Inst. for Energy Rsch. v. FERC, No. 22-3419, 2024 WL 3534700 (D.D.C. July 25, 2024) (Kollar-Kotelly, J.)

Inst. for Energy Rsch. v. FERC, No. 22-3419, 2024 WL 3534700 (D.D.C. July 25, 2024) (Kollar-Kotelly, J.)

Re:  Request for records concerning FERC’s processing of previous FOIA requests made by plaintiff for records related to communications between FERC and the White House

Disposition:  Granting defendant’s motion for summary judgment

• Exemption 5, “Inter-Agency or Intra-Agency” Threshold Requirement & Deliberative Process Privilege & Foreseeable Harm and Other Considerations:  “The Court holds that Defendant has demonstrated that its withholdings under Exemption 5 under the deliberative process privilege were appropriate.”  “The Court will not address Defendant’s invocation of the attorney work-product privilege under Exemption 5 because Defendant has sufficiently justified its Exemption 5 withholdings on deliberative process grounds.”  First, the court finds that “in this jurisdiction, communications with the White House Counsel’s Office may . . . qualify as intra- or inter-agency communications under Exemption 5.”  “Accordingly, FERC’s communications with the White House Counsel’s Office satisfy [the] threshold requirement.”
  
  Second, regarding the deliberative process privilege, the court finds that, “[a]s Defendant explains, the seven documents redacted pursuant to the deliberative process privilege consisted of emails between White House counsel and FERC staff attorneys discussing Plaintiff’s earlier FOIA requests.”  “The redacted portions included ‘opinions, suggestions, and/or recommendations made during the consultation process,’ including ‘about the processing of Plaintiff’s FOIA requests’ and ‘what type of information could be potentially released.’”  “FERC argues that these redacted portions were ‘pre-decisional’ because the discussions preceded FERC’s ‘final determination of how to respond to Plaintiff’s requests.’”  “‘Because a document is pre-decisional if it was “prepared in order to assist an agency decision maker in arriving at his decision,” rather than to support a decision already made,’ . . . the Court finds this requirement to be satisfied.”  The court also finds that “case law in this jurisdiction makes clear that communications that ‘serve[ ] to inform the agency’s ultimate response’ to a FOIA request are ‘easily characterized as both predecisional and deliberative’ within the meaning of Exemption 5.”  “The Court finds that discussions regarding potential FOIA redactions are sufficiently ‘deliberative’ for the purposes of Exemption 5’s deliberative process privilege.”
  
  Finally, the court relates that “[p]laintiff challenges whether this foreseeability requirement has been met, . . . but, as Defendant explains, . . . the chilling effect described by [defendant] and that the Court analyzed above fulfills this requirement.”
   
• Litigation Considerations, Vaughn Index/Declaration:  The court relates that “Plaintiff claims that ‘FERC’s short Vaughn descriptions and its accompanying index, bare of any detail, does not come close to meeting [the agency’s] burden.’”  “The Court finds that Plaintiff’s arguments have no merit.”  “First, Plaintiff takes issue with the fact that Defendant’s Vaughn Index lists only the name of one of the parties to the communication and identifies others just by title.”  “But Plaintiff cites to no binding authority to support the proposition that a Vaughn Index must contain the full names of all authors and addressees.”  “To the contrary, there is no requirement that a Vaughn Index contain the names of all senders and recipients of a withheld document.”  “Here, Defendant’s Vaughn Index indicates that the documents redacted pursuant to Exemption 5 contain emails between a named individual, . . . who was a White House Associate Counsel, and ‘FERC attorneys.’”   “This information sufficiently describes the ‘nature of the decisionmaking authority vested’ in each email participant so as to allow the Court to determine whether the redacted documents are predecisional and deliberative in nature.”  “Plaintiff next argues that Defendant’s materials are deficient as they ‘do[ ] not allege that the identified record(s) contain(s) any specific deliberation on an identifiable agency decision or that its release would have any chilling effect on agency deliberations.’”  “But in [its] declaration, [defendant] clearly states that the records contain ‘discussions between attorneys within FERC’s OGC and the White House Counsel’s Office about the processing of Plaintiff’s FOIA requests and the underlying responsive documents related thereto.’”  “She continues that the release of such information withheld pursuant to Exemption 5’s deliberative process privilege ‘would have an inhibitive effect upon the development of policy and administrative direction of an agency or the sharing of ideas amongst colleagues because it would chill the full and frank discussion between agency personnel regarding a decision,’ . . . and that the disclosure of this information ‘would create a disincentive in the future for FERC staff to consult or communicate with White House staff (or any executive agency staff),’ which would ‘diminish[ ]’ the agency’s ability to adequately respond to FOIA requests, ‘which ultimately harms the agency’s decision-making process’ and ‘hamper[s] the agency’s efficiency[]’ . . . .”  “Furthermore, [defendant] states that ‘the release of staffs’ preliminary assessments and internal discussions could mislead or cause public confusion because such information may not represent the agency’s final decision on the matter.’”  “The Court finds that this declaration adequately explains what discussions impacting agency decisions are included in the withheld records.”  Additionally, “the fact that Defendant relies on similar justifications for invoking Exemption 5 for numerous documents does not diminish the adequacy of these justifications, and Defendant’s justifications on its Vaughn Index are detailed enough to satisfy the standard.”
   
• Exemption 6:  “[B]ecause the privacy interests of FERC attorneys in avoiding any unwanted contact or harassment resulting from the release of their names and contact information outweighs any public interest in disclosure, the Court concludes that Defendant properly invoked Exemption 6 for the responsive documents at issue.”  The court relates that “‘[p]ortions of the redacted information . . . include direct telephone numbers of FERC and White House staff, email addresses or full domains, and the names of lower-level FERC employees.’”  “Regarding the privacy interest at stake, while federal employees do not have a per se expectation of privacy in their names and email addresses, . . . courts in this jurisdiction have found the type of personal information at issue here protectable under Exemption 6 . . . .”  “Here, as [defendant] explains, the release of employees’ names and contact information ‘would subject staff to further annoyance, threats, embarrassment, and harassment in the conduct of their official and private lives.’”  “On the other side of the ledger – the public interest – plaintiff has failed to ‘bear[ ] the burden of establishing a legitimate public interest supporting disclosure which is in line with the core purpose of FOIA, to contribute to greater general understanding of agency practice and procedure.’”  “[T]he Court finds the connection between the identity of federal employees and ‘the agency’s performance of its statutory duties’ too attenuated to create a public interest that outweighs the employees’ privacy interests.”  “Additionally, the redacted identities include those of ‘non-senior staff,’ . . . which further minimizes how much, if at all, the disclosure of that information would shed light on the government’s inner workings . . . .”  “The release of the names and contact information of low-level employees does not directly illuminate the government’s operations in a way that serves FOIA’s purpose.”
  
  “As was the case for Exemption 5, the Court must also consider whether Defendant has demonstrated foreseeable harm for Exemption 6.”  “[Defendant’s] explanation that employees would be subject to annoyance, threats, embarrassment . . . is sufficient to satisfy the foreseeability requirement.”
   
• Litigation Considerations, Evidentiary Showing, “Reasonably Segregable” Showing:  “Having reviewed all of the redacted documents released to Plaintiff, . . . as well as [defendant’s] declaration . . . , the Court is satisfied that no reasonably segregable information has been withheld.”  The court “affirms that ‘FERC performed a line-by-line and page-by-page review to identify information exempt from disclosure or for which a discretionary waive of exemption could be applied,’ and that ‘[a]ll information not exempted from disclosure pursuant to the FOIA exemptions . . . was correctly segregated and non-exempt portions were released to ensure that all non-exempt information was correctly segregated and released.’”