Watchdog Group's FOIA Fee Claim Against TVA Revived; Panel Orders Partial Disclosure of Industry-Group Records

CINCINNATI (LN) — The panel also reversed several of TVA's withholdings, ordering disclosure of logistical emails and the name of an insurance-company negotiator that TVA had improperly shielded under Exemptions Four and Six.

Energy and Policy Institute, a public interest group, filed two FOIA requests seeking TVA's communications with the Climate Legal Group and the Power Generation Air Coalition — both coordinated firm McGuireWoods — and a copy of TVA's insurance contract with AEGIS covering its coal-fired power plants. TVA withheld or redacted hundreds of documents, citing Exemptions Four, Five, and Six. After EPI sued in the Eastern District of Tennessee, McGuireWoods told TVA it no longer objected to releasing certain documents, and TVA complied. The district court then granted TVA summary judgment on the remaining withholdings and denied EPI's fee motion, concluding that because McGuireWoods had prompted the release, TVA had not voluntarily or unilaterally changed its position within the meaning of 5 U.S.C. § 552(a)(4)(E)(ii).

The Sixth Circuit rejected that reasoning. Writing for the panel, Circuit Judge Joan Larsen said TVA retains the ultimate authority under its regulations to accept or reject a third party's representations about the applicability of FOIA exemptions and retains the ultimate obligation to comply with its disclosure requirements. TVA's counsel conceded at argument that the agency "make[s] the judgment." The choice to release documents, the panel held, was therefore TVA's own, and the district court erred by attributing the change entirely to McGuireWoods.

The panel went further, offering an alternative statutory construction that it said better fits the text. Reading "voluntary or unilateral" against the backdrop of Buckhannon Board & Care Home v. West Virginia Department of Health and Human Resources — the 2001 Supreme Court decision that eliminated the catalyst theory for general fee-shifting statutes — the panel concluded that Congress used those words Government Act to describe agency changes in position neither compelled by a judicial order nor memorialized by one, not to distinguish internal agency deliberation from third-party influence. Under either reading, the panel said, TVA's pre-Vaughn-index release of 166 documents qualified.

The panel did not award fees outright. It remanded for the district court to determine whether the filing of the lawsuit actually caused the release, whether EPI's claim was not insubstantial, and whether EPI is entitled to fees under traditional equitable standards. The panel noted that TVA had not pointed to any evidence that the documents would have been released regardless of the litigation, and observed that neither the initial FOIA response nor EPI's administrative appeal had prompted McGuireWoods to reverse course.

On the merits, the panel affirmed most of TVA's withholdings but carved out several categories. It reversed the district court's approval of Exemption Four redactions covering logistical emails — including messages about scheduling meetings, choosing a name for PGen, and how McGuireWoods would use its eRoom platform — finding that TVA's declarations failed to explain what commercial harm would flow from their disclosure. It also ordered TVA to unredact the name of the AEGIS underwriting representative who negotiated the insurance policy, noting that TVA had declined to rely on Exemption Six for that redaction at argument and offered no defense of the name's commerciality beyond the submitter's own assertion of confidentiality.

On Exemption Six, the panel held that individual names and email addresses were properly protected but that company names and email domain names — such as redacted addresses ending in @mcguirewoods.com or @southernco.com — could not be identified as applying to an individual and must be disclosed to the extent not separately shielded by Exemption Four. The panel also directed TVA on remand to clarify whether documents withheld as listing potential PGen members actually include current members, whose names appear publicly on PGen's own website.

The panel assumed without deciding that the OPEN Government Act reinstated the pre-Buckhannon catalyst theory, declining to resolve an argument pressed by amicus Public Records Media that the amended statute requires only a showing that the claim was not insubstantial — with no causation element at all. That question, the panel said, would wait for another day.

At argument, TVA described its mid-litigation document release as "essentially the give and take of how FOIA [disputes proceed]."

The panel noted that TVA, which had access to the documents over which McGuireWoods was asserting confidentiality, never explained why it failed to release them in either its initial FOIA determination or on administrative appeal — a silence that may complicate its causation argument on remand.

The case is Energy and Policy Institute v. TVA, Nos. 24-6134/25-5111 (6th Cir. May 8, 2026).