Inst. for Energy Rsch. v. FERC, No. 22-2114, 2023 WL 6121878 (D.D.C. Sept. 19, 2023) (Howell, J.)

Inst. for Energy Rsch. v. FERC, No. 22-2114, 2023 WL 6121878 (D.D.C. Sept. 19, 2023) (Howell, J.)

Re:  Request for calendars for FERC Commissioners during an approximately 18-month period

Disposition:  Denying plaintiff’s motion for summary judgment; granting in part and denying in part defendant’s motion for summary judgment

• Litigation Considerations, Adequacy of Search; Procedural Requirements, Searching for Responsive Records:  The court holds that “FERC has demonstrated that an adequate search for responsive records was conducted here.”  “[Defendant’s] Declaration demonstrates that FERC ‘conducted a search reasonably calculated to uncover all relevant documents.’”  “Although plaintiff correctly points out that Federal Rule of Civil Procedure 56 requires factual positions in briefing and declarations to be supported by admissible evidence in the record . . . in FOIA cases, ‘an agency declarant need not have been personally involved in the events reflected in, or preparation of, the records at issue but merely have personally been advised about or reviewed those records to meet the Rule 56 standard.’”  “Here, the OEA Director supervises and ‘oversees the processing of [FOIA] requests’ and attests that the information relayed in her Declaration is ‘based on information provided to [her] by employees under [her] supervision,’ . . . giving her the requisite personal knowledge to attest to the adequacy of FERC’s search for records responsive to plaintiff’s FOIA request.”  “Plaintiff alternatively challenges that FERC’s search was inadequate by limiting the search only to ‘official’ calendars, claiming that FERC failed to ‘explain why it believed that one “official” calendar on one software platform was likely the only repository for responsive records particularly given Plaintiff’s specific search parameters,’ . . . referring presumably to plaintiff’s broadly worded FOIA request as ‘search parameters’ that could encompass any calendars maintained by the Commissioners, including for personal matters.”  “This challenge is unpersuasive for two reasons.”  “First, plaintiff's focus on FERC’s limitation of the search to ‘official’ calendars of the Commissioners as a flaw in the search process is an overreach.”  “As FERC accurately observes, the . . . Declaration’s use of the word ‘official’ ‘merely accounts for the possibility that the officials have personal calendars for tracking purely personal engagement[,]’ and ‘[s]imply serving as a government official does not mean that every aspect of the official’s personal life becomes subject to disclosure under FOIA.’”  “Second, to the extent plaintiff criticizes the search methodology as too limited, this critique also fails.”  “The . . . Declaration details a thorough search for all available calendars responsive to plaintiff’s FOIA request.”  “FERC’s Information Technology (‘IT’) staff, who assisted in performing the search identifying the calendars ultimately produced, confirmed that ‘no other calendars exist.’”

• Exemption 5, Deliberative Process Privilege; Litigation Considerations, Vaughn Index/Declaration:  The court holds that “the parties’ cross-motions with respect to FERC’s Exemption 5 withholdings are denied without prejudice.”  First, the court relates that “Plaintiff [argues] that FERC’s explanations of the redactions presented in the Vaughn Index and . . . Declaration are so sparsely detailed that FERC has not sufficiently ‘identified [the matters pending before the Commission] or the decisionmaking authority of the deliberators.’”  The court finds that, “[a]s to the latter criticism – regarding the deliberators’ authority in the decision-making process – the responsive documents at issue are calendars of two FERC Commissioners and, as such, reflect matters engaging their attention, plus the attendees at meetings or in calls about those matters, making plain the identity of the persons participating in any matter under discussion.”  “Thus, this aspect of plaintiff’s criticism is facile.”  “Yet, the dearth of any specific information about the redacted matters makes assessment of Exemption 5’s applicability difficult.”
  
  “FERC describes three general and overlapping categories of the Exemption 5 redacted calendar entries: (1) a ‘numerous’ number [of] ‘reference policy proposals[,]’ ‘some of [which] were never adopted[,]’ . . . ; (2) ‘the vast majority of entries are internal meetings involving only Commission staff and their efforts to resolve matters before the Commission,’ . . . ; and (3) ‘very few of the remaining items withheld pursuant to FOIA Exemption 5 are meetings with other Federal government agencies,’ . . . .”  “FERC elaborates that titles of ‘numerous’ calendar entries reflecting policy proposals are withheld because they are pre-decisional and deliberative, and there is foreseeable harm in releasing them.”  “Specifically, FERC claims that the ‘discussions and other work referenced in the calendar entries reflect the deliberative nature of such conferrals and work, as the work was being conducted at the indicated times because a decision had not yet been reached concerning the subject matter.’”  “Plaintiff challenges FERC’s invocation of Exemption 5 as insufficient on two grounds.”  “First, plaintiff points to the use of such vague numerical descriptions as ‘numerous,’ ‘vast majority,’ and ‘very few,’ to complain that this leaves unclear whether calendar entries referencing policy proposals, internal meetings, and meetings with other agencies encompass all the categories of records redacted pursuant to FOIA Exemption 5, or whether other categories of entries were also withheld pursuant to Exemption 5.”  “To be sure, the . . . Declaration could have been more artfully and precisely drafted, but, nonetheless, the [declarant] ‘reviewed the calendar entries that were withheld either in full or in part . . . pursuant to FOIA Exemption 5,’ referring to all such redactions, to conclude the withholdings were proper.”
  
  “Plaintiff’s second challenge to the insufficiency of FERC’s description of the redacted calendar entries has more traction, however.”  “Specifically, plaintiff complains that FERC’s Exemption 5 redactions are overbroad and insufficiently detailed, arguing that ‘FERC has not shown . . . that the deliberative process privilege applies to every word of every withholding of calendar information at issue’ and that the agency ‘has not pointed to any agency “decision” that was being contemplated or that was thereafter made, and it appears that in some cases no “superior and subordinate” relationship can possibly have existed between the parties to the underlying calendar event.’”  “Plaintiff is right.”  “With respect to each redaction made pursuant to Exemption 5, the withholding agency must ‘pinpoint an agency decision or policy to which the document contributed.’”  “Though ‘[t]he D.C. Circuit has recognized that an agency need not pinpoint an ultimate decision to which the document contributes to assert the privilege’ because ‘[a]ny requirement of a specific decision after the creation of the document would defeat the purpose of the exemption,’ . . . the agency withholding responsive records under the deliberative process privilege still ‘must show that the document was generated as part of a definable decision-making process’ even where the ultimate agency decision is not identified . . . .”  “FERC has not made this requisite showing.”  “Rather, FERC has failed to provide any details or explanation as to why each (or any) of the policy proposals, internal meetings, and external meetings redacted from the calendar concern predecisional material or what sort of ‘definable decision-making process’ the agency aims to protect.”  “FERC counters that calendar entries that reference policy proposals and internal meetings are inherently deliberative and therefore this broad justification is sufficient to support invocation of Exemption 5.”  The court finds that “in this case, plaintiff correctly points out that ‘[t]o the extent that FERC claims redactions “reflect deliberations on matters pending before the Commission,” [FERC] has not identified those matters or the decisionmaking authority of the deliberators.’”  “FERC has not explained, for example, why each redacted calendar entry is predecisional and deliberative by enabling the Court ‘to pinpoint an agency decision or policy to which these documents contributed,’ . . . or to assess whether the agency’s specific deliberative process at issue in each redacted calendar entry might be harmed by the release of these entries.”  “In short, a firm basis for assessing the Exemption 5 withholdings is missing on the record before this Court.” 
  
  “To be sure, justifying each redacted calendar entry across eighteen months of entries in a detailed and potentially lengthy Vaughn Index may be a time-consuming and even tedious task for FERC.”  “FERC cautions against demanding this level of detail to justify potentially hundreds of calendar redactions because this may discourage FERC staff from creating detailed calendar entries in order to avoid the types of burdensome FOIA requests initiated by plaintiff here.”  “Yet, under binding D.C. Circuit precedent, FERC must justify its redactions under the deliberative process privilege with respect to each redaction made – even if those redactions encompass hundreds of calendar entries.”  “That said, FERC may, but is not required to, justify its Exemption 5 withholdings on an entry-by-entry basis.”  “Redacted entries may be categorized or grouped, so long as the relevant categories are sufficiently distinct and particularized to allow this Court to evaluate whether the claimed exemption is properly applied.”  “When taking a categorical approach and grouping together like entries, however, FERC must provide ‘context or insight into the specific decision-making processes or deliberations at issue’ within each set of calendar entries and how those deliberations or decision-making processes ‘in particular would be harmed by disclosure[,]’ as opposed to ‘“nearly identical boilerplate statements” and “generic and nebulous articulations of harm[.]”’”
   
• Exemption 6:  The court relates that “FERC invokes FOIA Exemption 6 to justify some redactions in the Commissioners’ calendars produced in response to plaintiff’s FOIA request, explaining that these redactions withhold ‘personal information (such as family member activities), passcodes, the contact information of private citizens, and the names of lower-level staff.’”  The court finds that “FERC has sufficiently explained the privacy interests implicated by most categories of Exemption 6 redactions, while plaintiff has articulated no countervailing public interest in their disclosure.”  “Resultantly, FERC is entitled to summary judgment with respect to its Exemption 6 redactions, except as to ‘the names of lower-level staff.’”
  
  “Here, plaintiff does not contest that the information redacted from the calendars pursuant to Exemption 6 – birthdays, children's activities, the contact information of private citizens the Commissioners have contacted, and the names of lower-level staff who attended meetings with the Commissioners, all of which appeared on the Commissioners’ calendars – are ‘similar files,’ subject to Exemption 6.”
  
  The court finds that “FERC has sufficiently justified its Exemption 6 withholdings to protect from public disclosure personal information about Commissioners and their families and private contact information for non-governmental persons, whose names appear on the Commissioners’ calendars.”  “The private nature of Exemption 6 redactions of the contact information for private citizens, information related to family member activities and passcodes, is obvious, with concomitant obvious risks to privacy by disclosure and even breaches of telecommunications security as to the passcodes associated with call numbers.”  “Moreover, revealing such private information does not further the purposes of FOIA to allow scrutiny of agency action.” 
  
  “FERC sweeps within its Exemption 6 withholding, however, ‘the names of lower-level FERC staff’ that appear on the Commissioners’ responsive calendars, but this category of withheld information is of a totally different type than the purely private information relating to family and personal matters, contact information for private individuals and passcodes.”  “Plus, given that the names of these staffers appear on Commissioners’ calendars – reflecting their involvement or inclusion in meetings or on calls with Commissioners – the reason for their denomination as ‘lower-level’ by the agency is not obvious, and FERC makes no effort to describe which positions are considered ‘lower-level’ or why these particular staffers are so designated.”  “FERC’s categorical withholding of the names of so-called ‘lower-level staff’ is simply not sufficiently defined or explained to allow evaluation of whether the withholdings are proper.”  “Certainly, in circumstances where agency staff may be involved in or connected to controversial government decisions, particularly on issues associated with targeting for violence, harassment, or other security-related misconduct, withholding has been found appropriate.”  “On the record before the Court, FERC has made no effort to explicate what privacy interests ‘lower-level staff’ have in withholding due to ‘the consequences likely to ensue,’ . . . let alone how such interest outweighs the public interest in revealing their names.”  “The only privacy justification FERC offers for withholding the identities of ‘lower-level staff’ is its bald citation to several recent examples of federal judges facing threats or harm, such as Justice Brett Kavanaugh exiting a D.C. restaurant through the back door to avoid harassment from other restaurant patrons and the tragic murder of Judge Esther Salas’s son at her own home.”  “FERC fails to explain, however, how the targeting of federal judges has any relevance to the potential harm that FERC’s unnamed ‘lower-level staff’ – who operate in an entirely different branch of government with obligations largely unrelated to the federal judiciary’s – would face.”  “FERC’s justification for withholding the names of ‘lower-level staff’ thus plainly does not satisfy its burden under Exemption 6 of identifying these employees’ particular ‘characteristics’ that would prompt likely ‘consequences’ warranting privacy protection.”