STS Energy Partners LP v. FERC, No. 14-591, 2015 WL 1000037 (D.D.C. Mar. 4, 2015) (Bates, J.)

STS Energy Partners LP v. FERC, No. 14-591, 2015 WL 1000037 (D.D.C. Mar. 4, 2015) (Bates, J.)

Re: Request for records concerning specific FERC regulatory proceedings

Disposition: Denying defendant's motion for summary judgment; denying plaintiff's motion for summary judgment

• Exemption 4:  The Court . . . den[ies] FERC's motion for summary judgment and require[s] the agency to either release any segregable portions of [certain] documents or submit more specific information that justifies its decision to withhold the entirety of these documents."  The court finds that "[a] review of the record in this case suggests that Exemption 4 covers at least some of the information."  The court "explains that [a third party] submitted its responses to FERC's data requests involuntarily, and that '[r]eleasing this information may therefore have a chilling effect on the Agency's ability to investigate future subjects.'"  "Moreover, the declaration makes clear that each of the documents contains 'sensitive,' 'non-public information about [the third party's] staffing, trading and power scheduling practices,' including its 'trade activities,' 'labor costs,' 'profit margins,' 'market share,' and 'volume of sales'—all of which could cause [the third party] 'substantial harm,' if released."  The court finds that "[t]his is precisely the kind of information that other courts have found to be protected under Exemption 4's commercial-information privilege."  However, the court finds that defendant's "Vaughn index is silent as to segregability, and the agency's declaration does not improve things."  "It says only that '[t]here is no additional segregable factual information that could be released without revealing protected information.'"  "Such 'conclusory statements' will not suffice."
   
• Exemption 7(A):  "The Court . . . denies the government's summary-judgment motion regarding Exemption 7(A), as well, which will allow FERC another chance to explain its no-segregable-information finding."  The court finds that "the record evidence makes plain that Exemption 7(A) covers much of the information" because "'the material at issue contains information relating to the ongoing FERC investigation'" and "'[i]f released,' . . . 'th[e] information could permit the subjects of the ongoing investigation to evade scrutiny,' . . . because the information could 'reveal the scope and direction of the ... investigation' and 'allow other subjects of the ... investigation undue insight into the Agency's confidential enforcement measures and strategies.'"  However, the court finds that "FERC has given the Court no basis on which to conclude that the agency has satisfied [its segregability] requirement."
   
• Exemption 5, Deliberative Process Privilege:  The court finds that "FERC has not provided the 'detailed information about [its] decision-making process [that] is essential ... to a fair determination of the agency's [deliberative-process] claims.'"  "Moreover, even if FERC had provided some general description of its decision-making process, it has still left the Court blind as to the role each individual document played within that process."  "And the Vaughn index is equally unhelpful regarding the 'deliberative' nature of many disputed documents."  The court explains that "[f]or many documents, the author and recipient remain mysterious" and "[f]or others, an author or recipient is identified, but FERC has provided no information regarding that person's authority."  Additionally, the court disagrees with defendant's argument "that the various disputed documents 'are categorically deliberative in nature'" instead finding that "there is no such thing."  The court explains that "[t]here are, of course, documents that usually are deliberative . . . [b]ut none of these types of documents are 'categorically' protected from disclosure."  The court also finds that defendant's statements concerning the segregability of this material "are wholly conclusory."  The court explains that "it is not enough for FERC to say that 'there is no ... factual information' in the withheld documents that can be publicly released."  "FERC cannot wash its hands of the FOIA segregability requirement by simply reviewing the 'factual information' in its withheld documents; it must, instead, examine the entirety of the documents—both fact and opinion—in its search for segregable material."