Odland v. Fed. Energy Regulatory Comm'n, No. 13-141, 2014 WL 1244773 (D.D.C. Mar. 27, 2014) (Collyer, J.)

Odland v. Fed. Energy Regulatory Comm'n, No. 13-141, 2014 WL 1244773 (D.D.C. Mar. 27, 2014) (Collyer, J.)

Re: Request for records concerning FERC's review and approval of application for certificate of necessity and convenience for construction of compressor station by Millennium Pipeline Company

Disposition: Granting defendant's motion for summary judgment; denying plaintiffs cross-motion for summary judgment

• Litigation Considerations, Exhaustion of Administrative Remedies:  Regarding [one request], the court holds that, "[b]ecause FERC relied on Exemptions that were not administratively appealed by Plaintiffs, Plaintiffs' challenge to FERC's decision to withhold those records has not been exhausted."  The court states that "[a]dministrative exhaustion applies to issues and not to whole requests."  However, regarding other documents, the court finds that "[d]ue to FERC's lack of clarity in its first response to [this request] and the long delay before its final response, the failure to exhaust remedies with regard to [this request] is excused under recent D.C. Circuit precedent."  The court explains that "[w]hile it is undisputed that Plaintiffs' [sic] did not exhaust administrative remedies with regard to [this request] before filing this suit, administrative exhaustion is excused when an agency does not make its FOIA decision, or at least inform the requester of the scope of the documents that it will produce or withhold, within the relevant statutory time frame."
   
• Exemption 5, Deliberative Process Privilege:  The court directs that "judgment will be entered in favor of FERC regarding the Exemption 5 withholding of all intra-agency emails discussing motions, intervention requests, and other filings in the FERC proceeding public record."  The court notes that "[t]he documents withheld are deliberative, as they contain the internal dialogue among FERC personnel, and they are predecisional as they predate the Agency's July 2012 order regarding intervention."  Additional documents contain deliberations concerning a "FERC response to a congressional inquiry," as well as "FERC's deliberations regarding the appropriate response to public inquiries and public attendance at meetings while [a] underlying proceeding was pending."  The court also finds that "[defendant's] Declarations are entitled to a presumption of good faith" and that "[p]laintiffs' mere speculation that segregable factual data is contained in draft FERC orders is insufficient to rebut this presumption."
   
• Exemption 5, Attorney-Client Privilege:  The court finds that "[s]ome documents withheld via the deliberative process privilege are also entitled to protection by the attorney-client privilege."  The court explains that "[t]hese documents are intra-agency emails regarding confidential legal advice and they contain 'facts divulged by staff to attorneys in the course of seeking advice' or 'discussions among attorneys in preparation for legal advice to staff or for legal proceedings.'"
   
• Exemption 6:  The court holds that "FERC properly invoked Exemption 6 when it withheld the names and addresses from the landowner lists."  The court finds that "[b]ecause Plaintiffs have not shown that releasing the landowners' names and addresses would reveal anything about the workings of FERC, there is no public interest in disclosure."  The court explains that "[p]laintiffs contend that they need landowner names to determine whether 'FERC's notification procedures were effective.'"  "In other words, Plaintiffs do not seek the landowner names and addresses in order to 'shed light' on whether FERC sent notice; instead, Plaintiffs seek to determine whether notice was received."  The court determines that "[w]hether notice was received is irrelevant to FERC's conduct and thus is not a matter of public interest."  Therefore, the court  explains that it "'need not linger over the balance; something, even a modest privacy interest, outweighs nothing every time.'"
   
• Litigation Considerations, Vaughn Index / Declaration:  The court finds that the "information provided in the Vaughn Indices is sufficient to permit the Court to make a reasoned decision regarding the records withheld."  The court holds that "[p]laintiffs' complaint of vagueness is baseless."  The court explains that "[w]hile FERC must prove that information withheld fits within the claimed exemption, . . . the purpose of a Vaughn index is to provide sufficient information to permit a requester to challenge a withholding and to permit a court to decide whether the record in question was reasonably withheld."  The court further explains that "[t]he agency does not need to justify withholdings 'document-by-document' but instead may do so 'category-of-document by category-of-document,' so long as its definitions of the categories are sufficient to allow a court to determine whether the claimed exemptions are properly applied."
   
• Litigation Considerations, "Reasonable Segregable" Requirements:  The court "finds that [defendant's] submissions adequately specify 'which portions of the document[s] are disclosable and which are allegedly exempt.'"  Additionally, "[defendant's] Declarations are accorded a 'presumption of good faith' and Plaintiffs have not succeeded in rebutting that presumption."