and disposal of nuclear waste in Idaho at the Idaho
National Laboratory (“INL”) through the year 2035. Id. Andrus submitted the FOIA
request in response to concerns over negotiations between the State of Idaho and DOE
regarding a possible waiver of some of the State’s rights under the Batt Agreement. In
2011, the DOE and the State of Idaho initiated a Memorandum of Agreement (“MOA”)
that addressed certain conditions under which Idaho could waive its rights under the Batt
Agreement, which would allow DOE to send certain quantities of spent nuclear fuel from
commercial power plants to the INL. Subsequently, in December 2014, the DOE
expressed a desire to conduct tests of commercial spent nuclear fuel from various
sources, and determined that the INL was its best option for the tests. The DOE, pursuant
to the 2011 MOA, requested “conditional approval” from the State of Idaho officials for a
waiver of the Batt Agreement. The waiver would allow two proposed shipments of
commercial spent nuclear fuel to be sent to the INL. Andrus submitted his FOIA request
one month later.
On March 18, 2015, Andrus agreed to narrow the scope of his request to include
only those documents he originally requested that “relate to the December 2014 request”
from DOE to Idaho Governor Otter and Idaho Attorney General Lawrence Wasden
seeking a waiver “of paragraph D.2.e of the 1995 Settlement agreement,” which “prohibit
DOE from shipping commercial spent nuclear fuel to INL (with one exception not
relevant here).” See Letter from Laird Lucas to Shonda Humphrey, DOE, March 18,

MEMORANDUM DECISION AND ORDER - 2

2015, Dkt. 11-5, Ex. 2. Andrus also agreed that the search would be limited to the time
period between January 1, 2012, and January 22, 2015. See E-Mail from Laird Lucas to
Shonda Humphrey, DOE, April 28, 2015, Dkt. 11-5, Ex. 3. It wasn’t until July 10, 2015
that the DOE sent “a final response” for four of the five offices within DOE from which
documents were collected, but stated that the fifth office would respond separately.
Included in the DOE response was a letter and an index of the forty-one documents
released under the FOIA request. Letter from Alexander C. Morris to Cecil D. Andrus,
July 10, 2015, Dkt. 11-5, Ex. 4.
Of those forty-one documents initially released, the DOE had redacted information
from thirty of the documents under Exemption 5 of FOIA. See Vaughn Index, December
18, 2015, Dkt. 16. 5. Exemption 5 of FOIA protects “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 agency specifically
stated that the information was redacted to protect three specific privileges: the
deliberative process privilege (executive), attorney-client privilege, and attorney work
product privilege.
Dissatisfied with the information provided by DOE, Andrus filed an
administrative appeal with the DOE’s Office of Hearings and Appeals. Andrus alleged
the DOE had not sufficiently disclosed the reasoning behind its redactions in the
documents released. The appeal requested that the DOE either “release all of the
information withheld under Exemption 5” or “provide specific descriptions of the

MEMORANDUM DECISION AND ORDER - 3

material withheld from each redacted document, the consequences of releasing those
materials, and why disclosing the information is not in the public interest.” See Letter
from Laird Lucas to Director Marmolejos, August 10, 2015, Dkt. 11-5, Ex. 5.
On August 20, 2015, the DOE Office of Hearings and Appeals denied Andrus’s
appeal, stating that the decision was “a final order of the Department of Energy from
which any aggrieved party may seek judicial review pursuant to the provisions of 5
U.S.C. § 552(a)(4)(B).” The order held that the DOE had provided sufficient information
for Andrus to understand the DOE’s basis for withholding information under Exemption
5 by agency standards, and that the release of the documents “could cause the harm of
chilling open and frank discussions, limit government personnel's range of options to
consider, and thus detract from the quality of Agency decisions.” Letter from Alexander
C. Morris to Cecil D. Andrus, July 10, 2015, Dkt. 11-5, Ex. 4. Andrus filed an initial
Complaint with the Court on September 29, 2015. See generally Compl. Dkt. 1.
The Complaint sought relief under FOIA, alleging that the DOE’s redactions
under Exemption 5 were unlawfully invoked and unjustified, amounting to a FOIA
violation under 5 U.S.C § 522(a). Compl. ¶ 43-44. The Complaint also sought a second
claim under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., and the
Declaratory Judgment Act, 28 U.S.C. § 2201 et seq. Andrus alleges that the “failure and
refusal to release the requested information in the public’s interest violates its own
regulations” and is “arbitrary, capricious, an abuse of discretion, not in accordance with

MEMORANDUM DECISION AND ORDER - 4

the law and constitutes agency action unlawfully withheld or unreasonably delayed under
the APA.” Compl. ¶ 46.
On October 5, 2015, DOE disclosed an additional thirty-eight documents from the
fifth and final DOE office. Similar to the July 10 disclosure, thirty-three of the responsive
documents were redacted under FOIA Exemption 5, citing the deliberative process
privilege, the attorney-client privilege, and the attorney work product privilege as the
specific reasons for exemption. See Letter from Alexander C. Morris to Cecil D. Andrus,
Dkt. 11-5, Ex. 6.
Andrus did not seek an administrative appeal following the second release of the
thirty-eight documents. Instead, Andrus filed an Amended Complaint with the Court on
October 19, 2015. See Am. Compl. The Amended Complaint incorporated the October 5
release of documents and cited DOE’s redactions as insufficiently justified and therefore
in violation of FOIA and the APA. Id. at ¶ 44-49. Andrus also amended his complaint to
allege an additional claim for a failure to timely respond to his FOIA request, in addition
to the unlawful application of FOIA exemptions claim and the APA claim. Id. ¶ 50-61
(emphasis added).
Most recently, DOE made a third disclosure on April 8, 2016, of eight documents
that had previously been withheld. Pl.’s Reply at 7. This disclosure was apparently in
response to plaintiff’s assertion in his Response Brief that DOE had not turned over all
relevant documents, although the DOE characterizes the release as a “discretionary
release.” Def’s Reply at 10, fn. 5.

MEMORANDUM DECISION AND ORDER - 5

DOE filed a motion for summary judgment seeking an order 1) dismissing
Andrus’s claim that DOE failed to timely respond to his FOIA claim as moot, 2)
dismissing Andrus’s APA claim because FOIA provides an adequate remedy, and 3)
grant summary judgment on Andrus’s claim challenging the agency’s withholdings under
Exemption 5. See generally Def’s Br. Dkt. 11-1. Andrus subsequently filed CrossMotions for Summary Judgment for all three Claims for Relief on the basis that 1) DOE’s
untimely response to Andrus’s FOIA request was a violation of the statute, 2) DOE failed
to carry its burden of proof regarding the Exemption 5 redactions, and 3) DOE’s failure
to release all relevant documents in the “public interest” under its own regulations was a
violation of the APA. See generally Pl’s Resp. Dkt. 15-1.
LEGAL STANDARD
Summary judgment is appropriate where a party can show that, as to any claim or
defense, “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). One of the principal purposes of the
summary judgment “is to isolate and dispose of factually unsupported claims . . . .”
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is “not a disfavored procedural
shortcut,” but is instead the “principal tool[ ] by which factually insufficient claims or
defenses [can] be isolated and prevented from going to trial with the attendant
unwarranted consumption of public and private resources.” Id. at 327. “[T]he mere
existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477

MEMORANDUM DECISION AND ORDER - 6

U.S. 242, 247-48 (1986). There must be a genuine dispute as to any material fact – a fact
“that may affect the outcome of the case.” Id. at 248.
When cross-motions for summary judgment are filed, the Court must
independently search the record for factual disputes. Fair Housing Council of Riverside
County, Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001). The filing of crossmotions for summary judgment – where both parties essentially assert that there are no
material factual disputes – does not vitiate the court’s responsibility to determine whether
disputes as to material fact are present. Id.
The moving party bears the initial burden of demonstrating the absence of a
genuine dispute as to material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.
2001)(en banc). To carry this burden, the moving party need not introduce any
affirmative evidence (such as affidavits or deposition excerpts) but may simply point out
the absence of evidence to support the nonmoving party’s case. Fairbank v. Wunderman
Cato Johnson, 212 F.3d 528, 532 (9th Cir.2000).
This shifts the burden to the non-moving party to produce evidence sufficient to
support a jury verdict in her favor. Deveraux, 263 F.3d at 1076. The non-moving party
must go beyond the pleadings and show “by her [ ] affidavits, or by the depositions,
answers to interrogatories, or admissions on file” that a genuine dispute of material fact
exists. Celotex, 477 U.S. at 324.
However, the Court is “not required to comb through the record to find some
reason to deny a motion for summary judgment.” Carmen v. San Francisco Unified Sch.

MEMORANDUM DECISION AND ORDER - 7

Dist., 237 F.3d 1026, 1029 (9th Cir. 2001) (quotation omitted). Instead, the “party
opposing summary judgment must direct [the Court’s] attention to specific triable facts.”
Southern California Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003).
In FOIA cases, “Courts are permitted to rule on summary judgment…solely on the
basis of government affidavits describing the documents sought.” Lion Raisins v. United
States Dep’t of Agriculture, 354 F. 3d 1072, 1082 (9th Cir. 2004). The government has
the burden of defending its actions and ordinarily “the government must submit detailed
public affidavits identifying the documents withheld, the FOIA exemptions claimed, and
a particularized explanation of why each document falls within the claimed exemption.”
Id. Such submissions must be “detailed enough for the district court to make a de novo
assessment of the government’s claim of exemption.” Id.
ANALYSIS
1. Exhaustion
DOE alleges that Andrus did not fully exhaust his administrative remedies
regarding the October 5, 2015 FOIA disclosure. Because DOE asserts that exhaustion is a
jurisdictional requirement, the Court shall address that issue first. It is undisputed that
Andrus exhausted his administrative remedies pertaining to the documents released on
July 10, 2015. However, DOE did not have the same opportunity to fully review the
thirty-eight documents belatedly disclosed by DOE on October 5, 2015. Andrus had
already initiated this litigation regarding the July 10, 2015 documents when DOE
released the final documents in October. See generally Compl. After Andrus received the

MEMORANDUM DECISION AND ORDER - 8

October documents, he did not file a second appeal to the DOE Office of Hearings and
Appeals. Instead, Andrus amended his initial complaint to reflect the newly obtained
documents. See Am. Compl ¶ 44-46. Thus, the DOE Office of Hearings and Appeals did
not have an opportunity to review the thirty-eight documents belatedly released on
October 5, 2015.
Of preliminary concern to the Court is the contention that there is a split among
the United States Court of Appeals regarding the issue of whether exhaustion under
FOIA is a jurisdictional requirement, or rather “a prudential consideration that the court
takes into account in determining whether to exercise subject matter jurisdiction.”
McDonnell v. United States, 4 F. 3d 1227, 1240 at fn. 9. (3rd Cir. 1993). Significantly,
the FOIA statute does not expressly require exhaustion, but instead merely implies that it
is otherwise required:
Any person making a request to any agency for records under paragraph
(1), (2), or (3) of this subsection shall be deemed to have exhausted his
administrative remedies with respect to such request if the agency fails to
comply with the applicable time limit provisions of this paragraph.
5 U.S.C. s 552(a)(6)(C). Certainly the statute contemplates that exhaustion will be
required by the Courts, but does not expressly mandate it.
DOE argues that the Ninth Circuit addressed the FOIA exhaustion issue thirty
years ago in In re Steele, 799 F. 2d 461, 465 (9th Cir. 1986) and concluded that
exhaustion is jurisdictional. In Steele, the Ninth Circuit stated that “exhaustion of a
parties’ administrative remedies is required under the FOIA before that party can seek
judicial review.” The Steele Court ultimately held, “where no attempt to comply fully
MEMORANDUM DECISION AND ORDER - 9

with agency procedures has been made, the courts will assert their lack of jurisdiction
under the exhaustion doctrine.” Id. at 466. DOE, along with some other courts, cite this
language for the proposition that exhaustion is a jurisdictional requirement that otherwise
divests the courts of discretion to entertain a party’s claim. See Hull v. I.R.S., U.S Dept. of
Treasury, 656 F. 3d 1174, 1181–82 (10th Cir. 2011) (ultimately concluding FOIA
exhaustion is not a jurisdictional requirement); see also San Luis & Delta-Mendota Water
Authority v. U.S. Department of the Interior, 2016 WL 80631 at *4 (E.D. Cal. Jan. 7,
2016) (court undecided whether In re Steele conclusively makes FOIA exhaustion
jurisdictional).
However, the Court is not convinced that the Ninth Circuit would reach that same
conclusion today – especially if confronted with the issue in a more straight-forward
FOIA context. It should first be noted that despite the previously stated language in
Steele, the Steele Court still entertained (although ultimately rejected) the petitioner’s
argument that the “futility exception to the exhaustion doctrine should apply.” In re
Steele, 799 F. 2d at 466. The “futility exception” applies when a party has failed to
exhaust its administrative remedies, but to do so would not “further the purposes
underlying the doctrine of exhaustion.” Id. If exhaustion was strictly jurisdictional, the
Ninth Circuit would have had no need to address the issue of the “futility exception” at
all. In that sense, In re Steele actually supports a conclusion that exhaustion is a
jurisprudential doctrine, rather than a jurisdictional one.

MEMORANDUM DECISION AND ORDER - 10

In fact, a majority of circuits have expressly held that the FOIA exhaustion
requirement is a “jurisprudential” doctrine because FOIA “does not unequivocally make
the exhaustion requirement jurisdictional.” See Hull, 656 F. 3d at 1182; Hidalgo v. F.B.I.,
344 F.3d 1256, 1258 (D.C. Cir. 2003) (FOIA exhaustion is a jurisprudential doctrine);
Hedley v. United States, 594 F.2d 1043, 1044 (5th Cir.1979) (explaining that FOIA does
“not expressly require that a claimant exhaust his administrative remedies prior to
requesting judicial relief”); Matter of Lawrence, 4 F.3d 996 (table), 1993 WL 360952 at
*2 n. 3 (7th Cir.1993) (unpublished) (“Exhaustion, however, is not jurisdictional in FOIA
cases, so we reach the merits now rather than requiring exhaustion which would
ultimately be futile.”). For lack of unequivocal language in FOIA otherwise requiring
exhaustion for purposes of subject matter jurisdiction, the Court therefore considers
exhaustion under FOIA a jurisprudential requirement.
Whereas Andrus’s failure to exhaust his administrative remedies pertaining to the
October 5, 2015 DOE documents does not divest the Court of jurisdiction, it must
nevertheless consider the underlying purposes of exhaustion when determining DOE’s
cross motion for summary judgment. The doctrine of exhaustion is intended to allow the
agency to “exercise its discretion and expertise and the opportunity to make a record for
the district court to review.” In re Steele, 799 F. 3d at 466. Exhaustion is generally
intended to prevent “premature interference with agency processes. . . afford[ing] the
parties and the courts the benefit of [the agency's] experience and expertise. . . [or]
compil[ing] a record which is adequate for judicial review.” Hidalgo, 344 F. 3d at 1259.

MEMORANDUM DECISION AND ORDER - 11

Specifically in cases where an agency’s use of FOIA’s subsection (b) exemptions are at
issue, “[the agency] should be allowed to submit to the district court a detailed affidavit
describing how disclosure would risk harm or seek an in camera review of the documents
by the district court.” Id. (citing Hardy v. Bureau of Alcohol, Tobacco, & Firearms, 631
f. 2d 653, 657 (9th Cir. 1980)).
The Court is sympathetic to Andrus’s argument that the DOE is unlikely to have
significantly altered its redactions had Andrus actually initiated an administrative appeal
following the October 5, 2015 disclosure. As demonstrated by the documents the DOE
released in their “discretionary” disclosure on April 8, 2015, the DOE seemingly took a
liberal interpretation of FOIA’s subsection (b) exemptions. See generally April 8, 2015
Disclosure, Dkt. 22-2. Also, as discussed in greater detail below, the Vaughn index and
affidavit provided as justification for their use of the exemptions are conclusory and
inadequate. See Vaughn Index, December 18, 2015, Attach. D., Dkt. 16 at 1-12; Aff.
Alexander C. Morris, Dkt. 19-2. However, the Court should not engage in guesswork,
and the underlying policy considerations of the doctrine of exhaustion require the Court
to dismiss Andrus’s claim regarding the October 5, 2015 documents to be further
reviewed by the DOE. Ultimately, judicial resources are best conserved when an agency
conscientiously reviews its own documentation for privileged information. See In re
Steele, 799 F. 2d at 466; see also Lion Raisins v. U.S. Dept. of Agriculture, 354 F. 3d
1072, 1082 (9th Cir. 2004). While merely a jurisprudential doctrine, the underlying

MEMORANDUM DECISION AND ORDER - 12

policy of exhaustion—to provide the agency an opportunity to review its own decisionmaking process before judicial intervention—must still carry the day.
Hopefully, the DOE, given an opportunity to review the October 5, 2015
documents, will make a concerted effort to ensure the subsection (b)(5) redactions have
been used as narrowly as intended. Furthermore, where the DOE ultimately determines
such redactions are justified, it should provide a detailed and unambiguous Vaughn index,
unlike those documents that were provided for the Court in this proceeding. Keeping in
mind 10 C.F.R § 1004.1, the DOE should also consider whether the information is in the
“public interest.” But because the agency has not had the opportunity to implement a
review of its FOIA redactions pertaining to the October 5, 2015 documents, the Court
must grant DOE’s Motion for Summary Judgment and dismiss Andrus’s FOIA claims
regarding the October 5, 2015 documents without prejudice.
2. Mootness
DOE seeks summary judgment on Andrus’s First Claim for Relief on the premise
that the claim is moot. Andrus’s First Claim for Relief is for a “failure to timely respond
to FOIA Request.” Am. Compl. at ¶ 50-56. Andrus conceded in oral argument that all
responsive documents, to his knowledge, have been disclosed. A claim is moot “when the
issues presented are no longer “live or the parties lack a legally cognizable interest in the
outcome.” Chafin v. Chafin, 133 S. Ct. 1017, 1023 (2013). This does not preclude Andrus
from pursuing the Second Claim for Relief that DOE has applied an unlawful application

MEMORANDUM DECISION AND ORDER - 13

of FOIA exemptions. See Am. Compl. at ¶ 57–59. DOE’s motion for summary judgment
for the First Claim for Relief will be granted.
3. Exemption 5 of the Freedom of Information Act
Both parties seek summary judgment on the issue of whether DOE has provided a
sufficient basis for claiming Exemption 5 redaction privileges. For the foregoing reasons,
the Court does not find the affidavit and Vaughn index provided by DOE sufficient to
grant either party’s Motion for Summary Judgment at this time. The Court will therefore
exercise its discretion under section 552(a)(4)(B) and conduct an in camera review of the
documents to ensure the underlying material is properly redacted.
FOIA became law in 1946 as part of the Administrative Procedure Act, but was
amended in 1966 to further implement a “general philosophy of full agency disclosure.”
S. Rep. No. 813, 89th Cong., 1st Sess., 3 (1965). When furnished with a reasonable
request for records, the Act requires agencies to make such records “promptly available
to any person.” 5 U.S.C. § 552(a)(3)(A). Should an agency withhold any documents, “the
district court of the United States . . . has jurisdiction to enjoin the agency from
withholding agency records and to order any agency records improperly withheld from
the complainant.” §552(a)(4)(B).
Subsection (b) of FOIA provides for nine “exemptions” to the otherwise “broad”
policy that favors disclosure. Fed. Bureau of Investigation v. Abramson, 456 U.S. 615,
630 (1982). These exemptions are an attempt to balance the limited interests of
government agencies to maintain sensitive and confidential information. See Dep’t. of Air

MEMORANDUM DECISION AND ORDER - 14

Force v. Rose, 425 U.S. 352, 361 (1976). However, the United States Supreme Court
recognizes “these exemptions are explicitly made exclusive . . . and must be narrowly
construed.” Id. An agency may withhold only that information to which the exemption
applies, and so must provide all “reasonably segregable” portions of that record to the
requester. Yonemoto v. Dep’t. Of Veterans Affairs, 686 F. 3d 681, 688 (9th Cir. 2011). In
the event of nondisclosure, such as under subsection (b) of the Act, “the burden is on the
agency to sustain its action” and may be subject to an in camera review to ensure
compliance. Id. In camera review is appropriate “only after the government has
submitted as much detail in the form of public affidavits and testimony as possible.” Lion
Raisins, 354 F. 3d at 1083. However, the justification does not need to go so far that the
disclosure would “undermine the very purpose of its withholding.” Id. at 1084.
Subsection (b)(5) excludes from disclosure “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). As such, the exemption
“contemplates that the public is entitled to all such memoranda or letters that a private
party could discover in litigation with the agency.” N.L.R.B v. Sears, Roebuck & Co., 421
U.S. 132, 150 (1975). The exemption applies to generally recognized privileges such as
the executive privilege, the attorney-client privilege, and the attorney work-product
privilege. Id. at 149.
All thirty of the July 10, 2015 DOE documents that were redacted under
Exemption 5 are emails. See generally Vaughn Index, December 18, 2015, Dkt. 16. All

MEMORANDUM DECISION AND ORDER - 15

but ten of the redacted documents were emails sent to four or more recipients and may be
considered “email chains.” See Attachment A: July 2015 documents, Dkt. 16-2. In all
cases, the headers of the emails are visible so that one may view who the emails were
sent from, who they were sent to, and the subject line. Id. The contents of those
documents have been redacted to varying degrees. Id.
In order to support their redactions, DOE submitted a Vaughn index and an
affidavit from the FOIA Officer in the DOE Office of Information Resources (OIR). See
Vaughn Index, December 18, 2015, Attach. D., Dkt. 16 at 1-12; Aff. Alexander C. Morris,
Dkt. 19-2. The Vaughn index is composed of eight columns that identify the document
number, the date of origin, the author of the document, the recipients of the document, a
brief description of the subject matter, the number of pages of each document, the basis
for the (b)(5) redaction, and then a brief description of the reason behind the redaction.
Vaughn Index, December 18, 2015, Attach. D., Dkt. 16 at 1. DOE has not identified the
title or “authority” of the individuals involved. See generally, Id. However, Andrus has
not contested that the emails are “exclusively between DOE employees” and thus fall
under the “inter-agency or intra-agency” requirement of Exemption 5. Def’s. Br. at 12.
All of the “Redaction Reason” responses are nearly identical. Take for example
the description of document NE-2: “The material redacted in these emails is both predecisional and deliberative, reflecting discussions regarding SNF rods and
electrochemical recycling projects.” Vaughn Index, December 18, 2015, Attach D., Dkt.
16 at 1. Every document rationale restates that “The material redacted in these emails is

MEMORANDUM DECISION AND ORDER - 16

both pre-decisional and deliberative, reflecting discussions regarding. . .” and then states
the subject matter of the email. Vaughn Index, December 18, 2015, Attach D., Dkt. 16 at
1-12. There are seven documents that in addition to the deliberative process privilege,
also claim attorney-client privilege, attorney work product privilege, or all three. Id. In
these instances, DOE merely adds language to the “Redaction Reason” column analogous
to the response given in document CI-1: “Some material is also redacted as privileged
attorney-client communication.” Id. at 8. No further basis asserting the attorney-client
privilege or the attorney work product privilege is given. There is no way to determine
which portions of the seven “multi-privilege” documents are claimed under which
privilege, although all three are equally applicable under FOIA exemption (b)(5).
The affidavit of Alexander C. Morris states generally that an analyst in OIR was
assigned to Andrus’s FOIA request to identify information “not exempt from disclosure
or for which a discretionary waiver of exemption could be applied,” and that the
information redacted “has been reviewed to ensure that all reasonably segregable
information has been released to the Plaintiff.” Aff. of Alexander C. Morris, May 2, 2016,
Dkt. 19-2 at ¶4. Paragraph 5 states:
Exemption 5 Deliberative Process Privilege: Exemption 5 incorporates the
deliberative process privilege, which protects recommendations, advice,
and opinions that are part of the process by which agency decisions and
policies are formulated. The information withheld under Exemption 5’s
deliberative process privilege consists of email chain discussions on the
negotiations related to the proposed shipments of commercial spent nuclear
fuel (SNF) and other DOE projects and proposals; draft versions of
documents, including the Dominion Title Transfer Agreement; and internal
briefing memoranda related to negotiations with the State of Idaho
regarding the proposed commercial SNF shipments.
MEMORANDUM DECISION AND ORDER - 17

Id. at ¶ 5. Paragraph 6 then states that “the withheld materials do not represent final
agency action and their release would have a chilling effect on the ability of DOE staff to
have open and frank discussions. . . .” Id. at ¶ 6. Paragraph 7 addresses the attorney-client
privilege, and states that “the withheld information consists of legal advice sought by
DOE program staff from [DOE Office of General Counsel (GC)] and legal advice
provided by GC regarding negotiation strategy. . . .” Id. at ¶ 7. Paragraph 8 similarly
applies to the attorney work product privilege.
Through this understanding of FOIA Exemption 5, the documents disclosed on
July 10, 2015, and the DOE Vaughn index and FOIA officer affidavit provided to justify
the agency’s redactions, the Court may determine as a matter of law whether the DOE
was justified in its redactions, or whether further scrutiny may be needed.
A.

Deliberative Process Privilege

Andrus’s primary challenge to the Exemption 5 redactions is that the DOE has
applied the privilege in an overly broad manner, whereas DOE seeks Summary Judgment
that the redactions are justified. Although it is possible that the redacted information is
properly exempted under the privilege, “the burden is on the agency to sustain its action.”
Yonemoto, 686 F. 3d at 688. The DOE’s conclusory Vaughn index descriptions and FOIA
officer affidavit do not provide the Court with adequate information to carry the agency’s
burden.
The purpose of the deliberative process privilege is to “allow agencies freely to
explore possibilities, engage in internal debates, or play devil's advocate without fear of
MEMORANDUM DECISION AND ORDER - 18

public scrutiny.” Assembly of the State of Cal., 968 F. 2d at 920. This privilege applies to
documents that are both “predecisional and deliberative.” Id. A “predecisional” document
may include “recommendations, draft documents, proposals, suggestions, and other
subjective documents which reflect the personal opinions of the writer rather than the
policy of the agency.” Id. (citing Formaldehyde Inst. v. Dep’t of Health and Human
Services, 889 F. 2d 1118, 1122 (D.C. Cir. 1989). The Court may differentiate between
“predecisional communications, which are privileged . . . and communications made after
the decision and designed to explain it, which are not.” Sears, Roebuck & Co., 421 U.S.
at 152. A predecisional document is a part of the “deliberative process” if the disclosure
of the materials would “expose an agency's decisionmaking process in such a way as to
discourage candid discussion within the agency and thereby undermine the agency's
ability to perform its functions.” Id.
Context can be inferred from the twenty-three documents that DOE identifies as
exempted solely under the deliberative process privilege to suggest that they could be
predecisional and deliberative in nature, but the information provided in the DOE’s
Vaughn index and the FOIA officer affidavit is insufficient to make an affirmative
conclusion. Among the July 10 disclosure documents, there are essentially ten different
“primary topics” that the emails are discussing:
 Meeting and plans regarding SNF rods and electrochemical recycling
 Idaho Falls Register News Article*
 Letter Written to Governor Otter from Richard Provencher*

MEMORANDUM DECISION AND ORDER - 19

 Emails regarding Finnish Reactor material and the MOA for fuel shipments
 Discussions with the State and signature of Title Transfer
 Letter from Governor Otter to Secretary Moniz*
 Letter from Secretary Moniz to Governor Otter*
 An update for the Idaho Congressional Delegation*
 A Department of energy Idaho Operations Office Report (Jan. 20, 2015)*
 Preparations for General Klotz Delegation
Attachment A: July 2015 documents, Dkt. 16-2; Vaughn Index, December 18, 2015,
Attach D., Dkt. 16 at 1-12. Those topics marked with an asterisk (*) above denote email
chains relating to specific, underlying documents. For all such topics, the underlying
document was ultimately disclosed in its entirety, and the redactions likely correspond to
individual responses or suggestions that would ordinarily fall under the deliberative
process privilege.
However, because of the deficiencies in the DOE’s Vaughn index, the Court
cannot ascertain whether the documents truly reflect “recommendations, draft documents,
proposals, suggestions, and other subjective documents which reflect the personal
opinions of the writer rather than the policy of the agency” or otherwise. Assembly of the
State of Cal., 968 F. 2d at 920. The index does not identify the authority of the document
authors, and there is no way to determine whether the redacted information is
“deliberative” or may be considered more “factual” in nature. See id at 21 (“rule of thumb
favoring disclosure of factual documents, or the factual portions of deliberative

MEMORANDUM DECISION AND ORDER - 20

documents where separation is feasible”). Furthermore, the other four document topics
not denoted with an asterisk are entirely opaque and it is unclear what the nature of the
conversations truly were.
For example, redacted documents CI-3 through CI-6 involve a January 15, 2015
email chain sent to more than ten different recipients under the subject “Idaho Update.”
Attachment A: July 2015 documents, Dkt. 16-2 at 108-116. These documents were among
those belatedly released in the April 8, 2016 “discretionary” disclosure. April 8, 2015
Disclosure, Dkt. 22-2. In document CI-5, the email states that “the below is a good
update on where we are with the Idaho issue” and forwards on an email the author, Jaime
Shimek, had earlier sent to others—including an email assigned to the office of Idaho
Senator Mike Crapo. Id. at 10. Although the “update” is exactly what one would expect–
an entirely factual summary of the Batt Agreement negotiations as of January 15, 2015–
the emails were originally redacted in their entirety. Id. Not only is factual information
not protected under the Deliberative Process Privilege, the privilege would not apply
because it was sent to a Congressional Delegation. See 5 U.S.C. § 551(1). More troubling
still, the Vaughn index merely gave the boilerplate “Redaction Reason” described above,
stating that the emails involved “discussions on updates to the Idaho congressional
delegation and the delegation’s response to the update.” Vaughn Index, December 18,
2015, Attach D., Dkt. 16 at 9.
In finding that the DOE’s Vaughn index and affidavits are conclusory and
insufficiently detailed, the Court must conduct an in camera review of these documents

MEMORANDUM DECISION AND ORDER - 21

in order to sufficiently determine whether the deliberative process privilege has been
properly invoked, or whether further disclosure is ultimately appropriate.
B.

Attorney Client Privilege and Attorney Work Product Privilege

Both parties also seek Summary Judgment regarding the DOE’s invocation of the
attorney-client privilege and the attorney work product privilege. The Court will similarly
apply an in camera review of the relevant documents to determine whether the DOE’s
redactions were proper.
The attorney-client privilege protects confidential communications between clients
and counsel made for the purpose of obtaining or providing legal assistance. See In re
Grand Jury Proceeding, 721 F.2d 1221, 1222 (9th Cir. 1983). The work product doctrine
protects materials produced by an attorney—including by a government attorney—that
reflect the attorney’s mental impressions, opinions, or legal theories formed in
anticipation of litigation or in pre-litigation counseling. See Fed. R. Civ. P. 26(b)(3);
Sears, Roebuck & Co., 421 U.S. at 154. DOE’s Vaughn index states that there are 7
documents (NE-13, NE-15, NE-16, NE-20, NE-21, NE-22, CI-1) that fall under either the
attorney-client privilege or work product privilege (or both), in addition to the
deliberative process privilege. Vaughn Index, December 18, 2015, Attach D., Dkt. 16 at
4-8.
In camera review is required to analyze DOE’s assertion of attorney-client
privilege and work product privilege because 1) the information redacted under either
privilege is indistinguishable from the information redacted under the deliberative

MEMORANDUM DECISION AND ORDER - 22

process privilege and 2) because the titles of the authors and recipients are unknown and
the Vaughn index so nondescript, there is no way to establish how legal counsel is
implicated in any of the documents. Id. It is also persuasive that none of the documents
withheld under attorney-client privilege are labeled “confidential.” Id.
These lapses in DOE’s exemption justifications require a greater inquiry into the
contents of all the redacted documents. This order is consistent with FOIA’s underlying
“general philosophy of full agency disclosure.” S. Rep. No. 813, 89th Cong., 1st Sess., 3
(1965). Thus an in camera review shall be conducted regarding all of the July 10, 2015
documents.
4. Administrative Procedure Act
DOE seeks summary judgment on Andrus’s claim under the Administrative
Procedure Act (APA), whereas Andrus has filed a Cross-Motion seeking a Summary
Judgment in his favor as a matter of law. Def’s Br. at 7, Dkt. 11-1; Pl’s Resp. at 18, Dkt.
15-1.
The APA provides relief for “agency actions made reviewable by statute and final
agency action for which there is no other adequate remedy in a court. . . .” 5 U.S.C. §704.
Andrus argues that he has a claim under the APA because the DOE did not adhere to 10
C.F.R. § 1004.1, which requires the DOE to disclose documents “in the public interest.”
See 10 C.F.R § 1004.1. The regulation requires DOE to make a determination as to
whether disclosure was “in the public interest” and, if so, release the documents upon
request, even if the documents would otherwise be exempt from disclosure under FOIA.

MEMORANDUM DECISION AND ORDER - 23

Id. Under the APA, the Court may intervene if the agency action is found to be “arbitrary,
capricious, an abuse of discretion, [ ] otherwise not in accordance with law” or “without
observance of procedure required by law.” 5 U.S.C. § 706(2)(A), (F). The United States
Supreme Court recognizes that “the scope of review under the ‘arbitrary and capricious’
standard is narrow and a court is not to substitute its judgment for that of the agency.”
Motor Vehicle Mfrs. Ass’n of U.S. Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983). Nevertheless, the agency must examine the relevant data and articulate a
satisfactory explanation for its conduct, including a “rational connection between the
facts found and the choice made.” Burlington Truck Lines v. United States, 371 U.S. 156,
168 (1962). Andrus asks the Court to make a determination of whether the information is
“in the public interest,” whereas DOE asserts that the Court may not have jurisdiction to
entertain an APA claim under FOIA, and alternatively that it has met its duties under the
agency regulation. Def’s Reply, at 5-6, Dkt. 19.
The Court rejects the argument that it does not have jurisdiction under the APA to
review “final agency action for which there is no other adequate remedy” such as DOE’s
determination of whether documents are “in the public interest.” See Def’s Reply, at 5, fn.
3, Dkt. 19. DOE cites Minnesota v. DOE, No. 4-81-434, 1982 WL 1155, at *8 (D. Minn.
Dec. 14, 1982) in which the court held that there was “no such legislative grant of
authority under the Trade Secrets Act, 18 U.S.C. § 1905; Chrysler v. Brown, supra; nor
in the Administrative Procedures Act, 5 U.S.C. § 701.” Id. at *8. In reality, the Supreme
Court specifically recognized that an agency regulation was subject to review for an

MEMORANDUM DECISION AND ORDER - 24

abuse of discretion under the APA, even though it was not reviewable under the Trade
Secrets Act and in contravention of 18 U.S.C. § 1905. See Chrystler v. Brown, 441 U.S.
281, 317–18 (1979) (“Both Chrysler and the respondents agree that there is APA review
of DLA's decision. They disagree on the proper scope of review”). Under the plain
language of § 706 of the APA, the agency decision is reviewable so long as it is “final”
and there is no other adequate remedy. Accordingly, the Court may consider the APA
challenge.
DOE also seeks summary judgment on the basis that the relief sought under
Andrus’s APA claim is the same as that sought under the FOIA claim, and therefore
FOIA provides an “adequate remedy.” 5 U.S.C. § 704. The United States Supreme Court
has defined “adequate remedy” under § 704 as “situations where the Congress has
provided special and adequate review procedures.” Bowen v. Massachusetts, 487 U.S.
879, 903 (1988) (emphasis added). The Supreme Court has acknowledged that the
Congressional purpose of the APA was to “provide a general authorization for review of
agency action in the district courts” while still seeking to avoid “duplication” of judicial
remedies. Id.
Historically, most case law on this issue has precluded simultaneous FOIA and
APA claims because FOIA provided the plaintiffs an “adequate remedy.” See Rimmer v.
Holder, 700 F.3d 246, 261-63 (6th Cir. 2012); Cent. Platte Nat. Res. Dist. v. U.S. Dep’t
of Agriculture, 643 F.3d 1142, 1148-49 (8th Cir. 2011); Walsh v. U.S. Dep’t of Veterans
Affairs, 400 F.3d 535, 537-38 (7th Cir. 2005); Petrucelli v. Dep’t of Justice, 106 F. Supp.

MEMORANDUM DECISION AND ORDER - 25

3d 129, 134 (D.D.C 2015). However, all of the cases cited by DOE involve instances
where a FOIA requester has sought to challenge the sufficiency of FOIA exemptions
through an APA claim. See id., supra. There is no doubt that where a party is purely
seeking to challenge the sufficiency of an agency’s application of FOIA exemptions,
FOIA—not the APA—is the proper cause of action. However, merely challenging the
sufficiency of DOE’s subsection (b)(5) exemptions is not Andrus’s objective in the
present APA claim. Rather, Andrus’s APA claim asks DOE to disclose documents that
are in the “public interest,” regardless of whether a FOIA exemption applies. See Pl.’s
Resp. at 18-19, Dkt. 16; 10 C.F.R § 1004.1.
Section 1004.1 is highly unusual in that it places a duty upon DOE above and
beyond what is normally required under FOIA. Id. Section 1004.1 requires that DOE
“make records available,” even when it is “authorized to withhold” them under FOIA,
whenever it determines “such a disclosure is in the public interest.” Id. This regulation, in
essence, requires DOE to completely disregard FOIA subsection (b) when a request is in
the public interest. There is no provision under FOIA that requires the agency to consider
the general public interest, whereas that is the gravamen of § 1004.1. In this particular
instance, FOIA alone does not provide “special and adequate review procedures” by
which Andrus could ensure documents in the public interest should be released. For
example, there could be information properly redacted under a FOIA exemption which
includes information that the public has such a high interest in. In those circumstances,

MEMORANDUM DECISION AND ORDER - 26

the DOE would be required to disclose under 10 C.F.R § 1004.1. For that reason, DOE’s
argument fails.
During oral argument, Andrus sought APA relief as an alternative means for the
Court to review the October 5, 2015 documents disclosure, notwithstanding the FOIA
exhaustion doctrine. However, under the APA, the Court may only review “final” agency
actions for which there is no alternative remedy. See 5 U.S.C. §704. Because Andrus did
not file an administrative appeal for the October 5, 2015 documents, the DOE’s decision
cannot be “final” for purposes of APA relief. Id. The exhaustion requirement discussed
above is therefore still applicable under the APA, and relief may not be accorded at this
time. In fact, exhaustion is considered a “jurisdictional” requirement under the APA. See
Bowen v. Massachusetts, 487 U.S. 879, 903 (1988) (“primary thrust of § 704 was to
codify the exhaustion requirement. . .”).
Regarding the July 10, 2015 documents, however, the Court finds that the APA is
applicable. DOE’s determination of whether the information was in the “public interest”
is “arbitrary, capricious, or an abuse of discretion” and therefore in violation of the APA.
5 U.S.C. § 706(2)(A).
In both the letter provided to Andrus by the DOE OHA, as well as the affidavit of
the DOE FOIA officer, DOE asserted that it analyzed whether the public interest would
be served by disclosure. Letter from Alexander C. Morris to Cecil D. Andrus, July 10,
2015, Dkt. 11-5, Ex. 4; Aff. Alexander C. Morris, Dkt. 19-2 at ¶ 10-11. The relevant DOE
authorities found that the policy factors did not favor disclosure because doing so “could

MEMORANDUM DECISION AND ORDER - 27

cause the harm of chilling open and frank discussions [within the agency], limit
government personnel's range of options to consider, and thus detract from the quality of
Agency decisions.” Letter from Alexander C. Morris to Cecil D. Andrus, July 10, 2015,
Dkt. 11-5, Ex. 4. Whereas such an evaluation certainly underscores the underlying policy
of the FOIA (b)(5) exemption, such a determination has no bearing on whether the
information is in the “public interest” as required by 10 C.F.R § 1004.1. DOE’s
justification was nothing more than a recitation of the agency’s interest in non-disclosure.
The DOE affidavit and Vaughn index do nothing to address whether the redactions buried
information relating to substantive policy about the transport and storage of large
quantities of potentially dangerous nuclear waste, disclosure of which may very well be
in the public interest. Although the Court does not have authority to substitute its
judgment for that of the DOE, the Court will require the DOE to reevaluate the redacted
information that was responsive to Andrus’s FOIA request, and determine whether any
would relate to the public’s interest, rather than that of the agency itself. In the event
DOE determines information is not in the public interest, it should articulate justifications
in a highly detailed and specific manner, addressing the substance of the information, not
merely the policy underlying exemption.
Andrus has properly challenged the DOE’s decision-making process under the
APA and 10 C.F.R. § 1004.1. The Court therefore denies DOE’s Motion for Summary
Judgment and grants Andrus’s Cross-Motion for Summary Judgment on the Third Count
of Relief pursuant to the APA.

MEMORANDUM DECISION AND ORDER - 28

ORDER
IT IS ORDERED:
1.

Defendant’s Motion for Summary Judgment (Dkt. 11) is GRANTED in
part and DENIED in part as explained above.

2.

Plaintiff’s Motion for Summary Judgment (Dkt. 15) is GRANTED in part
and DENIED in part as explained above.

3.

The Court understands from informal communications that Court staff had
with counsel after the hearing that Defendant will be able to provide the
Court with the documents for in camera review in short order. Accordingly,
counsel for Defendant shall provide the Court with the documents within
one week of the date of this Order. If counsel have questions concerns with
this deadline, they may contact Jeff Severson at [phone].

DATED: August 8, 2016
_________________________
B. Lynn Winmill
Chief Judge
United States District Court

MEMORANDUM DECISION AND ORDER - 29