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Reply in Support of Motion for Partial Summary Judgment

Reply in Support of Motion for Partial Summary Judgment

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Published by: Southern Alliance for Clean Energy on Mar 14, 2012
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02/07/2014

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UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA
 SOUTHERN ALLIANCE FOR CLEANENERGY,Plaintiff,v.UNITED STATES DEPARTMENT OF ENERGY,Defendant.))))))))))))
 
Civil Action No. 10-1335 (RLW)
REPLY MEMORANDUM IN FURTHER SUPPORT OFDEFENDANT’S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT
Defendant, United States Department of Energy (“DOE” or “Agency”), properly appliedFOIA Exemption 4 to withhold portions of three non-binding Conditional Commitment Letterscontaining confidential commercial information obtained from three applicants seeking loanguarantees from DOE for the construction and operation of two new nuclear generating units.Through its submission of detailed declarations from the Director of the Origination Division of the Loan Programs Office at DOE and each of the three applicants, DOE carried its burden of demonstrating that the redacted portions in the term sheets contained commercial informationobtained from the applicants and that disclosure of the terms will likely result in substantialcompetitive injury to the applicants. In its response to Defendant’s cross-motion and reply insupport of its partial motion (“Pl.’s Opp’n & Reply”), Plaintiff contends that DOE’swithholdings are improper because the redacted information was not obtained from theapplicants and is not confidential. Plaintiff’s assertions are belied by the record. DOE hassufficiently justified its redactions pursuant to Exemption 4 of commercial and financialinformation in each of the three term sheets.
Case 1:10-cv-01335-RLW Document 19 Filed 04/26/11 Page 1 of 13
 
2There is, therefore, no need for the Court to conduct an
in camera
review of the withheldrecords, as Plaintiff urges, because there are no material facts in dispute that would prevent theentry of partial summary judgment for DOE.
1
 
See Am. Civil Liberties Union v. U.S. Dep’t of  Defense
, 628 F.3d 612, 626 (D.C. Cir. 2011) (“Although Congress provided district courts theoption to conduct
in camera
review under FOIA, the statute does not compel the exercise of thatoption.”). If, however, the Court finds it necessary to review the term sheets, DOE will producethem for
in camera
inspection upon request.For the reasons set forth in its opening brief and below, Defendant respectfully requeststhat the Court grant partial summary judgment in favor of DOE on the claims asserted withrespect to Item 6 of Plaintiff’s FOIA request and deny Plaintiff’s motion for partial summary judgment.
ARGUMENTI. DOE PROPERLY APPLIED EXEMPTION 4 TO REDACT TERMS OBTAINEDFROM THE LOAN GUARANTEE APPLICANTS
 It is well settled that agency-generated documents may fall within Exemption 4 if “theycontain summaries and reformulations of information supplied by a source outside thegovernment.”
 Judicial Watch, Inc. v. Exp.-Imp. Bank 
, 108 F. Supp. 2d 19, 28 (D.D.C. 2000)(citing
Gulf & W. Indus. v. United States
, 615 F.2d 527, 529-30 (D.C. Cir. 1979));
see Pub.Citizen Health Research Group v. NIH 
, 209 F. Supp 2d 37, 44-45 (D.D.C. 2002). Plaintiff 
1
The decision of whether to conduct
in camera
inspection is left to the broad discretion of thetrial judge.
Center for Auto Safety v.
 
 E.P.A.
, 731 F.2d 16, 20 (D.C. Cir. 1984). As a generalrule, “[i]f the agency’s affidavits ‘provide specific information sufficient to place the documentswithin the exemption category, if this information is not contradicted in the record, and if there isno evidence in the record of agency bad faith, then summary judgment is appropriate without
incamera
review of the documents.’”
 Larson v. Dep’t of State
, 565 F.3d 857, 869 (D.C. Cir. 2009)
 
(quoting
 Hayden v. N.S.A.
, 608 F.2d 1381, 1387 (D.C. Cir. 1979));
People for the Am. Way Fdn.v. Nat’l Park Serv.
, 503 F. Supp. 2d 284, 307 (D.D.C. 2007) (noting that
in camera
review isgenerally disfavored). Here, DOE has submitted detailed
Vaughn
indices and declarations thatpermit meaningful review of its Exemption 4 claims.
Case 1:10-cv-01335-RLW Document 19 Filed 04/26/11 Page 2 of 13
 
3contends that Exemption 4 does not apply to the term sheets because the Agency purportedly didnot attempt to show that the Applicants were the source of each redacted item, although it allowsthat the exemption may cover “the possible exception of the schedules attached to each TermSheet.” Pl.’s Opp’n & Reply at 6-9.The evidence squarely contradicts Plaintiff’s claim that DOE did not demonstrate that theApplicants were the source of the redacted items. Contrary to Plaintiff’s assertion that“[n]owhere in his declaration did Mr. Frantz claim that a specific term or condition . . . wasactually obtained from one of the Applicants,” David Frantz, Director of the OriginationDivision of LPO, directly addressed the source of the redacted terms or conditions in hisdeclaration. In his sworn testimony, Mr. Frantz explained that most of the terms and conditionsin the initial term sheet drafts offered to the Applicants were extensively negotiated, although afew of the initial terms remained unchanged and were subsequently incorporated into theConditional Commitment Letters.
See
Frantz Decl. ¶ 15. He identified the specific provisions of the initial terms that were not the subject of negotiations with Georgia Power, Oglethorpe, orMEAG, and were therefore deemed not to have been obtained from the Applicants:Georgia Power Conditional Commitment Letter: Sections 1, 6, 11, 12(Application Fee), 15, 18(d) and (g);Oglethorpe Conditional Commitment Letter: Sections 1, 11, 12 (Application Fee),15, Conditions Precedent to Initial Advance for Borrower 17(a), (g), (k), (
l
); andMEAG Conditional Commitment Letter: Sections 6, Conditions Precedent toFinancial Closing Date 17(h), (o), (t), (u), (cc), (dd), Conditions Precedent to EachAdvance 18(d), (e), (g), (j), and (k).
Case 1:10-cv-01335-RLW Document 19 Filed 04/26/11 Page 3 of 13

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