Inst. for Energy Rsch. v. FERC, No. 22-3414, 2024 WL 1091791 (D.D.C. Mar. 13, 2024) (Cooper, J.)

Inst. for Energy Rsch. v. FERC, No. 22-3414, 2024 WL 1091791 (D.D.C. Mar. 13, 2024) (Cooper, J.)

Re:  Request for text messages from three FERC employees

Disposition:  Granting in part and denying in part defendant’s motion for summary judgment

• Procedural Requirements, “Agency Records” & Searching for Responsive Records:  The court relates that “[plaintiff] claims FERC misconstrued its request by producing only ‘the specific texts that included the specified search terms.’”  “According to [plaintiff], FERC was required to produce ‘entire text message threads,’ even if only one message in the thread hit on a responsive term.”  “Because agencies may not redact ‘non-responsive information from a record deemed responsive,’ [plaintiff’s] challenge comes down to whether FERC properly defined a ‘record’ for purposes of the request.”  “Because FOIA, itself, does not define a record, agencies ‘in effect, define a “record” when they undertake the process of identifying records that are responsive to a request.’”  “Though they may define a ‘record’ in a ‘range of possible ways,’ the D.C. Circuit has erected some guideposts that inform that analysis.”  “First, the agency’s definition must be ‘reasonable’ . . . , and cannot flip ‘midway through litigation,’ . . . .”  “Second, the circuit has suggested that a set of criteria from DOJ’s Office of Information Policy (“OIP”) are helpful for ‘agencies to take into account.’”  The court points to Am. Immigr. Laws. Ass'n v. Exec. Off. for Immigr. Rev. (“AILA”), 830 F.3d 667, 670 (D.C. Cir. 2016), which cites to DOJ, OIP Guidance: Determining the Scope of a FOIA Request, FOIA Update, Vol. XVI, No. 3 (1995)).  “Those criteria include the requester’s intent, maintaining the integrity of the released documents, the scope of the request, the agency’s own knowledge regarding storage and maintenance of documents, efficiency, cost, resource allocation, and maintaining the public’s trust in transparency.” 
  
  “With those guideposts in mind, the Court finds FERC did not unreasonably define a record as a single text message.”  “FERC’s definition of a record as a single message was reasonable – at least for the first half of the request.”  “[Plaintiff’s] request was clear:  It sought ‘text messages’ that either (i) ‘include[d] anywhere’ ‘one or more’ of four words or (ii) were sent to or from one of six White House officials.”  “For the second half of the request, the whole thread might be the appropriate unit for a record as the request sought every message sent between the named FERC and White House officials.”  “But, of course, the agency found no records responsive to that half of the request.”  “By contrast, the first half of the request sought only the specific ‘text messages’ that hit on one of the listed terms – not text threads, text conversations, or text discussions.”  “Had [plaintiff] sought messages ‘pertaining to,’ ‘about,’ or ‘concerning’ one of the four referenced terms, then more than just a single message would be the appropriate unit for a record.”  “But [plaintiff] sought just messages’ “includ[ing]’ the referenced terms.”  “The other OIP criteria do not change the result.”  “Take ‘maintaining the integrity of the released documents.’”  “Arguably, FERC should have defined the text message that hit on the referenced term as well [as] surrounding messages as one record to maintain the messages’ integrity.”  “Or, as [plaintiff] contends, even if the agency properly defined a record as a single text, it was nonetheless required to produce surrounding messages as ‘necessary context.’”  “But these suggestions ignore a fundamental feature of text messages.”  “Unlike email threads, which tend to contain ‘a natural progression of conversation on a unified topic,’ . . . a text message thread captures the entire conversation history between two people, with no ‘Subject’ lines or discrete chains to demarcate new topics.”  “One moment you might text your colleague a question about the presentation for an upcoming meeting on ‘GHGs’ (or greenhouse gases), and the next you're discussing what snacks to bring to the meeting.”  “Are the texts about snacks part of the same conversation?”  “Or should the agency treat those messages as a new (and likely non-responsive) record?”  “The answer is unclear.”  “As [defendant] noted, the agency would be required to make ‘arbitrary’ calls about where one text-message record ends and another begins.”  “Had [plaintiff] submitted a differently worded request whose scope went beyond single messages, the Court would not let the agency throw its hands up in confusion.”  “But given that [plaintiff] requested only the specific text messages containing the referenced terms, FERC‘s construction was reasonable.”
  
  “For similar reasons, the criteria of efficiency, cost, and resource allocation also support the agency’s definition of a record.”  “Indeed, ‘a contrary conclusion would burden the agency with having to process [text messages] on topics wholly unrelated to the subject of the FOIA request – including ascertaining whether any exemptions apply – which would hinder its ability to timely process requests and produce non-exempt, responsive documents to waiting requesters.’”  “And, finally, FERC’s definition surpassed AILA’s minimum bar.”  “Though some of the responsive records may have been a single sentence, that should come as no surprise given the way most people text.”  “When adjusted to the text-message medium, AILA would not permit agencies to define single words or clauses as a record.”  “And FERC did not do that.”  “In sum, though [plaintiff] might have drafter’s remorse about its FOIA request, the agency’s definition of a record was reasonable.”
   
• Litigation Considerations, Adequacy of Search & Vaughn Index/Declarations:  The court relates that “[plaintiff] raises a single issue with the agency’s search process.”  “It claims the search was inadequate because FERC’s declarations do not specify which ‘staff oversaw the searches of the telephonic devices’ or state ‘that there was any supervision of the search.’”  The court finds that “[plaintiff’s] wish is not the agency’s command.”  “‘An agency may show its search was reasonable . . . through an affidavit by a responsible agency official, so long as the declaration is reasonably detailed and not controverted by contrary evidence or evidence of bad faith.’”  “‘Accordingly, affidavits that include search methods, locations of specific files searched, descriptions of searches of all files likely to contain responsive documents, and names of agency personnel conducting the search are considered sufficient.’”  “The agency’s declarations meet this standard.”
   
• Exemption 5, Deliberative Process Privilege & Foreseeable Harm and Other Considerations:  The court relates that, “[f]irst, [plaintiff] claims FERC failed to substantiate its Exemption 5 withholdings by omitting the names of senders and recipients in certain withheld texts.”  “FERC since supplemented its Vaughn Index and released additional messages, thus mooting part of this challenge.”  “As a result, FERC has not omitted any names pursuant to Exemption 5.”  “Second, [plaintiff] takes issue with the absence of dates in some of FERC’s index entries.”  “[Plaintiff] claims that without dates, ‘it cannot be established that the parties to the communication [we]re [ ] agency employees at the time of the communication.’”  “Again, FERC has partially mooted this challenge by releasing many of the texts at issue . . . and by adding a date to the Vaughn entry for another.”  “That leaves [only certain documents] without a date.”  “The D.C. Circuit has instructed that ‘[d]ates are but one way to illustrate a chronology,’ and an agency may validly rely on ‘other ways to prove that the undated documents were indeed predecisional.’”  “FERC’s affidavits did the job.”  “[Defendant] explained that each of the dateless messages reflect ‘FERC’s internal deliberations about contemplated policy actions,’ and she described the contemplated action at issue in each message.”  “[Other documents] reflect deliberations about whether a former staff member violated FERC’s social media policies and how to respond, if so.”  “[One document] concerns how FERC should respond to a media inquiry.”  “And Documents 83–85 include first impressions and evaluations about the legal or strategic risks in a range of proposed policies and upcoming votes.”  “On the basis of these explanations, the Court finds FERC justified those Exemption 5 withholdings.”  “Third and relatedly, for many withheld or redacted messages, [plaintiff] claims the justifications in the Vaughn Index lack sufficient detail or fail to establish that the deliberative process privilege shields the information from release.”  “The Court will take this challenge up in three parts but finds it similarly unavailing.”  “One, FERC released some of the challenged messages in full and removed Exemption 5 redactions from the others.”  “Two, for another set of messages, FERC added detail to the justifications in the Supplemental Vaughn Index and . . . second declaration.”  [As to the third set of documents,] “‘“the overwhelming consensus” among courts in this District is that discussions about how to respond to the press are protected by’ the deliberative process privilege.”  Also, “While the privilege ‘does not protect material that merely sets forth official agency views [about] the interpretation and implementation of existing policies,’. . . the privilege can shield officials’ analysis or opinions about how existing legal rules inform future policy . . . .”  “The Court thus finds the deliberative process privilege applies to all of the agency’s claimed withholdings.”
  
  However, the court finds that “FERC has met [its foreseeable harm] burden for only one message . . . .”  “It describes ‘deliberations regarding drafting of a Notice of Proposed Rulemaking,’ and the agency explained that releasing the message would reveal ‘information on the timing and nature of prepublication deliberations’ and ‘information on when which staff raised which concerns about particular policy deliberations.’”  “Release would therefore ‘chill staff from sharing those concerns with one another in writing or otherwise.’”  “As the agency’s justification is tied to the content of the underlying message, the Court finds this demonstration of harm is ‘specifically focused on the information at issue.’”  “But the agency has not met it[s] burden for the rest of the texts withheld or redacted under Exemption 5.”  “For most of those, the Supplemental Vaughn Index repeats the same ‘boilerplate and generic assertion,’ . . . namely that ‘[r]elease of the text message would chill future discussions required for the decision-making progress,’ . . . .”  “[Defendant’s] declarations lack needed color.”  “[T]he Court will provide FERC a ‘second chance’ to justify its Exemption 5 withholdings and move anew for summary judgment.”
   
• Exemption 6:  The court relates that “[plaintiff] does not contest that the redactions qualify as ‘personnel’ files . . . .”  “[Plaintiff] objects to FERC’s withholding of three kinds of information:  (i) names, (ii) phone numbers, and (iii) email addresses.”  The court finds that “[t]he third challenge is easily disposed of as FERC did not withhold any email addresses.”  Additionally, “FERC mooted some of [plaintiff’s] objections by releasing records in full or releasing the names of Commission employees.”  “And while FERC has justified the withholding in one message . . . , the Court finds it failed to do so for others.”  Regarding “the name of a private individual mentioned in [one] message[, “[t]he individual was a prospective FERC employee but did not end up taking a position at the agency,”] the court finds that “the balance of private and public interests does not favor disclosure.”  Regarding a “‘lower-level media relations staff’ person ‘responsible for “back-end” and technical upkeep to FERC’s online resources and social media accounts[,]’” “[t]he Court finds this privacy interest insufficient to justify withholding.”  “The agency has not explained how this person's characteristics – his or her ‘back-end’ role managing FERC’s social media accounts – creates a particular risk of online harassment.”  “The Court similarly finds FERC has failed to justify withholding [one] name . . . .”  “In [the] message [containing the name], [a FERC] Commissioner . . . asked a FERC employee whether she should send the person’s resume to a White House team ‘for a potential detail’ ‘unrelated to [the person’s] duties at FERC or any FERC business.’”  “The named employee has since left the agency.”  “The agency has failed to identify any privacy interest at stake other than its general assertion that disclosure ‘could invite unwanted intrusions and result in an unwarranted invasion of personal privacy.’”  “Finally, FERC’s redaction of phone numbers.”  “Though the agency does not specify that the phone numbers are cellphone numbers, that goes without saying as all the phones were capable of sending and receiving text messages.”  “FERC redacted the cellphone numbers of (i) private individuals . . . and (ii) staff members.”  “As for the first, ‘it is well-accepted that the[ ] private contact information’ of non-governmental individuals ‘implicates a substantial privacy interest.’”  “[Plaintiff] has offered no countervailing public interest in disclosure so the Court will grant the agency’s motion as to these numbers.”  “As for the second, even though the agency does not clarify whether the phone numbers were personal or work numbers, . . . the distinction does not impact the Court’s decision.”  “The Court finds the employees have a substantial privacy interest in their cellphone numbers.”  “And because [plaintiff] had advanced no public interest in the disclosure of these numbers, the Court ‘need not linger over the balance.’”
  
  “The agency has also demonstrated that disclosure of the individual’s name in [one document] and disclosure of the phone numbers would harm the interests protected by Exemption 6.”  “[T]he agency redacted names and phone numbers because disclosure ‘could invite unwanted intrusions and result in an unwarranted invasion of personal privacy.’”
   
• ​​​​​​​Litigation Considerations, “Reasonably Segregable” Showing:  The court holds that “FERC fulfilled its obligation.”  Specifically, regarding plaintiff’s claim that “the agency must – and failed to – aver that it conducted a ‘line-by-line review of documents[,]’” the court finds that “there is no magic-words requirement for an agency’s affidavits on this score; courts have found a variety of formulations to suffice.”  “As [defendant] conducted an ‘extensive review of each individual text message,’ which by nature are likely to be short (perhaps even one-line) messages, her declaration is sufficient.”