1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________________ ) FPL GROUP, INC., ) ) Plaintiff, ) ) v. ) Civil Action No. 09-652 (ESH) ) INTERNAL REVENUE SERVICE, ) ) Defendant. ) __________________________________________) MEMORANDUM OPINION This matter is before the Court on the cr oss-motions for summary judgment brought by defendant Internal Revenue Service and plainti ff FPL Group, Inc. on plain tiff’s claims under the Freedom of Information Act. The Court previo usly granted defendant’s motion in part and denied it in part, denied plai ntiff’s cross-motion in part, and ordered defendant to produce the remaining documents at issue for in camera review and to file supporting affidavits. See FPL Group, Inc. v. I.R.S. , No. 09-CV-652, 2010 WL 890219, at *2 2 (D.D.C. Mar. 12, 2010). After defendant submitted the documents in camera and filed several declarations and Vaughn indexes, the Court invited plaintiff to submit a response and objections to defendant’s filings. ( See Pl.’s Response re: Apr. 20, 2010 Order (“Pl.’s Res ponse”).) Based on the Court’s review of each of the documents submitted in camera , and having reviewed de fendants’ recently filed declarations and Vaughn Index, as well as plaintiff’s response and objections, the Court will grant defendant’s motion and deny plaintiff’s cross-motion. The Court need not address plaintiff’s contentions that “the declarations submitted by Defendant do not comply with the Court’s Order w ith respect to claims of deliberative process privilege,” and that the agency atto rney’s declarations describing the in camera submissions “fail2 to show an adequate basis for the other claims of privilege . . . .” (Pl.’s Response at 1-2.) Those declarations were requested merely to s upplement the Court’s review of the submitted documents, in the event that the basis for each document’s exemption claim could not be discerned from its face or the Vaughn indexes. The Court has re viewed each document, aided both by the indexes and the declarations, and based on this review, it concludes that the exemptions asserted have been properly claimed. 1

1 With respect to paragraph 1 of the C ourt’s March 12, 2010 Order on the parties’ summary judgment motions (“the Order”), the Court notes that plaintiff does not contest defendant’s assertion that onl y non-responsive documents were located in response to that paragraph’s instructions. With respect to the “workplans” and other documents at issue in paragraph 3 of the Order, the Court concludes that defendant has appropriately asserted the deliberative process privilege, even though it did not invoke that privilege as to th ese documents in its motion for summary judgment. The Court rejects plaintiff’ s argument that defendant is barred from now invoking that privilege for the first time and mu st instead rely upon the attorney work product privilege. ( See Pl.’s Response at 12-14.) Although “ag encies [may] not make new exemption claims to a district court after the judg e has ruled in the other party's favor,” Senate of the Commonwealth of P.R. ex rel. Judici ary Comm. v. U.S. Dep’t of Justice , 823 F.2d 574, 580 (D.C. Cir. 1987) (internal quotation marks omitted), defendant has not invoked a new exemption; rather, it has only articulated an additional basi s for asserting Exemption 5, which it had already invoked. But even if defendant’s assertion of th e deliberative process priv ilege were deemed to be a new exemption claim, the Order was not a ruling in plaintiff’s favor. A denial of a defendant’s motion for summary j udgment is not “tantamount to a ruling in [the plaintiff’s] favor,” especially where the plaintiff’s own motion for summary judgment is not granted. Reliant Energy Power Generation, Inc. v. F.E.R.C. , 520 F. Supp. 2d 194, 202 (D.D.C. 2007) (holding that agency did not waive right to invoke Exemption 4 in second summary judgment motion after failing to do so in first summary j udgment motion). Here, the Order did not grant any portion of plaintiff’s cro ss-motion for summary judgment. Plaintiff objects to the withhol ding of several documents per tinent to paragraph 4 of the Order, arguing that the agency’s asserted desire to avoid public “criticism” is an invalid basis for non-disclosure. (Pl.’s Re sponse at 11-12 (quoting Tax Analysts v. Internal Revenue Serv. , 117 F.3d 607, 618 (D.C. Cir. 1997)); see Third Decl. of Mary Elle n Keys ¶¶ 34, 35, 37-38, 40-42, 47- 49.) Although an agency’s fear of public criticism, without more , would not appear to justify a withholding, that is not the ag ency’s only reason for withholding those documents. Defendant also asserts that disclosure “may confuse issu es and mislead the public by suggesting rationales for a course of action that [were] not the ultim ate reasons for the agency’s decision.” (Third Decl. of Mary Ellen Keys ¶ 34; see also id. ¶¶ 35, 37-38, 40-42, 47-49.) Based on the Court’s review of the documents, it finds th at such a concern is reasonable.3 A separate order accompanies this Memorandum Opinion. SO ORDERED.
/s/ ELLEN SEGAL HUVELLE United States District Judge DATE: May 14, 2010