Inst. for Energy Rsch. v. FERC, No. 22-3420, 2024 WL 551651 (D.D.C. Feb. 12, 2024) (Howell, J.)

Inst. for Energy Rsch. v. FERC, No. 22-3420, 2024 WL 551651 (D.D.C. Feb. 12, 2024) (Howell, J.)

Re:  Requests for records concerning calendars kept by or for two FERC commissioners, as well as phone bills reflecting inbound and outbound calls made and received by four FERC officials

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

• Litigation Considerations, Adequacy of Search:  The court holds that “FERC’s search for responsive records is . . . adequate.”  The court relates that, “[a]s a threshold issue, plaintiff challenges the sufficiency of FERC’s search for responsive records, arguing that FERC’s declaration is inadequate because it relies impermissibly on ‘inadmissible hearsay’ and fails to identify ‘who at FERC allegedly conducted this search,’ or to ‘explain why it believes no additional calendars were responsive to Plaintiff’s request.’”  “Plaintiff notably does not contend that additional responsive records exist and takes issue with only the level of detail in FERC’s declarations.”  The court finds that “[t]hese complaints are unpersuasive and squarely foreclosed by binding precedent.”  “[D]eclarations in FOIA cases may include information relayed to a declarant by her subordinates without running afoul of Rule 56.”  “Here, [defendant’s declarant], who, in her role as Director of Strategic Operations and Special Projects in OEA, helps ‘oversee[ ] the processing of [FOIA] requests,’ attests that she is ‘familiar with the [p]laintiff’s FOIA requests’ and the information relayed in her declaration is ‘based on information provided to [her] by employees under [her] supervision, information provided by FERC staff in other offices, and information obtained by [her] in performance of [her] official duties.’”  “She thus has the requisite personal knowledge to attest to the adequacy of FERC’s search for responsive records.”  Additionally, the court finds that, “[o]n the merits, FERC’s search was adequate.”  “Although plaintiff is correct that agency declarations ‘must describe what records were searched, by whom,’ . . . plaintiff ‘ignores that the “by whom” requirement permits “an agency to rely on an affidavit of an agency employee responsible for supervising the search, even if that individual did not conduct the search herself.”’”  “The declaration finally outlines [defendant’s] efforts to ensure that all responsive calendar entries were produced to plaintiff.”

• Exemption 5, Deliberative Process Privilege & Foreseeable Harm and Other Considerations:  The court relates that “[o]nly three Exemption 5 redactions remain . . . .”  “FERC explains that the redacted information reveals ‘personnel-related policy proposals,’ . . . and requiring release of this information ‘would disclose deliberations on matters pending before the Commission or policy proposals which were not then and may not now be public[]’ . . . .”  “For the reasons below, FERC’s explanation of its invocation of Exemption 5 to redact three words or phrases in three meeting titles is sufficient.”  “On the merits, FERC has satisfied its burden of establishing that the deliberative process privilege applies.”  “First, the withheld material is pre-decisional because it reflects policy proposals that were pending before FERC.”  “These policy proposals ‘were not then and may not now be public,’ and ‘some of the aforesaid policy proposals were never adopted.’”  “Put differently, although the withheld information ‘do[es] not reflect the outcome of the agency decisions themselves or detail the actions taken or to be taken, the redactions reflect meetings and topics of discussion among FERC’s Commissioners with agency staff on pending matters before the agency[]’ . . . .”  “FERC . . . has identified a specific decision: the decision of which personnel-related policy proposals to consider.”  “According to FERC, the public is unaware that FERC was considering these policy proposals, and thus the information it seeks to withhold is which three policy proposals it considered and when.”  “Requiring FERC to identify a more specific decision, i.e., the specific policy proposal at issue, as plaintiff requests, would be the same as requiring FERC to remove its Exemption 5 redactions, given the generality of the redacted phrases.” 
  
  “Second, the withheld information – the titles of three meetings, which reflect the policy proposals discussed at these meetings – is deliberative.”  “A topic of discussion ‘can itself disclose sensitive issues, and . . . may include recommendations or express opinions.’”  “Here, FERC has not withheld full calendar entries.”  “Rather, all reasonably segregable information has been released, including the date and time of the meetings, as well as the other words in the title of the meeting that do not bear on specific policy proposals.”  “Plaintiff, in turn, argues that topics of a meeting are ‘peripheral to actual policy formation’ because they are not ‘[r]ecommendations from subordinates to superiors,’ but rather ‘records of activities engaged in by superiors.’”  “Plaintiff, however, offers a myopic view of the privilege, which ‘protect[s] the deliberative process itself, not merely documents containing deliberative material.’”  “Plaintiff further argues that even if the deliberative process privilege applied, FERC waived such privilege by ‘shar[ing] communications with private citizens or non-federal employees.’”  The court finds that “[t]his argument . . . is based on pure speculation . . . .” 
  
  “Third and finally, FERC has adequately shown that it reasonably foresees that disclosure of this information would harm an interest protected by Exemption 5:  the free and frank communication between agency employees.”  “As FERC explains, ‘the disclosure of calendar entries would create a disincentive in the future for FERC employees to maintain detailed and substantive calendar entries that are necessary to enable leaders at large complex organizations to prepare for and address the many discrete issues they confront each day.’”  “FERC’s explanation ‘identif[ies] specific harms to the relevant protected interests that it can reasonably foresee would actually ensue from disclosure of the withheld materials and connect[s] the harms in [a] meaningful way to the information withheld’ and is thus adequate.”
   
• Exemption 6; Litigation Considerations, Vaughn Index/Declaration:  First, the court holds that “FERC is entitled to summary judgment with respect to all its Exemption 6 withholdings [on the calendar records], except as to the name of [one] lobbyist whom FERC appears to attempt to categorize as a ‘private citizen[ ],’ which name must be released.”  “FERC originally redacted, pursuant to Exemption 6, five categories of information on responsive calendar records:  (1) personal events, such as gym trips and days children have off school; (2) travel information; (3) dial-in numbers or passcodes; (4) staff names; and (5) names of interviewees.”  “Plaintiff does not appear to challenge FERC’s withholding of personal and travel information, or dial-in numbers and passcodes.”  “Rather, plaintiff challenges only FERC’s withholding of ‘the names of government employees and private citizens’ and the names of interviewees for the OER Director position.”
  
  “At the outset, plaintiff contends that FERC’s Vaughn index is insufficiently detailed because it ‘lumps together all the many redactions to the calendars based on Exemption 6 into a laundry list of types of redacted material, rather than . . . describing each redaction.’”  “‘[T]here is,’ however, ‘“no fixed rule” establishing what [an agency] affidavit must look like,’ . . . and a categorical approach to withholding is permitted under FOIA ‘so long as [the agency’s] definitions of [the] relevant categories are sufficiently distinct to allow a court to determine whether specific claimed exemptions are properly applied[]’ . . . .”  “Here, FERC grouped its Exemption 6 redactions into five categories . . . offered specific ‘privacy interests [that] would be negatively affected by disclosure . . . weighed against the public interest in disclosure,’ and provided a table of which redactions on which days fall into each category.”  “These categories are ‘sufficiently distinct to allow a court to determine whether’ Exemption 6 is ‘properly applied,’ and, for the reasons explained below, ‘the range of circumstances included in [each] category characteristically supports an inference that the statutory requirements for [the] exemption are satisfied.’” 
  
  “Turning to the merits, the public release of names may ‘create a palpable threat to privacy.’”  “With respect to the names of private citizens, to the extent FERC has redacted the names of ‘personal trainers, family members, babysitters, and other non-FERC persons’ whose relationships with the Commissioners are entirely private in nature, . . . this information was properly withheld because revealing this entirely private information does not further FOIA’s purpose of allowing scrutiny of agency action . . . .”  “FERC, however, appears to have withheld the name of at least one lobbyist under the guise of redacting the name of a private citizen, making no attempt to justify this withholding.”  “As FERC appears to recognize, lobbyists differ significantly from ‘other non-FERC persons’ whose relationships with the Commissioners are entirely private in nature, . . . because lobbyists work to influence the actions, policies, and decisions of government officials.”  “Put differently, while lobbyists have some privacy interest in their identities, the countervailing public interest in the identities of the individuals who contacted the government to influence government action and policies is significant.”  “Given that FERC has provided no explanation for the redaction, FERC’s withholding of the name of a lobbyist is improper and this name must be released.”  “With respect to the names of unsuccessful candidates for the OER Director position, these candidates have a privacy interest in their identities.”  “[G]iven that these applicants have been rejected for the position, how their identities would reveal anything about ‘future FERC policymaking,’ current agency policies, or the workings of FERC is entirely unclear.”
  
  “As to the Call Log FOIA Request, FERC invoked Exemption 6 to justify redacting the Commissioners’ individual account numbers, as well as ‘[p]ersonal cellular phone numbers’ and ‘[FERC] staff's direct phone numbers.’”  “FERC later clarified that it did not intentionally withhold these categories of information or ‘the phone numbers of any specific person or persons,’ but rather withheld all phone numbers not identifiable through a Google search.”  “Plaintiff objects to FERC’s redactions only to the extent that ‘staff phone numbers’ were withheld, arguing that ‘[t]here is no privacy interest in such phone numbers.’”  “Alleging that the Commissioners and Director . . . ‘were assigned FERC mobile phones’ but often ‘used their personal phones instead,’ plaintiff contends that the countervailing public interest in knowing that ‘the official’s contact information was not in fact its FERC-assigned phone,’ is ‘great.’”  “It is unclear, however, why knowing whether a government official used her government or personal phone would advance the public interest, or why the redacted information – phone numbers associated with inbound and outbound calls made and received by the Commissioners and Director . . . – would shed light on this alleged public interest.”  Additionally, the court finds that “FERC has properly redacted the telephone numbers of unknown individuals.  “Disclosure of these phone numbers could ‘subject the individuals to annoyance, embarrassment, and harassment in the conduct of their official and private lives.’”  “This privacy interest outweighs any conceivable public interest.”
   
• Litigation Considerations, “Reasonably Segregable” Requirements:  The court relates that “FERC has averred that it ‘performed a line-by-line and page-by-page review to identify information exempt from disclosure’ and released ‘[a]ll information not exempt[ ] from disclosure’ pursuant to Exemptions 5 and 6, and that ‘no further non-exempt information . . . can be reasonably segregated and released without revealing exempt information.’”  “Coupled with a review of FERC’s productions, . . . FERC’s declarations and Vaughn Index are sufficient to establish the non-segregability of the disputed exempt records.”