Niskanen Center v. FERC ( 2021 )


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  •  United States Court of Appeals
    FOR THE DISTRICT OF COLUMBIA CIRCUIT
    Argued September 13, 2021         Decided December 17, 2021
    No. 20-5028
    NISKANEN CENTER,
    APPELLANT
    v.
    FEDERAL ENERGY REGULATORY COMMISSION,
    APPELLEE
    Appeal from the United States District Court
    for the District of Columbia
    (No. 1:19-cv-00125)
    Megan C. Gibson argued the cause for appellant. With
    her on the briefs were Ciara Wren Malone and David
    Bookbinder.
    Peter C. Pfaffenroth, Assistant U.S. Attorney, argued the
    cause for appellee. With him on the brief was R. Craig
    Lawrence, Assistant U.S. Attorney.
    Before: ROGERS and TATEL, Circuit Judges, and
    RANDOLPH, Senior Circuit Judge.
    Opinion for the Court filed by Circuit Judge TATEL.
    Concurring opinion by Senior Circuit Judge RANDOLPH.
    2
    TATEL, Circuit Judge: In this Freedom of Information
    Act case, a nonprofit seeks the names and addresses of
    property owners along the route of a proposed pipeline.
    Although the Federal Energy Regulatory Commission
    concluded that the property owners’ privacy interests
    outweighed the public interest in this identifying information,
    it agreed to a more limited disclosure—the property owners’
    initials and street names. The district court found that FERC’s
    proposal struck the proper balance between these competing
    interests. We agree.
    I.
    Before building a pipeline, a natural-gas company must
    obtain a certificate that public convenience and necessity
    require it. 15 U.S.C. § 717f(c), (e). FERC may issue such a
    certificate only after notice to interested parties. 15 U.S.C.
    § 717f(c). Its regulations charge certificate applicants with
    providing this notice. 
    18 C.F.R. § 157.6
    (d). Certificate
    applicants must identify affected landowners, notify them by
    mail and publication, and submit lists of the landowners to
    FERC for its review. 
    Id.
     Landowners wishing to oppose
    certification have a limited window of time to intervene in the
    administrative proceedings. Judicial review is available only
    following a timely rehearing petition by a party to the
    administrative proceedings. See 15 U.S.C. § 717r(a).
    With a certificate of public convenience and necessity in
    hand, a pipeline company wields authority to seize private
    property by eminent domain. 15 U.S.C. § 717f(h). In practice,
    courts may award a certificate holder immediate possession
    before determining the compensation due to the property’s
    owner. See PennEast Pipeline Co., LLC v. New Jersey, 
    141 S. Ct. 2244
    , 2253 (2021). Defective notice of a certificate
    application may thus leave property owners facing sudden and
    unexpected condemnation of their land with little recourse.
    3
    Niskanen Center is a nonprofit think tank that represents
    landowners affected by pipeline construction. In connection
    with its investigation into whether FERC was meeting its
    statutory notice obligations, Niskanen filed a FOIA request
    seeking landowner lists for the since-discontinued Atlantic
    Coast Pipeline project.
    In response, FERC withheld the names and addresses of
    individual landowners under FOIA Exemption 6, which
    shields records if their disclosure “would constitute a clearly
    unwarranted invasion of personal privacy.” 
    5 U.S.C. § 552
    (b)(6). FERC concluded that releasing this information
    would “expose the landowners to an unwanted invasion of
    privacy” and that the balance of public and privacy interests
    “favors protecting the significant privacy interest of the
    landowners.”
    Niskanen sued to compel disclosure, and the parties each
    moved for summary judgment. During a conference on the
    motions, the district court attempted to steer the parties to
    compromise. To that end, it asked Niskanen’s counsel to
    explain what the organization intended to do with the full
    names and addresses of affected landowners and why partial
    disclosure—for example, of only property owner initials and
    street names—would be inadequate for that purpose.
    Niskanen responded that it wanted to compare entries on the
    list with public records of landowners along the pipeline route
    to assess whether the pipeline company had notified the right
    people. But its only explanation for why it needed full names
    and addresses for that task was the possibility that a current
    landowner might share initials with the previous owner. When
    pressed by the district court, Niskanen accepted that this
    scenario would be, in the court’s words, “pretty rare.”
    Niskanen disclaimed any interest in contacting affected
    landowners. Hearing no reason Niskanen needed all it sought,
    4
    the court directed the parties to negotiate a more limited
    disclosure that would protect the landowners’ privacy.
    Negotiations failed. The parties informed the court that
    FERC had offered to provide initials and street names for
    individual landowners, but Niskanen insisted on full street
    addresses. The court granted summary judgment to FERC on
    the condition that it provide initials and street names as it
    proposed. Niskanen Center v. FERC, 
    436 F. Supp. 3d 206
    (D.D.C. 2020). Full disclosure of landowner names and
    addresses, the court found, would do little to advance the
    public interest. Based on Niskanen’s statements at the
    summary judgment hearing, the court found that street names
    and initials would be more than enough to allow Niskanen to
    compare the landowner lists to public records. The court
    concluded: “The proposed limited disclosure here is a just
    outcome, for it protects the privacy interests of thousands of
    affected landowners—by withholding additional personal
    information—without sacrificing the public’s interest in
    disclosure.” 
    Id. at 214
    .
    Unsatisfied, Niskanen appealed. “We review the district
    court’s grant of summary judgment de novo.” Billington v.
    DOJ, 
    233 F.3d 581
    , 584 (D.C. Cir. 2000). Though the parties
    spar fiercely over FERC’s track record of notifying affected
    landowners, that dispute is far afield. The issue presented for
    our review is narrow: whether the incremental public interest
    in disclosing names and addresses of property owners along a
    pipeline route—rather than only their street names and
    initials—outweighs the incremental burden on their privacy.
    II.
    FOIA seeks to “‘open agency action to the light of public
    scrutiny’” by mandating disclosure of agency records unless
    subject to an enumerated statutory exemption. ACLU v. DOJ,
    5
    
    750 F.3d 927
    , 929 (D.C. Cir. 2014) (quoting Department of
    the Air Force v. Rose, 
    425 U.S. 352
    , 361 (1976)). “Official
    information that sheds light on an agency’s performance of its
    statutory duties falls squarely within that statutory purpose.
    That purpose, however, is not fostered by disclosure of
    information about private citizens that is accumulated in
    various governmental files but that reveals little or nothing
    about an agency’s own conduct.” DOJ v. Reporters
    Committee for Freedom of the Press, 
    489 U.S. 749
    , 773
    (1989).
    To this end, Exemption 6 protects “personnel and
    medical files and similar files the disclosure of which would
    constitute a clearly unwarranted invasion of personal
    privacy.” 
    5 U.S.C. § 552
    (b)(6). The parties agree that the
    landowner lists qualify as “similar files” because they contain
    information that “applies to a particular individual.”
    Department of State v. Washington Post Co., 
    456 U.S. 595
    ,
    602 (1982). “To apply [E]xemption 6, a court must first
    determine whether disclosure would compromise a
    substantial, as opposed to a de minimis, privacy interest. If a
    substantial privacy interest is at stake, then the court must
    balance the individual’s right of privacy against the public
    interest in disclosure.” Prison Legal News v. Samuels, 
    787 F.3d 1142
    , 1147 (D.C. Cir. 2015) (internal quotation marks
    and citations omitted). Once disclosed to a requester, records
    are publicly available, and so the court must consider the
    public interest and privacy ramifications of disclosure to the
    public at large. National Association of Retired Federal
    Employees v. Horner, 
    879 F.2d 873
    , 875 (D.C. Cir. 1989)
    (“The statute requires that non-exempt files be disclosed to
    ‘any person.’ 
    5 U.S.C. § 552
    (a)(3). That is, information
    available to anyone is information available to everyone.”).
    And, central to this case, the balancing inquiry focuses “not
    on the general public interest in the subject matter of the
    6
    FOIA request, but rather on the incremental value of the
    specific information being withheld.” Schrecker v. DOJ, 
    349 F.3d 657
    , 661 (D.C. Cir. 2003).
    The threshold requirement of a substantial privacy
    interest “is not very demanding.” Multi Ag Media LLC v.
    Department of Agriculture, 
    515 F.3d 1224
    , 1230 (D.C. Cir.
    2008). We have consistently found that the privacy interest in
    an individual’s name and address surmounts this low bar. See,
    e.g., Judicial Watch, Inc. v. FDA, 
    449 F.3d 141
    , 153 (D.C.
    Cir. 2006) (names and addresses of individuals associated
    with abortion medication); National Association of Home
    Builders v. Norton, 
    309 F.3d 26
    , 35 (D.C. Cir. 2002) (parcel
    numbers where pygmy owls were spotted); Painting &
    Drywall Work Preservation Fund, Inc. v. Department of
    Housing & Urban Development, 
    936 F.2d 1300
    , 1303 (D.C.
    Cir. 1991) (names and addresses of construction contractors);
    Reed v. NLRB, 
    927 F.2d 1249
    , 1251 (D.C. Cir. 1991) (names
    and addresses of employees eligible to vote); SafeCard
    Services, Inc. v. SEC, 
    926 F.2d 1197
    , 1205 (D.C. Cir. 1991)
    (names and addresses of third parties mentioned in witness
    interviews); FLRA v. Department of Treasury, 
    884 F.2d 1446
    ,
    1452 (D.C. Cir. 1989) (names and addresses of agency
    employees); Horner, 
    879 F.2d at 878
     (names and addresses of
    retired employees). The Supreme Court has said the same. See
    Department of Defense v. FLRA, 
    510 U.S. 487
    , 501 (1994)
    (“it is clear that [civil service employees] have some
    nontrivial privacy interest in nondisclosure” of their
    addresses). “In the context of an individual residence, the
    court has recognized that ‘the privacy interest of an individual
    in avoiding the unlimited disclosure of his or her name and
    address is significant.’” Norton, 
    309 F.3d at 35
     (quoting
    Horner, 
    879 F.2d at 875
    ).
    7
    True, we have at times observed that “the disclosure of
    names and addresses is not inherently and always a significant
    threat to the privacy of those listed,” and so we must consider
    “the characteristic(s) revealed by virtue of being on the
    particular list, and the consequences likely to ensue.” Horner,
    
    879 F.2d at 877
    . That said, we have found a significant
    privacy interest whenever the information sought was of a
    type that might invite unwanted intrusions, even absent
    evidence that such intrusions had occurred in the past. In
    National Association of Retired Federal Employees v.
    Horner, for example, we “assume[d]” that businesses would
    take the opportunity to market services to the retirees whose
    names and addresses were at issue. 
    Id. at 878
    . In Department
    of Defense v. FLRA, the Supreme Court found a substantial
    privacy interest because “[m]any people simply do not want
    to be disturbed at home by work-related matters.” See FLRA,
    
    510 U.S. at
    500–01. Even the possibility of wayward
    birdwatchers has nudged us past this threshold question. See
    Norton, 
    309 F.3d at
    34–35 (noting “weak” evidence of
    trespassing by birdwatchers but nonetheless “[v]iewing the
    asserted privacy interests as involving more than minimal
    invasions of individual privacy”). The risk of unwanted
    contact or solicitation here is similar. And the landowners’
    privacy interests are more acute than in many Exemption 6
    cases because they took no action to avail themselves of any
    government benefit but instead appear on FERC’s lists by
    mere happenstance of geography.
    Finding more than a minimal privacy interest, we turn to
    the public interest in disclosure, and in assessing this interest,
    we consider only the “incremental value” of the specific
    information withheld. Schrecker, 
    349 F.3d at 661
    .
    The public obviously has a strong interest in whether
    FERC fulfills its statutory notice obligations. See Reporters
    8
    Committee, 
    489 U.S. at 773
     (“Official information that sheds
    light on an agency’s performance of its statutory duties falls
    squarely within [FOIA’s] statutory purpose.” (internal
    quotation marks omitted)). But to determine whether it does
    so, the public has no need for the personal identifying
    information of affected landowners. Indeed, Niskanen
    concedes that the redacted lists allow it and other members of
    the public to ascertain a great deal about what FERC and
    certificate applicants are up to. For example, it notes that it
    has been able to identify eighty-four landowners on the lists
    for whom the pipeline company was unable to find an address
    and so could not have provided notice by mail. At the same
    time, despite the district court’s repeated prodding, Niskanen
    offered the court no cogent reason it needed the landowners’
    full names and addresses. The district court thus found that
    “initials and street names would be sufficient” to allow
    Niskanen to determine whether the pipeline company was
    notifying affected landowners. Niskanen, 436 F. Supp. 3d at
    214. “The addition of the redacted identifying information
    would not shed any additional light on the Government’s
    conduct of its obligation.” Department of State v. Ray, 
    502 U.S. 164
    , 178 (1991).
    As in other cases where the requesting party “failed to
    express” how redacted identifying information would advance
    public understanding, we agree with the district court that the
    privacy interests here outweigh the public interest in
    disclosure. Carter v. Department of Commerce, 
    830 F.2d 388
    ,
    391–92 & n.13 (D.C. Cir. 1987). Niskanen has given us no
    basis for disturbing the district court’s conclusion that street
    names and initials would give it all it needs to evaluate
    FERC’s conduct.
    Niskanen also complains that portions of the redacted
    lists FERC produced following the district court’s order are
    9
    illegible. At oral argument, FERC agreed to cooperate with
    Niskanen to correct these defects. If FERC fails to do so or if
    Niskanen believes the redacted lists otherwise depart from the
    district court’s order, it may seek appropriate relief from that
    court.
    III.
    Niskanen identifies a weighty public interest in
    understanding FERC’s compliance with its notice obligations,
    but it articulates no reason it needs the full names and
    addresses of landowners along a pipeline route to do so. The
    district court rightly found that more limited disclosure best
    balanced landowners’ privacy and the public interest. We
    affirm.
    So ordered.
    RANDOLPH, Senior Circuit Judge, concurring,
    In June 2020 the Supreme Court decided a permit dispute
    in favor of the Atlantic Coast Pipeline, LLC. U.S. Forest Serv.
    v. Cowpasture River Pres. Ass’n, 590 U.S. ___, 
    140 S. Ct. 1837
    (2020). A few weeks later, the pipeline owners canceled their
    project.1
    The owners explained that a “series of legal challenges to
    the project’s federal and state permits has caused significant
    project cost increases and timing delays.” Press Release,
    Dominion Energy & Duke Energy Cancel the Atlantic Coast
    Pipeline, DUKE ENERGY (July 5, 2020). They added that their
    decision “reflects the increasing legal uncertainty that overhangs
    large-scale energy and industrial infrastructure development in
    the United States.”
    The majority opinion acknowledges the pipeline’s demise
    but then says nothing more about it. My view is that the
    pipeline’s cancellation has a significant impact on the Freedom
    of Information Act issue in this case.
    Proposed in 2014, the pipeline was to be 604 miles long,
    “extending from West Virginia to North Carolina.”
    Cowpasture, 590 U.S. at ___, 140 S. Ct. at 1841. In order to
    notify the many thousands of affected landowners along the
    route, Atlantic Coast Pipeline compiled a list of their names and
    addresses. The company delivered a copy to the Federal Energy
    Regulatory Commission during the early stages of the
    certification proceedings.
    Exemption 6 of the Freedom of Information Act does not
    1
    A subsidiary of Dominion Resources, LLC owns 48 percent of
    the Atlantic Coast Pipeline; one subsidiary of Duke Energy
    Corporation owns 40 percent; another subsidiary of Duke Energy
    owns 7 percent. Atl. Coast Pipeline, LLC, 
    161 FERC ¶ 61,042
     (2017).
    2
    require a federal agency to disclose an individual’s name and
    address if doing so “would constitute a clearly unwarranted
    invasion of personal privacy.” 
    5 U.S.C. § 552
    (b)(6). As the
    majority opinion explains, FERC therefore would be obliged2 to
    withhold the list from the Niskanen Center3 if the landowners’
    privacy interests outweigh the public interest in disclosing the
    landowners’ full names and addresses.4 Maj. Op. 5.
    The potential “privacy” involved here may be described as
    the landowners’ “mental repose” and perhaps their “physical
    solitude.” See Hyman Gross, The Concept of Privacy, 42
    N.Y.U. L. REV. 34, 39 (1967).5 That at least is how the district
    viewed the matter. The court thought that the affected
    landowners’ privacy interest was “in not divulging that a
    2
    The Privacy Act, 5 U.S.C. § 552a(b)(2), bars agencies from
    disclosing information about private individuals if FOIA does not
    require disclosure.
    3
    The majority opinion states as fact that “Niskanen Center . . .
    represents landowners affected by pipeline construction.” Maj. Op. 3.
    Niskanen so claimed in its Supreme Court amicus brief in the
    Cowpasture case. Brief of Amicus Curiae Niskanen Center in Support
    of Respondents at 1, Cowpasture, 590 U.S. ___, 
    140 S. Ct. 1837
     (No.
    18-1584). Its claim may have been strictly true but misleading. Of the
    many thousands of landowners along the 604-mile route of the
    proposed pipeline, Niskanen’s lawyers represented one married couple
    who intervened in Atlantic Coast Pipeline, LLC v. FERC (D.C. Cir.
    Nov. 19, 2018) (No. 18-1224), currently in abeyance.
    4
    In compliance with the district court’s conditional grant of
    summary judgment, FERC published the landowners’ initials, street
    names, and states of residency (but not their full names, house
    numbers, or towns).
    5
    These were also the aspects of privacy at stake in the Exemption
    6 names-and-addresses cases the majority opinion cites. Maj. Op. 6-7.
    3
    natural-gas pipeline crosses their property . . . to avoid potential
    protests on their land.” Niskanen Ctr. v. FERC, 
    436 F. Supp. 3d 206
    , 214 (D.D.C. 2020). But this prospect is no longer a
    concern now that the pipeline owners have canceled the project.6
    Even so, another privacy interest remains at stake. Many
    organizations were interested in the Atlantic Coast Pipeline.7
    Local, regional and national organizations opposing the pipeline
    would naturally take at least some credit for its cancellation.8 In
    light of the pipeline owners’ explanation, they would have a
    6
    In Bonner v. United States Department of State, 
    928 F.2d 1148
    (D.C. Cir. 1991), the court recognized that there are some FOIA cases
    in which it is “appropriate for a court to review the agency decision in
    light of post-decision changes in circumstances.” 
    Id.
     at 1153 n.10.
    This is such a case.
    7
    An Appendix to FERC’s final environmental impact statement
    for the Atlantic Coast Pipeline contains a distribution list of
    “Miscellaneous Individuals, Organizations, and Landowners.” See
    OFF. OF ENERGY PROJECTS, FED. ENERGY REGUL. COMM’N, ATLANTIC
    COAST PIPELINE & SUPPLY HEADER PROJECT FINAL ENVIRONMENTAL
    IMPACT STATEMENT, vol. II, at A-33 (2017). The list contains some
    7,000 entries, giving the name, town and state of the person or
    organization. Many of the organizations so listed were opposed to the
    pipeline. Some — including the Niskanen Center — filed amicus
    briefs in the Supreme Court Cowpasture case.
    8
    Many organizations did just that upon the pipeline’s
    cancellation. E.g., ABRA Update #283, DING, DONG, THE ACP!,
    ALLEGHENY-BLUE RIDGE ALL. (July 10, 2020); Press Release, SELC’s
    Pipeline Team Reflects on the Path to Victory, S. ENV’T LAW CTR.
    (July 9, 2020); Press Release, BREAKING: Atlantic Coast Pipeline
    Cancelled, SIERRA CLUB (July 5, 2020); CANCELLED: Atlantic Coast
    Pipeline, APPALACHIAN VOICES, https://appvoices.org/fracking/atlant
    ic-coast-pipeline/ [https://perma.cc/GEE3-MUSN] (last visited Dec.
    15, 2021).
    4
    point.
    Those organizations touting their “good work” would have
    every incentive to use the landowner lists to solicit donations, by
    mail, by telephone or in person. In the face of comparable
    potential uses, the Supreme Court determined that individuals
    “have some nontrivial privacy interest in nondisclosure” of their
    home addresses. U.S. Dep’t of Def. v. FLRA, 
    510 U.S. 487
    , 501
    (1994).9 The Court also held that the individuals’ privacy
    interest in their home addresses “does not dissolve simply
    because that information may be available to the public in some
    form,” 
    id. at 500
    , as the landowners’ names and addresses
    certainly were.10
    As to a countervailing public interest from organizations
    using the landowners’ list in this manner, there is none.
    Fundraising by private organizations is not a public interest
    under Exemption 6. It is not a public interest because this
    activity reveals nothing about FERC’s performance of its
    responsibilities. See Bibles v. Oregon Nat. Desert Ass’n, 
    519 U.S. 355
    , 355-56 (1997) (per curiam).
    The only remaining plausible “public interest” is the one the
    9
    The majority opinion, relying on circuit precedent, states that in
    an Exemption 6 case the court must first determine whether disclosure
    would compromise a substantial privacy interest and only then
    evaluate the public interest in disclosure. Maj. Op. 5. I do not believe
    this decisional sequence is a hard and fast rule. The Supreme Court
    in Department of Defense, 
    510 U.S. at 497
    , began its analysis with an
    assessment of the public interest and only then turned to an evaluation
    of the privacy interest, 
    id. at 500
    .
    10
    FERC’s regulations required the pipeline to assemble its list of
    landowners from public tax records. 
    18 C.F.R. §§ 157.6
    (d)(2),
    157.21(f)(3).
    5
    Niskanen Center has identified — comparing the pipeline’s list
    with the public record of landowners who should have been
    notified of the impending pipeline project. On this subject I
    agree with the majority opinion’s analysis.
    For the reasons mentioned above and in the majority
    opinion, I agree that the judgment of the district court should be
    affirmed.
    

Document Info

Docket Number: 20-5028

Filed Date: 12/17/2021

Precedential Status: Precedential

Modified Date: 12/17/2021

Authorities (17)

federal-labor-relations-authority-v-us-department-of-the-treasury , 884 F.2d 1446 ( 1989 )

Bibles, Oregon Director, Bureau of Land Management v. ... , 117 S. Ct. 795 ( 1997 )

Billington v. U.S. Department of Justice , 233 F.3d 581 ( 2000 )

National Ass'n of Home Builders v. Norton , 309 F.3d 26 ( 2002 )

United States Department of State v. Washington Post Co. , 102 S. Ct. 1957 ( 1982 )

United States Department of State v. Ray , 112 S. Ct. 541 ( 1991 )

Judicial Watch, Inc. v. Food & Drug Administration , 449 F.3d 141 ( 2006 )

Safecard Services, Inc. v. Securities and Exchange ... , 926 F.2d 1197 ( 1991 )

Schrecker v. United States Department of Justice , 349 F.3d 657 ( 2003 )

Raymond T. Bonner v. United States Department of State , 928 F.2d 1148 ( 1991 )

Multi Ag Media LLC v. Department of Agriculture , 515 F.3d 1224 ( 2008 )

Painting and Drywall Work Preservation Fund, Inc. v. ... , 936 F.2d 1300 ( 1991 )

United States Department of Justice v. Reporters Committee ... , 109 S. Ct. 1468 ( 1989 )

United States Department of Defense v. Federal Labor ... , 114 S. Ct. 1006 ( 1994 )

National Association of Retired Federal Employees v. ... , 879 F.2d 873 ( 1989 )

Rex H. Reed v. National Labor Relations Board , 927 F.2d 1249 ( 1991 )

William J. Carter v. United States Department of Commerce , 830 F.2d 388 ( 1987 )

View All Authorities »