In a 28-page memorandum of opinion, dated Wednesday and signed by Chief Judge Royce C. Lamberth, the Department of Energy was directed to disclose to the Southern Alliance for Clean Energy documents related to the project’s credit subsidy cost estimates.
The group filed a Freedom of Information Act request in 2010 for the credit subsidy documents and a host of other information – and later filed a lawsuit when portions of the material were not provided.
The court questioned whether other material sought by the group was justifiably withheld and gave the Energy Department 60 days to supplement inadequate justification for why it either redacted – or refused to release – some of the information sought by the plaintiffs.
In a press release, the environmental group’s executive director, Stephen Smith, called the ruling positive news, but long overdue.
“We are particularly pleased that the court definitively ordered the Department of Energy to release the credit subsidy fee estimates, which essentially represents what ‘skin’ the utilities have had to place into the ‘game,’ ” Smith said. “Unfortunately, the court is giving the agency another chance to justify why equally important information should continue to be withheld from the public.”
The court also denied the group’s request for an “in camera” inspection of the contested documents, and described as “peculiar” the Energy Department’s belief that it provided adequate justification for withholding certain information.
“The unfortunate effect of these evidentiary inadequacies is to drag out this litigation and needlessly tax the court’s – and everyone else’s – resources in a type of litigation that is already notoriously time-consuming,” the order said. “In the context of FOIA litigation, information has a short shelf-life within which it can be useful to the requesting party, and accordingly there may be numerous (and illegitimate) reasons why a defending agency might want to run out the clock.”
He added that courts, which routinely give agencies a “second chance” in cases when the government can’t justify withholding public information, “may be unwittingly complicit in this subversion of FOIA’s fundamental purpose: public access, not secrecy.”
In the original six-page complaint filed in August 2010 in U.S. District Court in Washington, the group contended details of loan guarantee applications, the review process, correspondence pertaining to the use of union labor as a criterion for receiving the loan guarantees and other records were public, under the law.
Although the Department of Energy provided a “partial response” with several “heavily redacted documents” on July 6 and July 8, 2010, the records failed to satisfy the group’s March 25, 2010, Freedom of Information Act request, the complaint said.