Energy Pol’y Advocs. v. SEC, No. 22-01497, 2023 WL 6976071 (D.D.C. Oct. 23, 2023) (McFadden, J.)

Energy Pol’y Advocs. v. SEC, No. 22-01497, 2023 WL 6976071 (D.D.C. Oct. 23, 2023) (McFadden, J.)

Re:  Request for emails and messages discussing proposed disclosure requirements

Disposition:  Granting defendant’s motion for summary judgment

• Litigation Considerations, Adequacy of Search & Procedural Requirements, Searching for Responsive Records:  The court holds that “[t]he Commission’s declarations show that it complied with the search request to the letter.”  “First, the Commission’s Office of Information Technology (OIT) conducted an electronic search of email correspondence from the named officials for the requested dates using the exact keywords [plaintiff] designated in its FOIA request.”  “Though the Commission did not search for responsive emails in personal accounts, Commission staff stated that they do not use their personal addresses for work-related business.”  “Second, the OIT ran a search for non-email electronic messages sent to or from the named officials on Jabber, the Commission’s internal messaging platform.”  “It also searched those messages for the specified terms . . . .”  “This search returned one responsive message containing [one of the specified] term[s] . . . .”  “Since Commission staff can only send Jabber messages internally, OIT did not search for Jabber communications with the external recipients named in [plaintiff’s] request.”  “Nor did OIT conduct searches on other messaging platforms such as Teams, WhatsApp, or Signal, which the Commission officials avowed they did not use for Commission business during the relevant period.”  “Last, Commission staff searched the text messages on the named officials’ work phones.”  “Though text messages sent or received on agency-issued cell phones are not stored on a central system searchable by OIT, . . . Commission staff worked with the named officials to individually search their work phones for messages to the outside officials as well as messages containing [the specified terms].”  “These searches returned no messages with the outside officials but returned four pages of text messages containing the requested search terms.”
  
  “[Plaintiff] challenges the adequacy of the Commission's search on several grounds.”  “None persuades.”  “First, [plaintiff] contends that the Commission is required to name the specific employees who conducted the search.”  “Not so.”  “Courts have ‘repeatedly rejected the argument that an agency’s declaration must identify the individuals, by name, who conducted the searches.’”  “Second, [plaintiff] asserts that the Commission failed to construe its search terms liberally because it did not search for ‘written-out’ or plural versions of the specified terms.”  “But the Commission declarations note that searches for [the specified terms] would automatically return results for plural versions of those terms.”  “Last, [plaintiff] argues that the Commission’s search was inadequate because it did not search for responsive documents in personal email accounts.”  “As [defendant’s] declaration explains, the Commission is not able to directly search correspondence on any non-Commission email accounts.”  “Commission staff therefore asked the employees named in the request whether they used their personal email for Commission business, and they responded that they did not.”  “Countering this assertion, [plaintiff] points to the Commission’s disclosure of emails that [the] Chair . . . had forwarded from his personal email account to his work account.”  “But the release of these documents does not suggest that [the Chair] or any other official conducted Commission business from a personal account without forwarding those emails to their official account, as the law requires.”
   
• Exemption 5, Deliberative Process Privilege & Foreseeable Harm and Other Considerations; Litigation Considerations, Vaughn Index/Declaration:  The court “[c]onsider[s] . . . the applicability of Exemption 5 to the five pages of text messages and Jabber messages withheld by the Commission.”  The court finds that “[t]he withheld messages are both pre-decisional and deliberative.”  “As the Commission’s Vaughn index indicates, the messages all predated the proposed rulemakings – which [plaintiff] does not challenge.”  “The Commission also explains that the messages were deliberative because they reflected the consultative discussions regarding two proposed rulemakings.”  “The messages addressed the subject matter covered by the Commission’s proposed rulemakings, as well as the content and wording of specific provisions.”  “Such messages are deliberative.”  “Indeed, it would be hard to imagine content more clearly exemplifying the ‘give-and-take of the consultative process’ than informal internal agency dialogue about the nuts and bolts of a proposed rulemaking.”  “[Plaintiff] nonetheless complains that the Commission’s Vaughn index entries are repetitive and insufficiently detailed.”  “To the contrary, the Vaughn index describes specific content withheld, distinguishing, for example, between messages addressing the rulemaking's content and those addressing edits to proposed language.”  “If the Commission’s descriptions here are repetitive, it is because the withheld messages relate to the same climate-related rulemakings.”  “As for detail, the amount required will depend on the nature and content of the documents.”  “When the withheld content are mere text messages – not, say, detailed memos or expert reports – a short description will typically permit ‘adequate adversary testing of the agency’s claimed right to an exemption.’”  “After all, requiring an agency to provide granular descriptions of texts would, in effect, require disclosing the information the deliberative process privilege is supposed to protect.”  “How much can one say to describe a privileged sentence or two without giving the game away?”
  
  Regarding foreseeable harm, the court finds that “the Commission has adequately explained the sensitive nature of the information contained in the withheld text messages, the important role these exchanges play in its decisional process, and the effect disclosure would have on similar future exchanges.”  “This satisfies the deliberative process privilege’s ‘foreseeable harm’ requirement.”  First, “[b]ecause the Commission explained how the disclosure of messages proposing changes to and discussing the subject matter of a proposed rulemaking would lead staff to be less forthcoming in future rulemaking discussions, it satisfied its burden of showing foreseeable harm.”  The court relates that “[t]he Commission’s initial declaration made only generic assertions that disclosure of the predecisional messages would ‘chill discussions regarding SEC proposed rulemaking.’”  “But [the court finds that] the Commission appended an additional declaration to its reply memorandum providing a more ‘focused and concrete’ explanation of foreseeable harm.”  “The additional declaration notes that ‘[w]hen proposing and drafting a rule, SEC staff must consider a wide variety of options, including rule focus, breadth, and language.’”  “According to the declaration, Commission staff would be ‘reluctant to record their views and engage in open discussion during the rule drafting process’ if they knew that FOIA requests might expose these off-the-cuff conversations.”  “This chilling effect ‘could adversely affect rulemaking because good solutions are often found as staff share all possible approaches.’”  “Indeed, as the declaration explains, avoiding any chilling effect is particularly important when deliberations involve ‘controversial proposals and sensitive topics’ that benefit from open and expansive discussion on ‘all aspects of the proposal’ including any ‘differing viewpoints.’”  “This explanation of future harm is not ‘generalized’ or ‘boilerplate.’”  “Rather, it is similarly focused and concrete as explanations of harm that other courts have found adequate.”  “The additional declaration also explains that release of the withheld messages would lead to public confusion ‘by suggesting that views and approaches that were dismissed or changed during the drafting process are still relevant options being considered.’”  “Consistent with the Commission’s concern, ‘the D.C. Circuit has long recognized that the risk of public confusion “has a special force with respect to disclosures of agency positions or reasoning concerning proposed policies.”’”  “Releasing the Commission officials’ candid discussions, which might contradict the final rulemaking, would cause harmful confusion.”  “[Plaintiff] cites several cases that conclude that the agency’s explanation of future harm was vague or ‘boilerplate’ and contends that the Commission’s explanation here is even less specific.”  “If specificity is measured by word count, then [plaintiff] has a point.”  “But the Court has no bias against brevity – especially when the ‘context and purpose’ of the withheld information support a finding of foreseeable harm.”
   
• Litigation Considerations, “Reasonably Segregable” Requirements:  The court holds that “[t]he Commission . . . satisfied its burden to ‘demonstrate that all reasonably segregable material has been released.’”  “The mere fact that no segregable materials were disclosed does not overcome the presumption that Commission ‘complied with the obligation to disclose reasonably segregable material.’”  “[Plaintiff’s] bald assertion of bad faith defies common sense:  An attempt to segregate factual or nondeliberative material from the withheld text messages would likely leave only a few incoherent fragments, if anything.”