Opinion
Civil Action No. 03-1756 (RMC).
March 16, 2005
MEMORANDUM OPINION
This lawsuit concerns three documents that were requested by the Plaintiff, Thomas Boyes, under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq., and produced by the Defendant, the U.S. Department of Energy ("DOE"), in heavily-redacted form or not at all. Having studied the parties' briefs and affidavits, the Court concludes that the DOE properly relied on Exemption 4 of FOIA to withhold or redact information. Accordingly, Plaintiff's complaint will be dismissed.
I. BACKGROUND
Mr. Boyes submitted a FOIA request to the DOE on October 18, 2002, seeking "a copy of the grant awarded to the General Electric Company ("GE"), i.e. (Contract DE-FC36-02GO111000) . . . [and] all relevant materials related to this contract in it's [sic] entirety." Compl. ¶ 8. This request was referred to the DOE's Golden Field Office ("GFO") for response. Mr. Boyes is the holder of U.S. Patent No. 5,841,211, Superconducting Generator and System Therefore. Plaintiff's Statement of Material Facts Not In Dispute ("Pl.'s Facts") ¶ 2. He had provided GE with information relating to his patent in October of 2000. Id. "Mr. Boyes is concerned that in certain important particulars, the technology underlying Contract DE-FC36-02GO11100 which DOE awarded to GE overlaps and infringes on the patent rights secured to him by U.S. Patent No. 5,841,211." Id.
The facts are taken from the parties' submissions of material facts that are not in dispute.
Mr. Boyes's FOIA request was sent to GFO because that office manages the DOE's Office of Energy Efficiency and Renewable Energy ("EE"). EE partially funds projects that involve the "development or demonstration of technical devices or systems where the commercial information or know-how is owned by the private sector recipient." 1st Declaration of John Kersten ("1st Kersten Decl.") ¶¶ 6 8. GFO has approximately 700 active financial assistance agreements with private sector organizations funded through grants or cooperative agreements. Id. ¶ 9. GE submitted a financial assistance application as part of the DOE's Superconductivity Partnership Initiative "to accelerate the commercial introduction of products, incorporating significant high temperature superconductive (HTS) components or sub-systems, for a broad range of electric power and industrial applications." Id. ¶ 10.
The financial assistance agreement with GE was awarded on May 17, 2002 to carry out a program on "The Design and Development of a 100 MVA HTS Generator for Commercial Entry." The DOE award to GE was $12,299,000, with GE providing its own funds in the amount of $14,348,397. Under the award, GE has proposed commercialization of superconducting generators, including production of a 1.5 MVA proof-ofconcept model for the rotor, cryorefrigeration, and HTS subsystems. GE will then scale these results to a 100 MVA prototype generator that will be fully tested under load.Id. ¶ 11.
By letter dated November 25, 2002, GFO granted in part and denied in part Mr. Boyes's FOIA request. Pl.'s Facts ¶ 3. GFO released in full over eighty responsive documents consisting of more than 200 pages. It withheld four documents in full pursuant to Exemptions 4 or 5 of FOIA, 5 U.S.C. §§ 552(b)(4) and (5). Only those documents withheld under Exemption 4, which exempts "trade secrets and commercial or financial information obtained from a person and privileged or confidential" from disclosure under FOIA, are relevant here:
1. Except for the title pages, the entire 30-page technical application, Volume I entitled "The Design and Development of a 100 MVA HTS Generator for Commercial Entry," dated May 15, 2001;
2. Except for title pages, the entire 22-page business application, Volume II of the same title and date; and
3. A five-page DOE analysis of GE's costs and rate structure under [the] proposed cooperative agreement.
Mr. Boyes did not appeal GFO's determination to withhold a draft letter from DOE to GE pursuant to Exemption 5 and has now dropped his complaint concerning it. See Kersten Decl. ¶ 15.
Pl.'s Facts ¶ 3. Mr. Boyes appealed this result to the DOE's Office of Hearing and Appeals ("OHA") by a timely letter dated December 17, 2002. The OHA issued a Decision and Order on March 10, 2003, remanding the appeal to GFO for either release of the three documents withheld under Exemption 4 or issuance of a new determination. The OHA noted that a trade secret under Exemption 4 must be a "secret, commercially valuable plan, formula, process or device." Pl.'s Facts, Ex. C at 3 ( citing Public Citizen Health Research Group v. Food Drug Admin, 704 F.2d 1280, 1288 (D.C. Cir. 1983)). Mr. Boyes argued that the patent he holds "contains a design for a . . . superconducting generator . . . which, based on what documents I have received and press releases I have read bears a very strong similarity to that of the funded prototype" in the withheld documents. Id. The OHA thought he was referring to a GE patent and, because "[a] patented device is not a secret," the OHA remanded to GFO "for a determination on whether some or all of the material withheld under the trade secret prong qualifies for protection. . . ." Id. As to the information withheld under the confidential commercial and financial information prong of Exemption 4, the OHA determined that "GFO's conclusory statements do not meet the requirements" of FOIA and remanded so that GFO could "provide an explanation of the reasoning underlying its conclusion." Id. at 5.
See Pl.'s Facts, Ex. D at 1 ("[Y]ou clarified that the information is contained in a patent held by you, rather than by General Electric as we initially believed.").
Upon remand, GFO contacted GE and asked for "a detailed justification" for categorizing the documents as exempt under Exemption 4. Concerning trade secrets, GE responded,
To the best of our knowledge, this proprietary information is not disclosed in any patents, publications or otherwise publicly available documents. In other words, it is not in the public domain. In particular, we wish to note that this proprietary information is not disclosed in Mr. Boyes[`s] U.S. Patent No. 5,841,211. Until this information is patented, published or otherwise publicly disclosed, GE considers the information to be proprietary.
Pl.'s Facts, Ex. D at 2. GE was also questioned by GFO concerning the claim that its financial data should be not revealed. It responded:
The Business Application includes proprietary financial data regarding GE's cost and rate structure. . . . Disclosure of this data would cause substantial harm to GE's competitive position. For example, disclosure of this proprietary data would give GE's competitors insight as to how GE develops its price when bidding on a project. Such knowledge would aid GE's competitors in developing competing bids, which would ultimately result in lost contracts and other opportunities to GE. Furthermore, because the cost and rate data provided in the Business Application [and reflected in the DOE Cost Analysis] have general applicability within GE, disclosure of this proprietary financial data would harm other GE businesses as well. 1st Kersten Decl., Ex. F at 2. In part in reliance on GE's explanations, GFO determined that the Technical Application was submitted by GE in confidence and contained trade secrets and confidential commercial and financial information concerning the design of an HTS generator and its subsystems; GFO also determined that the Business Application was submitted by GE in confidence and contained confidential commercial and financial information, including budgets, personnel, labor hours and costs, fringe benefits, equipment, supplies and other direct and indirect costs. Finally, the five-page DOE analysis of GE's cost and rate structure under the cooperative agreement ("DOE Cost Analysis") was determined to contain confidential commercial and financial information, originally submitted by GE in confidence, including personnel, fringe benefits, travel, equipment, supplies, subcontracts, construction costs, and other costs.
GFO staff members reviewed and compared GE's Technical Application and Patent No. 5,841,211, which was issued to Mr. Boyes. See id. ¶ 21. They determined that the "HTS Generator design, as described in GE's [T]echnical [A]pplication, does not involve any principle of operation or design related to Mr. Boyes['s] patent." Id. Similarly, none of the information in the Business Application or the DOE Cost Analysis "is disclosed in Mr. Boyes['s] patent." Id. ¶ 22. GFO feared that:
Release of GE's cost and rate information would impair GFO's ability to attract businesses to enter into financial assistance agreements with DOE to develop energy efficient and renewable energy technologies. . . . GFO would have to make decisions on which projects to fund with incomplete data. . . . Without companies providing the necessary information to make an informed evaluation, GFO would be placed at a great disadvantage in properly administering taxpayer funds to promote the most energy efficient technologies.Id. ¶¶ 23, 24.
In addition, Mr. Kersten declares that the exempt information in the three documents is interwoven with releaseable information and cannot be segregated. Id. ¶ 25. Finally, he states that "GFO staff has reviewed the withheld information to determine if a discretionary disclosure is appropriate. However, all information withheld pursuant to Exemption 4 is prohibited from discretionary release by the Trade Secrets Act, 18 U.S.C. § 1905." Id. ¶ 26.
This lawsuit followed issuance of GFO's November 25, 2002 letter.
II. STANDARD OF REVIEW
Summary judgment is appropriate when the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). In determining whether there is a disputed issue of material fact, the Court must view the underlying facts and draw all reasonable inferences in favor of the non-moving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio, 475 U.S. 574, 587 (1986); Washington Post Co. v. U.S. Dep't of Health and Human Services, 865 F.2d 320, 325 (D.C. Cir. 1989). The Court's threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson, 477 U.S. at 250. Once the moving party demonstrates that there is a lack of evidence to support the opponent's case, the burden shifts to the non-movant to demonstrate, through affidavits or otherwise, the existence of a material issue for trial. See Kingman Park Civic Ass'n v. Williams, 348 F.3d 1033, 1041 (D.C. Cir. 2003); Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). Conclusory allegations by the nonmovant are insufficient to withstand summary judgment. See Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999); Banks v. Chesapeake and Potomac Tel. Co., 802 F.2d 1416, 1430 n. 24 (D.C. Cir. 1986).
FOIA cases are typically resolved on motions for summary judgment, by which the court reviews the agency's decision to withhold or redact information de novo. Hayden v. National Sec. Agency/Central Sec. Service, 608 F.2d 1381, 1384 (D.C. Cir. 1979), cert. denied, 446 U.S. 937 (1980). In a FOIA action, summary judgment is appropriate where the defendant agency "demonstrate[s] beyond material doubt that its search was reasonably calculated to uncover all relevant documents." Wilbur v. CIA, 355 F.3d 675, 678 (D.C. Cir. 2004) (citation omitted). The agency must prove that each document at issue was produced, was not withheld, is unidentifiable, or is exempt from disclosure. Weisberg v. United States Dep't of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980). An agency can demonstrate that it has properly classified documents as exempt from disclosurethrough affidavits or declarations and other evidence that demonstrates that specific FOIA exemptions apply. Id. at 1386. Indeed, summary judgment may be awarded to an agency in a FOIA case solely on the basis of affidavits or declarations "when the affidavits describe `the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.'" Trans Union LLC v. Federal Trade Com'n, 141 F. Supp. 2d 62, 67 (D.D.C. 2001) ( quoting Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981)); see also McGehee v. CIA, 697 F.2d 1095, 1109 (D.C. Cir. 1983). However, "the burden is on the agency to sustain its action" in relying on any FOIA exemption. 5 U.S.C. § 552g(3)(A); see also Niagara Mohawk Power Corp. v. U.S. Dep't of Energy, 169 F.3d 16, 18 (D.C. Cir. 1999). "Conclusory and generalized allegations are indeed unacceptable as a means of sustaining the burden of non-disclosure under the FOIA. . . ." National Parks Conservation Ass'n v. Kleppe, 547 F.2d 673, 680 (D.C. Cir. 1976); Vaughn v. Rosen, 484 F.2d 820, 827 (D.C. Cir. 1973) (noting that the agency must "specify in detail which portions of the document are disclosable and which are allegedly exempt."). "[W]hen an agency seeks to withhold information it must provide a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply." Mead Data Central, Inc. v. United States Department of the Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977) (citations omitted).
III. ANALYSIS
FOIA represents "a policy of broad disclosure of Government documents in order `to ensure an informed citizenry, vital to the functioning of a democratic society.'" FBI v. Abramson, 456 U.S. 615, 621 (1982) (citations omitted). There is inevitable tension between this fundamental FOIA policy and Congress's realization "that legitimate governmental and private interests could be harmed by release of certain types of information. . . ." Id. Exemption 4 of FOIA seeks to balance these two concepts by shielding from disclosure "trade secrets and commercial or financial information obtained from a person and privileged or confidential." 5 U.S.C. § 552(b)(4). The DOE refused to release the three documents at issue here because it concluded that they contain trade secrets and confidential commercial or financial information obtained from GE.
In Plaintiff's Response to Defendant's Motion for Summary Judgment ("Pl.'s Response"), Mr. Boyes conceded that the information is commercial in nature and was obtained from a "person" as defined under FOIA. Pl.'s Response at 3; see 5 U.S.C. § 551(2) (defining "person" to include a corporation). He also stated that the DOE did not argue that the information constitutes a "trade secret," Pl.'s Response at 3 n. 3, but later recognized that this was "in error" and that the DOE does contend that the withheld information constitutes trade secrets. See Plaintiff's Reply to Defendant's Response to His Motion for Summary Judgment ("Pl.'s Reply") at 1 n. 1. Mr. Boyes also recognizes that "[t]rade secrets are reviewed distinctly from `commercial information' under Exemption 4: `If the requested documents constitute "trade secrets," they are exempt from disclosure, and no further inquiry is necessary. If the [requested documents] represent only "commercial information," their exempt status turns on the sufficiency of the appellees' showing of confidentiality.'" Pl.'s Response at 3 n. 3 (citing Public Citizen Health Research Group v. FDA, 704 F.2d 1280, 1286 (D.C. Cir. 1983) (internal citations omitted)).
Mr. Boyes objects to this conclusion. He insists that the DOE failed to "adequately address the six factors which DOE regulations mandate must be considered to support the withholding of information under exemption [sic] 4." Pl.'s Reply at 3; see 10 C.F.R. § 1004.11(f). An examination of the regulations and the DOE's explanations demonstrates otherwise.
The parties argue over whether the DOE has addressed "whether the information has been held in confidence by the person to whom it pertains." Pl.'s Reply at 3-4; see 10 C.F.R. § 1004.11(f)(1). Mr. Boyes argues that GFO is incompetent to testify as to GE's business practices and that Mr. Kersten's reference to information supplied by GE in an unsworn letter "is classic hearsay." Pl.'s Reply at 4; see Public Citizen Health Research Group v. FDA, 704 F.2d at 1291 (noting that the corporate appellees submitted a lengthy expert report and detailed depositions documenting competitive harm). The DOE responds that the information submitted by GE was, from the beginning, part of a confidential application for financial assistance, that GE stated that the documents contain trade secrets and proprietary information not in the public domain, and that GE asked the DOE to protect the information from disclosure to avoid harm to GE's competitive position. Further, the DOE submits a second supplemental declaration from Mr. Kersten and three declarations provided by GE, i.e., the Declarations of James W. Bray, Research Scientist at GE Global Research and Manager of the High Temperature Superconducting (HTS) Generator program; J. Michael VanDerwerken, Business Development Manager at GE Global Research; and Christian G. Cabou, General Counsel of the Global Intellectual Property and Legal Operation at GE Global Research. Mr. Bray states that certain data that was not publically available when the DOE first reviewed Mr. Boyes's FOIA request is no longer confidential or a trade secret. Bray Decl. ¶ 6. The Technical Application, with its redacted portions modified by GE's current position, has since been released to Mr. Boyes, consisting of all or parts of twelve pages. 2nd Supp. Kersten Decl. ¶ 12. Otherwise, Mr. Bray has identified trade secrets located within the Technical Application and the nature of the competitive harm to GE if these secrets were released. Bray Decl. ¶¶ 6 7. Mr. Bray also reviewed the Patent held by Mr. Boyes and affirms that "GE did not incorporate the plaintiff's invention into GE's HTS Generator program." Id. at ¶ 8. Mr. VanDerwerken's declaration identifies specific examples of current competition where release of the commercial and financial information in the Business Application could harm GE's competitive interests, not only within the HTS program, but across GE operations elsewhere. VanDewerken Decl. ¶ 7. These Declarations from GE managers support Mr. Kersten's original determination that this information was held in confidence by GE and is therefore eligible for application of Exemption 4.
The Court notes that the title sheets for the Technical Application and the Business Application both stated, "The data contained in pages [as specified] of this Application have been submitted in confidence and contain trade secrets or proprietary information, and such data shall be used or disclosed only for evaluation purposes. . . . DOE shall have the right to use or disclose the data herein to the extent provided in the award." 2nd Kersten Decl., Exs. A B.
Mr. Boyes argues that the DOE failed to consider whether the information that was withheld is of a type customarily held in confidence by the person to whom it pertains and whether there is a reasonable basis for doing so. 10 C.F.R. § 1004.11(f)(2). He asserts that the DOE relied upon "illogical conclusions," exemplified by Mr. Kersten's conclusion that since "the withheld material in GE's [T]echnical [A]pplication is not contained in Mr. Boyes's patent," it was "secret." Pl.'s Reply at 4. This argument misperceives the directions from OHA to GFO. Believing that Patent 5,841,211 (the "Boyes Patent") was a registered GE patent, OHA questioned how it could be "secret." On remand, Mr. Kersten clarified that the patent in question was held by Mr. Boyes, not GE, so that the information submitted by GE had properly been found to be "secret." Kersten Decl. ¶ 21; see also Bray Decl. ¶ 7 ("Public disclosure of our technical data and designs prior to patenting would unfairly advantage GE's competitors by either destroying our proprietary information's status as a trade secret or preventing GE from obtaining a patent."). The DOE's analysis of the withheld information as customarily held in confidence, based on its initial review of the information and supplemented by GE declarations, fully complies with the regulation.
It is clear that Mr. Boyes does not trust either the DOE or GE when they state that the GE Technical Application did not rely in any way on the Boyes Patent.
The third factor to be considered under the DOE's regulations is whether the information was transmitted to and received by the Department in confidence. See 10 C.F.R. § 1004.11(f)(3). Mr. Boyes attacks the competency and hearsay weaknesses of the Kersten Declaration on these points. GE has now supplied, and the DOE has submitted, the Cabou Declaration, which states that "GE would not have submitted this proposal, nor will GE submit proposals in the future, if we believed there was a risk that our trade secrets or confidential business information would be disclosed to the public." Cabou Decl. ¶ 10. There can be no question about the competency of Mr. Cabou to provide this statement. In addition, the title pages of both the Technical Application and the Business Application specified that GE was submitting to the DOE in confidence. See 2nd Kersten Decl., Exs. A B. The Court also finds that the DOE reasonably relied upon its analysis of the nature of the information itself — trade secrets not previously patented and financial and commercial information, the release of which would assist GE competitors — to determine that the information was transmitted and received in confidence. Mr. Boyes's argument to the contrary is without merit.
Information that is available in public sources is not exempt from disclosure under Exemption 4. See 10 C.F.R. § 1004.11(f)(4). Mr. Boyes asserts that the DOE impermissibly delegated the decision as to what is available in public sources to GE and that the DOE comparison of the Technical Application and the Boyes Patent "does not demonstrate that the information is not available from some other source" outside the Boyes Patent. Pl.'s Reply at 5. He argues that the "list of program team members and primary suppliers and alternates" is generally available to the public and that "`information pertaining to the reliability of competing technologies,' data regarding generator power system interactions and `generator market outlook'" data are of a type which are exchanged at industry forums. Id. (citations omitted).
The Court finds that the DOE made its own decision, without improper delegation to GE, and that it properly determined that the subject information is (or was) not available in public sources. It was Mr. Boyes who raised the issue of whether GE was infringing on the Boyes Patent with its Technical Application; a comparison of those two was therefore appropriate and, as indicated above, directed by OHA on remand. GE has affirmatively stated, by its initial letter and now with sworn declarations, that the withheld information is not available in public sources except in certain respects due to the passage of time. With no indication that this sworn information is submitted in bad faith, the DOE legitimately relied upon it and upon its own expertise in the area. It is not enough for a requester to argue that some unspecified amount of the same information "may" be public in some other forum. At the point of summary judgment, this type of argument is insufficient to counter sworn affidavits or declarations to the contrary. See Greene, 164 F.3d at 675. The Court also concludes that the fact that "generator market outlook" data are in the public eye does not reduce the confidentiality of GE's analysis of generator market outlook data or other such information. E. 10 C.F.R. § 1004.11(f)(5).
At the time a grant application is submitted, an applicant can only put together a potential list of personnel to work on the project. Variances will occur because the grant is not awarded immediately, people change jobs, someone is wooed to another position, or discharged. A grant applicant might list personnel who actually work for a competitor but who would be hired if the grant were awarded or list persons who are also listed on other bids, with their future work dependent on which bid wins an award or a government contract. Thus, the list of personnel at the time of the grant application could understandably be deemed confidential in a way that the list of personnel actually working on a project, after the award of the grant, might not be. The identities of those persons proposed to work on the GE grant have now been released. See 2nd Supp. Kersten Decl., Ex. C. at 24. Thus, this issue is moot.
Further, Mr. Boyes claims that the DOE has provided only speculations on the future performance of third parties, as opposed to hard data, in concluding that disclosure here is likely to impair the Government's ability to obtain similar information in the future. Pl.'s Reply at 5-6; see 10 C.F.R. § 1004.11(f)(5). The Cabou Declaration demonstrates the weakness of this argument. Were GE not assured of confidentiality of its trade secret and commercial/financial information, it would not submit such information to the Government. Were applicants unwilling to submit such information, the DOE would end up making grant decisions without sufficient information to assess adequately the potential value of the development project that is proposed. See Kersten Decl. ¶ 24. F. 110 C.F.R. § 1004.11(f)(6).
The argument that the DOE has failed to consider adequately whether disclosure is likely to cause substantial harm to GE's competitive position is similarly infirm. See 110 C.F.R. § 1004.11(f)(6). To the extent that these documents contain GE trade secrets, they are clearly exempt from disclosure and no further inquiry is necessary. The DOE, through its own analysis described in the Kersten Declarations and with supporting GE Declarations, has sufficiently identified and considered the likelihood of harm to GE's competitive position. See Kersten Decl. ¶ 22 ("Disclosure of the GE information in the three withheld documents would assist GE's competitors in their development of competing bids for financial assistance agreements with DOE and for other contracts, and thereby would likely cause substantial competitive harm to GE."); Vanderwerken Decl. ¶ 7 ("Bidding on government contracts is a competitive process. Public disclosure of either the Business Application or the [DOE Cost Analysis] would unfairly benefit GE's competitors and substantially harm GE's ability to compete . . . [by] giv[ing] GE's competitors insight as to how GE develops its price when bidding on a project."); Cabou Decl. ¶ 9 ("The public disclosure of technical data for technologies that GE Global Research has decided to preserve as secret or the public disclosure of inventions prior to the filing of a related patent application would detrimentally affect GE's ability to protect its proprietary information. The loss of patent or trade secret rights to new technologies developed at GE Global Research would substantially harm GE's competitive position by allowing GE's competitors to practice inventions developed by GE at expense to GE.").
The problem here is twofold. Mr. Boyes began this litigation already suspicious of GE and the DOE's decision process and, then, the DOE/GE did not provide a full array of sworn declarations until the DOE filed its Reply to Plaintiff's Opposition to Defendant's Motion for Summary Judgment. Had the DOE been more thorough in its earlier pleadings, we might have saved a few trees. In the end, however, the DOE's common-sense determinations that GE's trade secrets were exempt under Exemption 4 and that GE's financial and commercial data were confidential and also exempt are well supported. None of Mr. Boyes's arguments based on the regulations undermines the DOE's conclusions.
The rest of Mr. Boyes's allegations need not detain us long. It was not inappropriate for OHA to remand Mr. Boyes' appeal to GFO for reconsideration. See Pl.'s Reply at 8 ("[T]he `remand' after Mr. Boyes' appeal both delayed the processing of his request and violated the strictly construed procedural mandates of the FOIA."). Such a remand is part of the administrative process. Mr. Boyes's argument suggests that an agency should not be given an opportunity to correct a mistake prior to a lawsuit. This suggestion crumbles under its own weight because it would lead to unnecessary litigation. And, while the Court agrees that FOIA contains very tight time limits for agency action, it cannot find a violation because Mr. Boyes successfully appealed the original denial of his FOIA request.
Finally, Mr. Boyes argues that the DOE has not substantiated its claim that exempt and non-exempt materials within these documents cannot be segregated. Pl.'s Reply at 9. ("It is simply not credible for DOE to assert that nothing can be segregated and released for the withheld documents running up to 30 pages in length."). The Court disagrees. The nature of the information in the Technical Application and the Business Application is described in detail by the Kersten Declarations and the GE Declarations, which fully support Mr. Kersten's sworn statements that the exempt information was not segregable from the non-exempt information. The Technical Application, by its very nature, concerns developing technologies that are not yet commercially available or mainstream and are therefore exempt either as trade secrets or as confidential information. The Business Application and the DOE Cost Analysis describe GE's costing of the project with full details that contain confidential business information that could harm GE competitively if revealed. The incredulity of counsel aside, the Court finds no basis to question the bona fides of the Kersten and GE Declarations.
IV. CONCLUSION
Having reviewed the arguments advanced by Mr. Boyes, the Court finds that the DOE handled his FOIA request properly and relied on Exemption 4 to shield from disclosure the documents at issue. Defendant's Motion for Summary Judgment will be granted and Plaintiff's complaint will be dismissed. A memorializing order accompanies this memorandum opinion.