When a new President is elected, a “transition team” is formed to begin the process of handing over power from the old administration to the new. As part of this process, members of the transition team interact with the staffs of federal agencies. In early December 2016, a member of the presidential transition team contacted the Department of Energy staff with questions on a variety of topics (“Questionnaire”), including a request for the names of DOE employees who had attended certain meetings regarding climate change. After versions of the Questionnaire leaked to the press, the transition team disavowed it.

On April 27, 2017, plaintiff, the Protect Democracy Project, Inc. filed this lawsuit against the U.S. Department of Energy in the U.S. District Court for the District of Columbia. The plaintiff sought injunctive relief compelling compliance with the Freedom of Information Act (FOIA) 5 U.S.C. § 552. The plaintiff is a nonpartisan nonprofit organization whose focus is on informing the public of operations and activities of the government by gathering and disseminating information likely to contribute significantly to the public understanding of executive branch operations and activities.

On February 15, 2017, the plaintiff sent a FOIA request to the defendant seeking (1) records between employees of the defendant regarding the Presidential Transition Team Questionnaire about climate change, and (2) records regarding personnel changes, new personnel assignments and related policies by or between Department of Energy employees and the Executive Office or Presidential Transition Team. Pursuant to FOIA, the defendant was required to determine whether they would be able to comply with the request and notify the plaintiff as such within 20 days of receiving the request (March 17, 2017). By the date the plaintiff filed the complaint, no such determination had been made.

On October 12, 2017, District Judge Timothy J. Kelly ordered the parties to confer and propose a schedule for proceeding in the matter, including address the status of the plaintiff’s FOIA request and the anticipated dates for release of the requested documents. On October 26, 2017, the parties submitted a joint status report to the court. According to the report, the defendant had completed three partial productions, one on June 23, 2017, one on August 31, 2017, and one on October 26, 2017. The defendant anticipated a final release of responsive records on or before December 1, 2017.

On December 15, 2017, the parties filed a second joint status report. The defendant had completed its release to the plaintiff of all responsive, non-exempt records subject to FOIA; however, the plaintiff intended to challenge the adequacy of the defendant’s search and its withholding of information under exemptions to FOIA. The parties agreed to resolve these issues through dispositive motions. On February 16, 2018, the defendant filed a motion for summary judgment, and on March 20, 2018, the plaintiff filed a cross-motion for summary judgment.


On September 17, 2018, Judge Kelly granted in part and denied in part each party’s motions for summary judgment. 330 F.Supp.3d 515. He agreed with the plaintiffs that the defendant had not undertaken an adequate search in response to the plaintiff’s first request (relating to the Questionnaire) because the defendant had searched the files of only one custodian. Therefore, he ordered the defendant to conduct an additional search that encompassed the files of additional custodians. Judge Kelly also found that the defendant’s withholdings under FOIA exemptions were properly invoked, except as to the defendant’s response to the Transition Team’s Questionnaire. He ordered the parties to file status reports as they conferred about the renewed searches and disclosures.

The parties have since filed four joint status reports, with the most recent one being filed on February 22, 2019. According to the report, the defendant released six responsive, non-exempt records to the plaintiff from a supplemental search of the plaintiff’s first FOIA request (relating to the Questionnaire) on January 7, 2019. The report also stated that the defendant was preparing to make a discretionary, supplemental release of certain previously withheld information by March 8, 2019. Judge Kelly, in light of this status report, ordered the parties to file another joint status report by March 25, 2019. The case is still ongoing.

Robert Carnes - 11/16/2017
Lisa Limb - 03/23/2019


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