Odland v. Federal Energy Regulatory Commission , 34 F. Supp. 3d 3 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________
)
JOHN ODLAND, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 13-141 (RMC)
)
FEDERAL ENERGY REGULATORY )
COMMISSION, )
)
Defendant. )
_________________________________ )
OPINION
Plaintiffs John Odland and Michael Mojica sue the Federal Energy Regulatory
Commission (FERC) under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, to compel
the release of records concerning FERC’s review and approval of an application for a certificate
of necessity and convenience for the construction of a compressor station by Millennium
Pipeline Company. The compressor station will be built near Plaintiffs’ homes. FERC moved
for summary judgment, and the motion will be granted.
I. FACTS
Millennium Pipeline Company (Millennium) owns a natural gas pipeline system
that runs across southern New York. The pipeline is subject to the jurisdiction of FERC under
the Natural Gas Act, 15 U.S.C. §§ 717, et seq. Millennium applied for a certificate of public
convenience and necessity from FERC to build a 12,260 horsepower compressor station for the
purpose of facilitating the flow of the natural gas through the pipeline. The proposed compressor
station would be located “within several hundred yards” of Plaintiffs’ homes in Minisink, New
York. Cross Mot. for Summ. J. (Cross MSJ) [Dkt. 14] at 7. Plaintiffs object to the project,
alleging that the compressor station will be toxic, hazardous, and noisy. Id. at 9. On July 17,
1
2012, FERC granted the certificate of public convenience and necessity. See Cross MSJ, Ex.
2A 1 (FERC Docket No. CP11-515, Order Issuing Certificate, 140 FERC ¶ 61,045 (July 17,
2012)). On December 5, 2012, FERC denied and dismissed a petition for rehearing, stating that
“Commission advisory staff did not produce independent ‘evidence’ to be used by the
Commission as a basis for its decisions.” Id., Ex. 2B (FERC Docket No. CP11-515, Order
Denying and Dismissing Requests for Reh’g, 141 FERC ¶ 61,198, ¶ 73, n.111 (Dec. 5, 2012)).
Plaintiffs then filed a petition for review of FERC’s order. See Minisink Residents for
Environmental Preservation & Safety v. FERC, Case No. 12-1481 (D.C. Cir. 2013). 2
The FERC proceeding generated a large public record, including an
Environmental Assessment, see FERC Exhibits, Tao Decl. [Dkt. 12-1] ¶ 6, as well as the FERC
Orders cited above, i.e., the Order Issuing the Certificate and the Order Denying and Dismissing
Requests for Rehearing. Hoping that additional FERC records will assist them in their
opposition, Plaintiffs seek disclosure of records related to Millennium’s application that are not
in the public record. To obtain these records, Mr. Odland sent one FOIA request to FERC and
Mr. Mojica sent two FOIA requests to FERC, as described below. Their requests were
overlapping.
A. Mr. Odland’s Request FY12-33
On March 7, 2012, Mr. Odland submitted a FOIA request and on March 14, 2012
he amended it. As amended, the request sought: all email and correspondence between FERC
staff and between FERC staff and Millennium related to the compressor station proceeding; all
hydraulic analyses and models submitted by Millennium; draft proposals and recommendations
1
As part of Plaintiffs’ cross motion for summary judgment, Plaintiffs filed Exhibits 1 through 5.
See Pls. Exhibits [Dkt. 14-2].
2
Minisink is scheduled for oral argument before the Circuit on May 1, 2014.
2
relating to the Environmental Assessment; studies submitted by Millennium; and lists of
landowners near the project. Id. ¶ 15. FERC assigned the FOIA request tracking number FY12-
33 and began to search and release documents on a rolling basis. According to the Declaration
of Leonard Tao, Director of the Office of External Affairs at FERC, FERC released forty-seven
documents on April 25, 2012. Tao Decl. ¶ 19. On June 4, 2012, FERC withheld five
documents, which were hydraulic models. Id. ¶ 21. Rolling production continued. On July 27,
2012 FERC released fifty-five documents, see id. ¶ 23, and on September 28, 2012, it released
twenty-seven documents, see id. ¶ 25. The fifth and final response to Mr. Odland’s Request
FY12-33 was issued on November 8, 2012: FERC released eighty-three documents, forty-nine of
which were redacted pursuant to Exemption 5 or 6, and it withheld 575 documents based on
Exemptions 3, 4, 5, 6, and 7(F). Id. ¶ 27. In the November 8, 2012 notice, FERC notified Mr.
Odland of his appeal rights, i.e., that under 18 C.F.R. § 388.110(a)(1), “any appeal from this
determination must be filed within 45 days of the date of this letter.” FERC Exhibits, Ex. 11
[Dkt. 12-13] (Nov. 8, 2012 letter from FERC to Odland) at 8.
Mr. Odland appealed the June 4 decision withholding a hydraulic model, and that
appeal was denied. Tao Decl. ¶¶ 22, 24. Mr. Odland also separately appealed the withholding of
documents under FOIA Exemptions 3, 5, and 6. The withholding under Exemption 3 was
reversed and that document, a cultural resource report, was released. Id. ¶ 30. Eleven
documents that had been withheld under Exemption 5, as applicable to the deliberative process
privilege, were ordered released in part, with portions redacted pursuant to Exemption 5. Id.3
The Exemption 6 withholding of names, addresses and personal information of landowners was
upheld. Id. 3
B. Mr. Mojica’s Request FY12-60
On June 29, 2012, Mr. Mojica sent a FOIA request to FERC seeking some of the
same documents that Mr. Odland sought, as well as other records. Mr. Mojica requested, inter
alia, email and correspondence among FERC staff, email and correspondence between FERC
staff and Millennium, landowner lists, and background information on FERC employees. Id.
¶ 36. FERC labeled this Request FY12-60. On August 10, 2012, FERC notified Mr. Mojica that
it would release documents on a rolling basis and it released twenty-eight documents, thirteen of
which were redacted pursuant to the personal privacy interest protected by FOIA Exemption 6.
Id. ¶ 39. FERC also notified Mr. Mojica that pursuant to 18 C.F.R. 388.110(a)(1), “any appeal
from this determination must be filed within 45 days of the date of this letter.” FERC Exhibits,
Ex. 19 [Dkt. 12-21] (Aug. 10, 2012 letter from FERC to Mojica) at 5. Mr. Mojica did not appeal
the August 10 decision and did not wait for a final release, but instead filed this lawsuit on
February 4, 2014.
On March 20, 2013, FERC issued its final response to FY12-60, and released
sixty-four documents, forty-nine of which were redacted in accordance with Exemption 5
(deliberative process privilege) and Exemption 6 (personal privacy). Id. ¶ 43. Five hundred
fifty-four documents were withheld via Exemption 5. Id. 4
3
Subsequently, FERC discovered nineteen documents that had been inadvertently omitted.
FERC disclosed eleven in full and redacted eight under Exemption 5. Tao Decl. ¶ 32.
4
As a courtesy, FERC notified Mr. Mojica that there were 1,200 documents in the public record
related to Millennium’s proposed compressor, and FERC sent Mr. Mojica over three hundred of
these. Tao Decl. ¶¶ 40, 43. On May 13, 2013, FERC released to Mr. Mojica an additional
fifteen documents responsive to Request FY12-60 that it had inadvertently omitted; five of these
were redacted under Exemption 5. Id. ¶ 46.
4
C. Mr. Mojica’s Request FY12-66
On August 10, 2012, Mr. Mojica sent another FOIA request to FERC, this time
asking for the all studies and analysis performed by FERC staff of Millennium’s hydraulic data,
as well as privileged documents submitted by Millennium as Accession No. 20120730-5151. Id.
¶ 48. FERC assigned the tracking number FY12-66. On September 7, 2012, FERC provided
public documents as a courtesy and continued to process the request on a rolling basis. Id. ¶ 52.
On November 20, 2012, FERC withheld the following: a cultural resource report; five hydraulic
models; a Compressor Station Site Plan; a response to FERC data requests dated November 22,
2011; and FERC staff draft analyses of Millennium models. FERC invoked FOIA Exemptions
3, 4, 5, and 7(F). Id. ¶ 54. FERC also notified Mr. Mojica of his right to appeal within 45 days,
under 18 C.F.R. 388.110(a)(1). FERC Exhibits, Ex. 26 [Dkt. 12-28] (Nov. 20, 2012 letter from
FERC to Mojica) at 7. Mr. Mojica appealed the assertion of Exemptions 3 and 5, but did not
appeal the assertion of Exemption 4 or 7(F). Tao Decl. ¶ 55. The Office of General Counsel
required that the cultural resource report be released as non-exempt under Exemption 3, but
upheld the application of Exemption 5. Id. ¶ 56. 5
D. CEII Requests for Records Withheld under Exemption 7(F)
The records that FERC withheld solely pursuant to Exempt 7(F) constituted
Critical Energy Infrastructure Information (CEII). Requesters can elect to seek such information
through FERC’s separate CEII request process. See 18 C.F.R. § 388.113. CEII material may be
released to a requester with a legitimate need for the information so long as the requester signs a
non-disclosure agreement. Id. Through the CEII process, Plaintiffs were able to obtain
5
FERC later determined that it mistakenly omitted one document responsive to Request FY12-
66, but the document could be obtained by Plaintiffs because determined that it is publically
available in FERC’s eLibrary. Tao Decl. ¶ 58.
5
hydraulic model information (the same hydraulic information sought in FOIA requests FY12-33
and FY12-66) as well as other technical material and confidential commercial information. Tao
Decl. ¶¶ 60-61; Cross MSJ at 11.
E. This Suit and Documents No Longer in Contention
Messrs. Odland and Mojica filed this suit in February 2013, seeking disclosure of
the exempt documents. Millennium filed an unopposed motion to intervene, which was granted.
See Minute Order Feb. 21, 2013. FERC moved for summary judgment, see FERC Mot. for
Summ. J. (MSJ) [Dkt. 11], and Plaintiffs filed a cross motion for summary judgment/opposition,
see Cross MSJ; Opp’n [Dkt. 14].
Subsequently, the parties conferred and agreed to narrow the scope of documents
in contention. As a result, the following documents are no longer in dispute:
Hydraulic models of Millennium’s pipeline system;
Material from a compressor manufacturer, Solar Turbines;
Cultural Resource Reports;
Rate and accounting documents;
Documents relating to internal agency review of comments
submitted by the public in the proceeding;
Intra-agency emails discussing data requests and draft data
requests; and
Intra-agency emails discussing Millennium’s responses to data
requests.
See FERC Reply [Dkt. 21] at 2-3; id., Supp. Tao Decl. [Dkt. 21-1] ¶¶ 4-8; Millennium Reply
[Dkt. 19] at 1-36; Pls. Surreply [Dkt. 25-1] at 2, 11-13. With regard to the records withheld in
6
FERC filed its brief as a Reply at docket 21 and also filed the same document at docket 22 as
an opposition to Plaintiffs’ cross motion; Millennium filed a Reply in support of FERC’s motion
6
whole or in part, FERC filed three amended Vaughn 7 indices. See FERC Reply, Ex. 2 (FY12-33
Vaughn Index) [Dkt. 21-2], Ex. 3 (FY12-60 Vaughn Index) [Dkt. 21-3]; Ex. 4 (FY12-66 Vaughn
Index) [Dkt. 21-4]. 8 As described below, other documents that were withheld in whole or in part
remain in dispute. See generally Pls. Surreply. Plaintiffs do not challenge the adequacy of
FERC’s search for the requested records; instead, they challenge certain asserted exemptions to
disclosure.
II. LEGAL STANDARD
A. Summary Judgment
FERC contends that it is entitled to summary judgment because there is no
genuine dispute as to any material fact and it is entitled to judgment as a matter of law. See Fed.
R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Summary judgment
is properly granted against a party who “after adequate time for discovery and upon motion . . .
fails to make a showing sufficient to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). In ruling on a motion for summary judgment, a court must draw all
justifiable inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence
as true. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than
“[t]he mere existence of a scintilla of evidence” in support of its position. Id. at 252.
for summary judgment at docket 19 and also filed the same document at docket 20 as an
opposition to Plaintiffs’ cross motion.
7
The D.C. Circuit’s decision in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), requires
agencies to prepare an itemized index correlating each withheld document, or portion thereof,
with a specific FOIA exemption and the agency’s nondisclosure justification.
8
The indices were amended versions of those previously filed. See Notice of Filing Vaughn
Indices [Dkt. 9].
7
B. FOIA 9
FOIA requires federal agencies to release government records to the public upon
request, subject to nine listed exceptions. See 5 U.S.C. § 552(b); Wolf v. CIA, 473 F.3d 370, 374
(D.C. Cir. 2007). Although FOIA “strongly favors prompt disclosure, its nine enumerated
exemptions are designed to protect those legitimate governmental and private interests that might
be harmed by release of certain types of information.” August v. FBI, 328 F.3d 697, 699 (D.C.
Cir. 2003) (citation omitted; internal quotation marks omitted). Because “disclosure, not
secrecy, is the dominant objective of the Act,” Dep’t of the Air Force v. Rose, 425 U.S. 352, 361
(1976), the exemptions are narrowly construed, see Dep’t of Justice v. Tax Analysts, 492 U.S.
136, 151 (1989).
To prevail in a FOIA case, the plaintiff must show that an agency has improperly
withheld agency records. Tax Analysts, 492 U.S. at 142; United We Stand Am., Inc. v. IRS, 359
F.3d 595, 598 (D.C. Cir. 2004). The agency must show that its search for responsive records
was adequate, that any exemptions claimed actually apply, and that any reasonably segregable
non-exempt parts of records have been disclosed after redaction of exempt information. See,
e.g., Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978); Sanders v. Obama, 729 F. Supp. 2d
148, 154 (D.D.C. 2010).
FOIA cases are typically decided on motions for summary judgment. Miscavige
v. IRS, 2 F.3d 366, 368 (11th Cir. 1993); Rushford v. Civiletti, 485 F. Supp. 477, 481 n.13
(D.D.C. 1980). A court may award summary judgment in a FOIA case solely on the basis of
information provided by the agency in declarations when the declarations describe “the
documents and the justifications for nondisclosure with reasonably specific detail, demonstrate
9
A case brought under FOIA presents a question of federal law over which this Court has
original jurisdiction. See 28 U.S.C. § 1331.
8
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.”
Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); see also Vaughn, 484 F.2d
at 826–28. An agency’s declarations are accorded “a presumption of good faith, which cannot
be rebutted by purely speculative claims about the existence and discoverability of other
documents.” SafeCard Servs. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal citation
and quotation marks omitted).
III. ANALYSIS
A. Exhaustion
1. FY12-66 Vaughn Index, Documents 1 and 10 through 26,
With regard to Mr. Mojica’s Request FY12-66, Plaintiffs seek the release of
documents 1 and 10 through 26, referred to as “Data Runs.” 10 See FY12-66 Vaughn Index at 1-
2, 13-29 (Documents 1, 10-26). FERC withheld these documents pursuant to three different
Exemptions: 4, 5, and 7(F). Through an administrative appeal, administrative remedies with
regard to Exemption 5 were exhausted but not with regard to Exemptions 4 and 7(F). FERC and
Millennium argue that the Court should dismiss the claim for these documents due to failure to
exhaust administrative remedies.
“Exhaustion of administrative remedies is generally required before filing suit in
federal court so that the agency has an opportunity to exercise its discretion and expertise on the
matter and to make a factual record to support its decision.” Oglesby v. U.S. Dep’t of the Army,
920 F.2d 57, 61 (D.C. Cir. 1990) (quoted in Hidalgo v. FBI, 344 F.3d 1256, 1258 (D.C. Cir.
10
While FERC asserts that Plaintiffs waived their claim to FY12-66 documents 10 through 26,
see Supp. Tao Decl. ¶ 12, Plaintiffs make clear in their Surreply that they “rescind consent” to
remove documents 10 through 26 from contention. See Pls. Surreply at 2.
9
2003)). While the exhaustion requirement is not jurisdictional, see Hidalgo, 344 F.3d at 1259,
FOIA requires exhaustion on the principle that permitting judicial review prior to exhaustion
would cause premature interference with agency processes, would deny the court the benefit of
the agency’s expertise, and would undermine the creation of an adequate record for review.
Ryan v. Bentsen, 12 F.3d 245, 247 (D.C. Cir. 1993) (citing Weinberger v. Salfi, 422 U.S. 749,
765 (1975)). When a claim has not been exhausted, it should be dismissed under Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. Hidalgo,
344 F.3d at 1260.
Plaintiffs concede that they have not exhausted administrative remedies regarding
Exemptions 4 and 7(F), 11 but they point out that they have sufficiently exhausted administrative
remedies as to Exemption 5. Administrative exhaustion of their Exemption 5 challenge does not
save their claim here. Administrative exhaustion applies to issues and not to whole requests.
See, e.g., Toensing v. Dep’t of Justice, 890 F. Supp. 2d 121, 141 (D.D.C. 2012) (dismissing for
failure to state a claim unexhausted challenges to agency’s decision to withhold documents, even
though FOIA requester had exhausted claim that agency’s search for documents was
inadequate); Porter v. CIA, 778 F. Supp. 2d 60, 68 (D.D.C. 2011) (granting summary judgment
to agency where FOIA requester exhausted claim regarding the adequacy of search but failed to
exhaust claim regarding timeframe of search). Because FERC relied on Exemptions that were
not administratively appealed by Plaintiffs, Plaintiffs’ challenge to FERC’s decision to withhold
11
Plaintiffs explain that they did not challenge data withheld under Exemption 7(F) because it
could be obtained through the Commission’s CEII regulations, and they did not challenge the
application of Exemption 4, relating to confidential commercial information, because FERC did
not provide sufficient information to permit a “meaningful challenge.” Surreply at 3 nn. 1, 2.
The reasons for Plaintiffs’ failure to exhaust are not important here; what is critical is that they
failed to exhaust administrative remedies by failing to appeal FERC’s withholding under all
claimed Exemptions, 4, 5, and 7(F).
10
those records has not been exhausted. To be clear: even if the Court were to decide that
Exemption 5 did not apply to FY12-66 Vaughn Index documents 1 and 10-26, Plaintiffs would
not be entitled to their release because FERC also withheld these records under Exemptions 4
and 7(F). Accordingly, Plaintiffs’ claims concerning the release of FY12-66 documents 1 and 10
through 26 will be dismissed under Rule 12(b)(6).
2. FY12-60 Records Withheld Under Exemption 5 or 6
The FY12-60 Vaughn Index, see Dkt. 21-3, identifies more than 500 documents
withheld by FERC pursuant to either Exemption 5 or 6. FERC first responded to FY12-60 on
August 10, 2012, when it notified Mr. Mojica that it would release documents on a rolling basis.
At that time, FERC released twenty-eight documents, thirteen of which were redacted pursuant
to Exemption 6. FERC also notified Mr. Mojica that any appeal had to be filed within 45 days.
FERC Exhibits, Ex. 19 [Dkt. 12-21] (Aug. 10, 2012 letter from FERC to Mojica) at 5. Mr.
Mojica did not appeal; instead, he joined Mr. Odland in filing this suit on February 4, 2014.
More than a month later, on March 20, 2013, FERC issued its final response to FY12-60,
releasing some documents while redacting and withholding others under Exemption 5 or 6.
While it is undisputed that Plaintiffs’ did not exhaust administrative remedies
with regard to FY12-60 before filing this suit, administrative exhaustion is excused when an
agency does not make its FOIA decision, or at least inform the requester of the scope of the
documents that it will produce or withhold, within the relevant statutory time frame. Citizens for
Responsibility & Ethics in Wash. v. FEC, 711 F.3d 180, 184-85 (D.C. Cir. 2013) (citing 5 U.S.C.
§ 552(a)(6) (providing agencies twenty working days to respond to FOIA requests, which can be
extended up to thirty additional working days). FERC concedes that its August 10, 2012
response to Request FY12-60 only “partially communicated its determination with respect to
11
some of [the] requests.” FERC Reply at 6. This suit was filed February 4, 2012. FERC issued
its final response to FY12-60 on March 20, 2013. Due to FERC’s lack of clarity in its first
response to Request FY12-60 and the long delay before its final response, the failure to exhaust
remedies with regard to FY12-60 is excused under recent D.C. Circuit precedent.
B. Exemption 5
1. Generally
Plaintiffs challenge FERC’s withholding of over 500 records in response to
FY12-33 and FY12-60 pursuant to Exemption 5. Exemption 5 protects from disclosure “inter-
agency or intra-agency memoranda or letters which would not be available by law to a party
other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). Exemption 5
encompasses material that is protected under the attorney-client privilege, the attorney work-
product privilege, and the deliberative process privilege. Coastal States Gas Corp. v. Dep’t of
Energy, 617 F.2d 854, 862 (D.C. Cir. 1980); see also NLRB v. Sears, Roebuck & Co., 421 U.S.
132, 149 (1975) (Exemption 5 includes all documents “normally privileged in the civil discovery
context.”); Baker & Hostetler LLP v. Dep’t of Commerce, 473 F.3d 312, 321 (D.C. Cir. 2006)
(same).
FERC invoked Exemption 5, via the deliberative process privilege, for numerous
records. See FY12-33 Vaughn Index; FY-12-66 Vaughn Index. This privilege protects records
“reflecting advisory opinions, recommendations and deliberations comprising part of a process
by which governmental decisions and policies are formulated.” NLRB, 421 U.S. at 150.
Exemption 5 covers “recommendations, draft documents, proposals, suggestions, and other
subjective documents which reflect the personal opinions of the writer rather than the policy of
the agency.” Coastal States, 617 F.2d at 866. Such documents are protected in order to promote
12
“the quality of agency decisions by protecting open and frank discussion among those who make
them within the Government.” Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532
U.S. 1, 9 (2001); accord Tax Analysts v. IRS, 117 F.3d 607, 617 (D.C. Cir. 1997) (the quality of
decision-making would be seriously undermined if agencies were forced to operate in a “fish
bowl” since open and frank discussion regarding legal or policy matters would be impossible).
To qualify for withholding, material must be both predecisional and deliberative.
Judicial Watch, Inc. v. Dep’t of Energy, 412 F.3d 125, 129 (D.C. Cir. 2005).
A document is predecisional if it was prepared in order to assist an
agency decisionmaker in arriving at his decision, rather than to
support a decision already made. Material is deliberative if it
reflects the give-and-take of the consultative process. [The D.C.
Circuit’s] recent decisions on the deliberativeness inquiry have
focused on whether disclosure of the requested material would
tend to discourage candid discussion within an agency.
Petroleum Info. Corp. v. Dep’t of Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992) (alteration in
original) (citations and internal quotation marks omitted). The deliberative process privilege
generally does not cover the purely factual portions of documents, except in cases where the
factual material “is so inextricably intertwined with the deliberative sections of documents that
its disclosure would inevitably reveal the government’s deliberations.” In re Sealed Case, 121
F.3d 729, 737 (D.C. Cir. 1997). A document may lose its status if it merely memorializes or
evidences the policy the agency ultimately adopted on an issue or because the agency used the
document in its dealings with the public. Eugene Burger Mgmt. Corp. v. Dep’t of Hous. &
Urban Dev., 192 F.R.D. 1, 5 (D.D.C.1999) (citing Coastal States, 617 F.2d at 866).
2. Sufficiency of Vaughn Indices for Determination of Whether Exemption 5
Was Properly Invoked
Plaintiffs complain that the FY12-60 and FY12-33 Vaughn Indices are too vague
because they groups records and omits the identities of document authors and recipients. By way
13
of example, Plaintiffs cite records 90-98 and 99-102 listed in FY12-33 Vaughn Index, see Pls.
Surreply at 6-7, which involved data requests and draft data requests:
Documents 90-98
Description
Internal email among lower level staff in the Office of General
Counsel and the Office of Energy Projects. The emails regard
possible agency data requests to be issued to the applicant in the
record. Data requests are questions from the agency to the
applicant to clarify portions of the application or to seek additional
information from the applicant. The possible data requests cover
issues such [as] alternatives to the project, the location of the
project, project engineering, and the project capacity.
Dated: September 12, 2011 – October 13, 2011
Exemption Invoked
Exemption 5: Deliberative Process Privilege
Factual Basis for Withholding
The documents consist of intra-agency emails among lower level
agency staff. The emails are pre-decisional because they occurred
prior to the issuance of the final data requests in the record. The
emails also occurred prior to the issuance of the Environmental
Assessment in February 2012 or the Order in July 2012. The
emails are part of the deliberative process that went into preparing
the data requests prior to issuance. These emails have staff’s
opinion and recommendations about data requests regarding
alternatives to the project, project engineering, and project
capacity. In doing so[,] staff provides opinions about potential
data requests as well [as] information staff would like to obtain
from the applicant. Release could chill candid discussion by
disclosing lower staff’s opinions or disclos[ing] issues that
ultimately did not form the basis of the agency’s final decision.
Documents 99-102
Description
Internal email among lower level staff in the Office of Energy
Projects and the Office of General Counsel regarding data requests
issued in the record on November 16, 2012. Data requests are
questions from the agency to the applicant to clarify portions of the
application or to seek additional information from the applicant.
The emails discuss engineering alternatives to the proposed project
raised in the data requests.
14
Dated: November 16-17, 2012
Exemption Invoked
Exemption 5: Deliberative Process Privilege
Factual Basis for Withholding
The documents consist of intra-agency emails among lower level
agency staff. The emails occurred prior to the issuance of the
Environmental Assessment in February 2012 or the Order in July
2012. The Agency’s preparation of data requests is part of the
deliberative process to evaluate the application. The emails are
deliberative and include staff’s assessment and views as to
potential engineering issues raised in the data requests that were
filed in the record on November 16, 2012. Staff’s discussion
reflects preliminary opinions about engineering alternatives.
Release could chill candid discussion by disclosing opinion[s] or
disclos[ing] issues that did not form the basis of the agency’s final
decision.
FY12-33 Vaughn Index at 34-35. 12 Plaintiffs argue that “[a]bsent names or titles for each author
and recipient of each document, the court cannot determine who initiated the communication or
the individual’s role in the decision-making process, which in turn sheds light on whether a
document falls within the scope of deliberative process.” Pls. Surreply at 7.
Plaintiffs’ complaint of vagueness is baseless. While FERC must prove that
information withheld fits within the claimed exemption, see Military Audit Project, 656 F.2d at
738; Vaughn, 484 F.2d at 826-28, the purpose of a Vaughn index is to provide sufficient
information to permit a requester to challenge a withholding and to permit a court to decide
whether the record in question was reasonably withheld, see King v. Department of Justice, 830
F.2d 210, 218-19 (D.C. Cir. 1987). The agency does not need to justify withholdings
12
Note that Plaintiffs have withdrawn their request for intra-agency emails discussing data
requests and draft data requests. See Pls. Surreply at 11 (“Now that FERC has satisfactorily
identified the content of additional documents in the revised Vaughn Index, Plaintiffs withdraw
their request for drafts of the data requests.”).
15
“document-by-document” but instead may do so “category-of-document by category-of-
document,” so long as its definitions of the categories are sufficient to allow a court to determine
whether the claimed exemptions are properly applied. Gallant v. NLRB, 26 F.3d 168, 173 (D.C.
Cir. 1994). Further, the actual names of the agency staff who wrote and received these emails is
not critical to a determination regarding whether the deliberative process privilege applies. The
Vaughn Indices indicate that documents were drafted or received by “staff” or “lower level staff”
and the name of the office where they worked. For example, in the FY12-33 Vaughn Index, it
states that documents 90-98 are “[i]nternal email among lower level staff in the Office of
General Counsel and the Office of Energy Projects.” FY12-33 Vaughn Index at 34. This
information provided in the Vaughn Indices is sufficient to permit the Court to make a reasoned
decision regarding the records withheld.
3. Intra-Agency Email Re Motions, Intervention Requests, And Other
Filings
Plaintiffs challenge the Exemption 5 withholding of intra-agency email discussing
motions, intervention requests, and other filings in the public record of the underlying certificate
of need proceeding. See, e.g., FY12-33 Vaughn Index at 54-57 (documents 187-90, 192-93,
243-44); FY12-60 Vaughn Index at 28-30 (documents 95-100). The cited documents are emails
among FERC staff, opining as to whether individuals properly and timely requested intervention
in the FERC proceeding. See, e.g., FY12-33 Vaughn Index at 54, 56. The documents withheld
are deliberative, as they contain the internal dialogue among FERC personnel, and they are
predecisional as they predate the Agency’s July 2012 order regarding intervention. See id.Plaintiffs contend that a “clear statement” of public policy is not shielded by
Exemption 5. See, e.g., Evans v. OPM, 276 F. Supp. 2d 34, 40 (D.D.C. 2003) (privilege does not
protect OPM memo regarding the agency’s clear position regarding the adoption of a
16
government-wide hiring policy). The Vaughn Indices, however, do not indicate that the records
withheld contain a “clear statement” of public policy. Instead, the records reflect the views of
staff regarding certain motions, requests for intervention and other filings. Plaintiffs also insist
that “[i]ntervention serves as the mechanism by which the public participates in FERC
proceedings, and so the public has the right to know how FERC applies existing regulatory
policies when it reviews motions to intervene in contested proceedings that impact hundreds of
community members.” Pls. Surreply at 13. This objection completely fails to address the
elements of Exemption 5, i.e., whether the documents in question were deliberative and pre-
decisional. Accordingly, judgment will be entered in favor of FERC regarding the Exemption 5
withholding of all intra-agency email discussing motions, intervention requests, and other filings
in the FERC proceeding public record.
4. Drafts of the Environmental Assessment
Plaintiffs also seek drafts of the Environmental Assessment and related intra-
agency documents. The Environmental Assessment was filed in the public record on February
29, 2012. See Supp. Tao Decl. ¶ 23 (citing Environmental Assessment for Millennium Pipeline
Co., LLC’s Minisink Compressor Project under CP11-515, at 2-3 (Feb. 29, 2013)). FERC
withheld emails and drafts of the Environmental Assessment prepared prior to this date. See,
e.g., FY12-60 Vaughn Index at 51 (documents 181-82, 184-91) (documents include discussions
of alternatives, edits to analysis, and evaluative criteria). Some emails discuss draft language for
the Environmental Assessment. FY12-33 at 64-65 (documents 260-63) (including emails
regarding drafts of the Environmental Assessment and notes, changes and edits). Other
documents withheld are internal presentations, memoranda, reports, and related drafts, which
provide initial recommendations and analysis. Id. at 73-74 (documents 287-94) (including staff
17
environmental analysis of alternatives to the proposed project). These records reflect the “give
and take” among FERC staff in preparing the Environmental Assessment. See Petroleum Info.
Corp., 976 F.2d at 1434.
Plaintiffs contend that FERC should be required to segregate and disclose any
purely factual data such as the cost of the facility, the level of air and noise emissions, the
number of impacted endangered species, and the size of the site. See Pls. Surreply at 14. Mr.
Tao declared that all segregable material was released, see Tao Decl. ¶ 14, and that “[t]here is no
additional segregable factual information that could be released without revealing protected
information,” see id. ¶ 64. The Vaughn Indices cited above refer to staff recommendations,
edits, and analyses but do not refer to any factual data. Thus, Plaintiffs merely speculate that the
drafts of the Environmental Assessment and related documents include factual data. The Court
is required to accord Mr. Tao’s Declarations a “presumption of good faith” that cannot be
rebutted by a purely speculative claim. See SafeCard, 926 F.2d at 1200.
5. Drafts of the FERC Order
Plaintiffs also seek preliminary drafts of the FERC Order and related intra-agency
documents. The FERC Order was filed in the public record on July 17, 2012. See Order
Issuing Certificate, 140 FERC ¶ 61,045 (July 17, 2012). Plaintiffs speculate that the drafts likely
include segregable factual data because Chairman Wellinghoff’s dissent contained “facts about
the fuel costs and emissions levels of the proposed project and alternatives” and because
Commissioner LaFleur’s dissent referenced “other staff environmental assessments and
criticized staff analysis.” Pls. Surreply at 15. An examination of these dissents reveals that the
Commissioners relied upon facts contained in the Environmental Assessment which was part of
the public record; there is nothing to indicate that the Commissioners relied on drafts or related
18
documents. See Order Issuing Certificate, 140 FERC ¶ 61,045 (July 17, 2012) (Wellinghoff and
LaFleur dissents). The Commission itself disavowed the existence of evidence produced by
FERC staff, specifically noting that “Commission advisory staff did not produce independent
‘evidence’ to be used by the Commission as a basis for its decisions.” Order Denying and
Dismissing Requests for Reh’g, 141 FERC ¶ 61,198, ¶ 73, n.111 (Dec. 5, 2012).
Again, Mr. Tao’s Declarations are entitled to a presumption of good faith.
Plaintiffs’ mere speculation that segregable factual data is contained in draft FERC orders is
insufficient to rebut this presumption.
6. Intra-agency Emails Regarding Legal Advice
Some documents withheld via the deliberative process privilege are also entitled
to protection by the attorney-client privilege. See FY12-33 Vaughn Index at 53-54, 56, 66, 87,
89 (Documents 173-86, 187-90, 192-93, 264-66, 366-72, 375-70); FY12-60 Vaughn Index at
34, 37, 39-42, 60, 64-65 (Documents 108-110, 118-20, 131-55, 218-24, 242-50, 251-55). These
documents are intra-agency emails regarding confidential legal advice and they contain “facts
divulged by staff to attorneys in the course of seeking advice” or “discussions among attorneys
in preparation for legal advice to staff or for legal proceedings.” Tao Decl. ¶¶ 33, 47. The
documents include, for example, communications between the Office of Energy Projects and
attorneys in the Office of General Counsel regarding the legal basis for the privileged treatment
of an exhibit to Millennium’s application, see FY12-60 Vaughn Index at 34 (Documents 108-
10), and the legal merit of a motion filed in the underlying proceeding, see id. at 37 (Documents
118-20).
Plaintiffs avow a need for the names of the parties involved in each
communication in order to determine whether the attorney-client privilege applies. This
19
objection is disingenuous, as FERC has clearly provided adequate information indicating that the
communications were between FERC staff and attorneys in the Office of General Counsel. Id.
7. Intra-agency Emails Regarding Congressional Inquiries
Plaintiffs further contend that FERC should release emails between FERC staff
and congressional staff. During the course of the underlying FERC proceeding, FERC received
congressional requests for information about the project. FERC released such emails in part,
redacting certain materials via the deliberative process privilege because they occurred prior to
FERC’s final response to the congressional inquiry and because the withheld portions included
staff recommendations and opinions for proposed responses to congressional inquiries about the
project. Supp. Tao Decl. ¶ 25; see FY12-33 Vaughn Index at 107 (Documents 430-53); FY12-
60 Vaughn Index at 69 (Document 272). FERC explained that the “[e]xchanges are deliberative
because Agency personnel are discussing prospective responses to the congressional inquiries
about the project. In doing so, the emails include staff recommending responses and providing
opinions.” See FY12-33 Vaughn Index at 107 (Documents 430-53).
Plaintiffs object to the application of Exemption 5 here, asserting without
authority that a FERC response to a congressional inquiry does not constitute an agency
“decision.” Pls. Surreply at 17. The deliberative process privilege is not aimed at the protection
of agency decisions; it protects the deliberative process from disclosure. Mead Data Central,
Inc. v. Dep’t of Air Force, 566 F.2d 242, 256 (D.C. Cir. 1977). Because FERC has shown that
the withheld portions of these emails were pre-decisional and deliberative, Exemption 5 was
properly invoked.
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8. Intra-agency Emails Regarding Public Outreach, Public Meetings, and
Public Inquiries
Plaintiffs also challenge FERC’s application of Exemption 5 to intra-agency
emails regarding public outreach, public meetings, and public inquiries. During the course of the
FERC proceeding, FERC received public inquiries and held open Commission meetings. A
number of records discuss FERC’s response to communications from the public. See, e.g.,
FY12-33 Vaughn Index at 85-87 (Documents 341-72) (emails discussing proper response to calls
and emails from public and residents near project); id. at 88-89 (Documents 373-79) (emails
regarding expected increased public activity at open meetings and how to appropriately deal with
same); FY12-60 Vaughn Index at 58 (Documents 211-16) (emails discussing appropriate
response to telephone inquiries after July FERC Order was released and rehearing was pending).
The withheld emails include FERC’s deliberations regarding the appropriate response to public
inquiries and public attendance at meetings while the underlying proceeding was pending.
Plaintiffs object, asserting that FERC’s application of policy regarding interaction
with the public is not pre-decisional or deliberative. Pls. Surreply at 17-18. However, the
Circuit has held that an internal discussion regarding the implementation of a policy is exempt
from disclosure under Exemption 5. Mead, 566 F.2d at 256. Mr. Tao did not assert that these
emails merely contain FERC policies. Instead, he explained that these emails include FERC
staff discussion about how to handle the increased public attention. Such discussions were pre-
decisional and deliberative, as they were part of the give and take among staff. They are
protected from disclosure under Exemption 5.
C. Exemption 6
Plaintiffs also challenge FERC’s redaction of names and addresses from
landowner lists provided in response to FY12-33 and FY12-60. FERC redacted the names and
21
addresses under Exemption 6, which protects from disclosure “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) (emphasis added). The term “similar files” is broadly interpreted
to mean not merely intimate information but all information that applies to a particular
individual. Lardner v. Dep’t of Justice, 638 F. Supp. 2d 14, 23 (D.D.C. 2009) (citing Dep’t of
State v. Wash. Post Co., 456 U.S. 595, 602 (1982)), aff’d, 398 F. App’x 609 (D.C. Cir. 2010).
The type of file containing the information is not relevant. Wash. Post, 456 U.S. at 602.
Exemption 6 protects privacy interests so long as they are “substantial,” which
has been defined broadly as anything “more than de minimis.” Multi Ag Media LLC v. Dep’t of
Agric., 515 F.3d 1224, 1229-30 (D.C. Cir. 2008). Whether the disclosure of names and
addresses on a list is a significant threat to the privacy of those listed or is merely a de minimis
threat “depends upon the characteristic(s) revealed by virtue of being on the particular list, and
the consequences likely to ensue.” Nat’l Ass’n of Retired Fed. Emps. v. Horner, 879 F.2d 873,
877 (D.C. Cir. 1989). Even if the names and addresses are publically available already, a finding
of substantial privacy is not precluded. See ACLU v. Dep’t of Justice, 655 F.3d 1, 12 (D.C. Cir.
2011) (finding substantial privacy interest in names of criminal defendants and docket numbers
even though information was public and readily accessible). Courts recognize that ordinarily
“[d]isclosure does not, literally by itself, constitute a harm; it is the requester’s (or another’s)
reaction to the disclosure that can sting.” Horner, 879 F.2d at 878.
Exemption 6 does not prevent disclosure when the individual’s legitimate privacy
interests are outweighed by a compelling public interest in disclosure. Senate of P.R. v. Dep’t of
Justice, 823 F.2d 574, 588 (D.C. Cir. 1987). Disclosure is in the public interest within the
meaning of FOIA if it “sheds light on an agency’s performance of its statutory duties.” Dep’t of
22
Justice v. Reporter’s Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989). No public
interest is served by “disclosure of information about private citizens that is accumulated in
various governmental files [when disclosure] reveals little or nothing about an agency’s own
conduct.” Id.In Horner, the National Association of Retired Federal Employees (NARFE)
requested, via FOIA, a list of the names and addresses of retired and disabled federal employees
from the Office of Personnel Management. 879 F.2d at 874. NARFE wanted to use the list of
annuitants to assist in its efforts to recruit new members and to assist in NARFE’s lobbying
activities, see id. at 874, 879, and NARFE argued that disclosure “would inform the public, at
least in part, where the money is going.” id. at 879. However, NARFE was unable to articulate
how releasing the names would reveal anything about the workings of the Government. “While
we can see how the percentage of the federal budget devoted to annuities . . . and other aggregate
data might be of public interest, disclosure of those facts would not be entailed in (and could be
accomplished without) releasing the records NARFE seeks here.” Id. Exemption 6 applied, as
there was no public interest in disclosure. The Circuit did “not linger over the balance;
something, even a modest privacy interest, outweighs nothing every time.” Id. at 879.
Plaintiffs seek the names and addresses withheld in order to challenge FERC’s
assertion in the underlying proceeding that only eighty-four residences will be impacted by
Millennium’s construction of the compressor in Minisink. See FERC Exhibits, Ex. 12 [Dkt. 12-
14] (Appeal of Resp. to FY12-33) at 5-7 (cited in Pls. Surreply at 19). Plaintiffs believe that
there are 190 existing homes, plus forty-nine homes pre-approved for construction, that are
located within a half mile radius of the proposed compressor station and thus that a total of 239
residences will be affected. Plaintiffs assert that the public interest in disclosure outweighs the
23
landowners’ privacy interest, and they rely on Columbia Riverkeeper v. FERC, 650 F. Supp. 2d
1121 (D. Or. 2009). There, the Oregon federal district court ordered FERC to disclose a mailing
list of persons in the path of a proposed pipeline, finding that Exemption 6 did not apply because
the individuals’ privacy interests were outweighed by the public interest in disclosure.
Disclosure of was in the public interest because it would reveal whether FERC had complied
with the public notice mandate. Columbia Riverkeeper, 650 F. Supp. 2d at 1130 (citing 18
C.F.R. § 380.9, which requires FERC to comply with 40 C.F.R. § 1506.6 mandating public
notice of NEPA-related 13 hearings); see also Gilman v. Dep’t of Homeland Security, Civ. No.
09-468(BAH), 2014 WL 984309, at *10 (D.D.C. Mar. 14, 2014) (disclosure of landowners in
vicinity of construction of U.S.-Mexico border wall would “shed light” on CBP’s planning and
construction of wall and thus public interest in disclosure outweighed privacy interests).
Columbia Riverkeeper does not apply here. “The record already contains ample
public document[ation] showing that FERC and Millennium provided notice of the project
through local newspapers, open house meetings, and mailings” and through the distribution of
“brochures and fliers.” Pls. Surreply at 19-20. Instead, Plaintiffs contend that they need
landowner names to determine whether “FERC’s notification procedures were effective.” Id. In
other words, Plaintiffs do not seek the landowner names and addresses in order to “shed light” on
whether FERC sent notice; instead, Plaintiffs seek to determine whether notice was received.
Whether notice was received is irrelevant to FERC’s conduct and thus is not a matter of public
interest. Because Plaintiffs have not shown that releasing the landowners’ names and addresses
would reveal anything about the workings of FERC, there is no public interest in disclosure. The
13
NEPA is the National Environmental Policy Act, 42 U.S.C. §§ 4321, et seq.; it requires
agencies to take a “hard look” at the environmental consequences of their projects before taking
action. Humane Soc’y of the U.S. v. Johanns, 520 F. Supp. 2d 8, 16 (D.D.C. 2007) (citing 42
U.S.C. § 4332).
24
Court “need not linger over the balance; something, even a modest privacy interest, outweighs
nothing every time.” Horner, 879 F.2d at 879. FERC properly invoked Exemption 6 when it
withheld the names and addresses from the landowner lists.
D. Segregability
If a record contains information that is exempt from disclosure, any reasonably
segregable information must be released after redacting the exempt portions, unless the non-
exempt portions are inextricably intertwined with exempt portions. 5 U.S.C. § 552(b); see
Trans-Pac. Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1028 (D.C. Cir. 1999). A
court errs if it “simply approve[s] the withholding of an entire document without entering a
finding on segregability, or the lack thereof.” Powell v. Bureau of Prisons, 927 F.2d 1239, 1242
n.4 (D.C. Cir. 1991).
Certain redacted materials were provided to Plaintiffs and other materials were
withheld in full. See generally Tao Decl.; Supp. Tao Decl. All segregable material was released,
see Tao Decl. ¶ 14, and material that was withheld was exempt from disclosure or was so
intertwined with protected material that segregation was not possible, see id. ¶ 64. The Court has
reviewed Mr. Tao’s declarations and finds that these submissions adequately specify “which
portions of the document[s] are disclosable and which are allegedly exempt.” See Vaughn, 484
F.2d at 827. Mr. Tao’s Declarations are accorded a “presumption of good faith” and Plaintiffs
have not succeeded in rebutting that presumption.
E. Administrative Procedure Act
Count II of the Complaint asserts a claim under the Administrative Procedure Act
(APA), 5 U.S.C. §§ 553, 701B706, which governs judicial review of final agency actions. The
APA, however, subjects agency action to judicial review only if there is no other “adequate
25
remedy.” 5 U.S.C. § 704. To determine whether an adequate remedy exists, courts focus on
“whether a statute provides an independent cause of action or an alternative review procedure.”
El Rio Santa Cruz Neighborhood Health Ctr., Inc. v. Dep’t of Health & Human Servs., 396 F.3d
1265, 1270 (D.C. Cir. 2005). The alternative remedy is sufficient so long as it provides relief of
the “same genre.” Id. at 1272. Thus, courts have declined jurisdiction over APA claims seeking
relief available under FOIA. See, e.g., Walsh v. Dep’t of Veterans Affairs, 400 F.3d 535, 537-38
(7th Cir. 2005); Feinman v. FBI, 713 F. Supp. 2d 70, 76 (D.D.C. 2010). Accordingly, summary
judgment will be granted to FERC with regard to Count II of the Complaint, asserting an APA
claim.
F. Filing of Surreply
Plaintiffs filed their original surreply, 14 Dkt. 24, and then filed an errata, with an
amended version of the Surreply. See Errata [Dkt. 25], Att. 1 (Surreply) [Dkt. 25-1]. FERC
objects to Plaintiffs’ filing of the corrected Surreply as an Errata because it not only made
clerical corrections, it also included additional substantive legal argument. Mot. to Modify the
Record in Resp. to Errata [Dkt. 26]. FERC seeks to require Plaintiffs to obtain leave to file the
corrected Surreply. See id. at 1-2. FERC’s point is well-taken, as the purpose of an errata is to
correct mere clerical errors. However, FERC and Millennium are not prejudiced by the filing of
the corrected Surreply, and thus the Court accepts it for filing. Accordingly, FERC’s motion to
modify the record will be denied.
IV. CONCLUSION
For the reasons set forth above, FERC’s motion for summary judgment [Dkt. 11]
will be granted, and judgment will be entered in its favor. Plaintiffs’ cross motion for summary
14
The Court permitted Plaintiffs to file a surreply brief when it approved the briefing schedule
for this case. See Minute Order Apr. 18, 2013.
26
judgment [Dkt. 14] will be denied. FERC’s motion to modify the record [Dkt. 26] will be
denied. A memorializing Order accompanies this Memorandum Opinion.
Date: March 27, 2014
/s/
ROSEMARY M. COLLYER
United States District Judge
27