The Freedom of Information Act (FOIA); Whether some documents were properly withheld from disclosure under 5 USC §§ 552(b)(4) & (5); Whether the withheld information was “commercial” in nature; Whether some of the information was “obtained from a person” rather than generated by the agency; Whether information was confidential; “Invasion of personal privacy”; § 552(b)(6); In camera review; Attorney fees; Whether plaintiff was a “prevailing party”; § 552(a)(4)(E)(ii)

In this FOIA case, the court held that the substance of some “documents, with any other protected material appropriately redacted, should not have been withheld under Exemption Four.” But it held that other information was within the protection of Exemption Four and Exemption Six. It remanded for further proceedings as to some of the withholdings and as to plaintiff-Energy and Policy Institute’s (EPI) request for attorney fees under the FOIA. EPI sought documents from defendant-TVA concerning industry groups and an insurance policy. The TVA complied as to some of the documents, partially redacted some, and withheld others. EPI sued. The TVA released more documents during the litigation. The district court granted judgment to the TVA on the remaining documents. It also denied EPI’s motion for attorney fees based on its role in obtaining the mid-litigation release. On appeal, EPI first challenged the TVA’s decision to withhold some of the requested documents and redact others. The court held as to Exemption Four (§ 552(b)(4)) that some of the documents, but not all, were “commercial or financial” in nature. Exemption Four also requires that the information be “obtained from a person” and that it be confidential in order to be withheld. The court held that some withholdings were “proper even if TVA was one of the contributing [industry group’s] members because the information involved would not be reasonably segregable from the protected information.” As to confidentiality, it found that information about the insurance policy “was properly withheld under Exemption Four” but that remand was required for the district court to direct the TVA to clear up an ambiguity as to other information. The court also found that the district court correctly ruled that some information was protected by Exemption Six, and upheld its decision to deny in camera review of certain documents. As to EPI’s attorney fees request, the court remanded for the district court to determine “(1) whether the filing of the suit caused the release of the documents, directly or indirectly, (2) whether EPI’s claim was ‘not insubstantial,’ and (3) whether EPI is entitled to fees under the traditional equitable standards that govern an award.” Affirmed in part, reversed in part, and remanded.