Energy and Policy Institute v. Tennessee Valley Authority

Holding: The Sixth Circuit reversed the denial of attorneys' fees and remanded for further proceedings regarding specific redactions, holding that an agency's mid-litigation release of documents is voluntary even when prompted by a third-party submitter.
Standard: FOIA fee eligibility under the OPEN Government Act
Vote: Affirmed in part, reversed in part, and remanded.
Practical effect: Federal agencies must recognize that releasing documents in response to third-party objections during litigation can still qualify as a voluntary change in position, making plaintiffs eligible for attorneys' fees under the OPEN Government Act.

The Sixth Circuit reversed and remanded a district court ruling that denied attorneys' fees to a watchdog group under the Freedom of Information Act. The court held that a federal agency's mid-litigation release of documents, prompted by a third-party submitter's change of position, constitutes a voluntary change sufficient to trigger fee eligibility.

Background

The Energy and Policy Institute requested documents from the Tennessee Valley Authority regarding communications with industry groups and an insurance contract. The agency withheld many documents and redacted others under FOIA exemptions. During litigation, the agency released some documents after a third-party law firm withdrew its objection to disclosure. The district court granted summary judgment to the agency and denied the institute’s motion for attorneys’ fees, ruling that the release was not voluntary or unilateral.

The court’s reasoning

The court affirmed the summary judgment on most withholdings under Exemption Four, finding that legal advice, client lists, and insurance risk assessments are commercial information. However, the court reversed the denial of fees, reasoning that the agency retains ultimate authority to release records and its decision to do so is voluntary regardless of third-party influence. The court also remanded for clarification on the redaction of individual names and email addresses under Exemption Six.

What it means going forward

Federal agencies must recognize that releasing documents in response to third-party objections during litigation can still qualify as a voluntary change in position, making plaintiffs eligible for attorneys’ fees under the OPEN Government Act.