NISKANEN CENTER, APPELLANT v. FEDERAL ENERGY REGULATORY COMMISSION, APPELLEE
No. 20-5028
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 13, 2021 Decided December 17, 2021
Appeal from the United States District Court for the District of Columbia (No. 1:19-cv-00125)
Megan C. Gibson argued the cause for appellant. With her on the briefs were Ciara Wren Malone and David Bookbinder.
Peter C. Pfaffenroth, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief was R. Craig Lawrence, Assistant U.S. Attorney.
Before: ROGERS and TATEL, Circuit Judges, and RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge TATEL.
Concurring opinion by Senior Circuit Judge RANDOLPH.
I.
Before building a pipeline, a natural-gas company must obtain a certificate that public convenience and necessity require it.
With a certificate of public convenience and necessity in hand, a pipeline company wields authority to seize private property by eminent domain.
Niskanen Center is a nonprofit think tank that represents landowners affected by pipeline construction. In connection with its investigation into whether FERC was meeting its statutory notice obligations, Niskanen filed a FOIA request seeking landowner lists for the since-discontinued Atlantic Coast Pipeline project.
In response, FERC withheld the names and addresses of individual landowners under FOIA Exemption 6, which shields records if their disclosure “would constitute a clearly unwarranted invasion of personal privacy.”
Niskanen sued to compel disclosure, and the parties each moved for summary judgment. During a conference on the motions, the district court attempted to steer the parties to compromise. To that end, it asked Niskanen‘s counsel to explain what the organization intended to do with the full names and addresses of affected landowners and why partial disclosure—for example, of only property owner initials and street names—would be inadequate for that purpose. Niskanen responded that it wanted to compare entries on the list with public records of landowners along the pipeline route to assess whether the pipeline company had notified the right people. But its only explanation for why it needed full names and addresses for that task was the possibility that a current landowner might share initials with the previous owner. When pressed by the district court, Niskanen accepted that this scenario would be, in the court‘s words, “pretty rare.” Niskanen disclaimed any interest in contacting affected landowners. Hearing no reason Niskanen needed all it sought,
the court directed the parties to negotiate a more limited disclosure that would protect the landowners’ privacy.
Negotiations failed. The parties informed the court that FERC had offered to provide initials and street names for individual landowners, but Niskanen insisted on full street addresses. The court granted summary judgment to FERC on the condition that it provide initials and street names as it proposed. Niskanen Center v. FERC, 436 F. Supp. 3d 206 (D.D.C. 2020). Full disclosure of landowner names and addresses, the court found, would do little to advance the public interest. Based on Niskanen‘s statements at the summary judgment hearing, the court found that street names and initials would be more than enough to allow Niskanen to compare the landowner lists to public records. The court concluded: “The proposed limited disclosure here is a just outcome, for it protects the privacy interests of thousands of affected landowners—by withholding additional personal information—without sacrificing the public‘s interest in disclosure.” Id. at 214.
Unsatisfied, Niskanen appealed. “We review the district court‘s grant of summary judgment de novo.” Billington v. DOJ, 233 F.3d 581, 584 (D.C. Cir. 2000). Though the parties spar fiercely over FERC‘s track record of notifying affected landowners, that dispute is far afield. The issue presented for our review is narrow: whether the incremental public interest in disclosing names and addresses of property owners along a pipeline route rather than only their street names and initials outweighs the incremental burden on their privacy.
II.
FOIA seeks to “open agency action to the light of public scrutiny” by mandating disclosure of agency records unless subject to an enumerated statutory exemption. ACLU v. DOJ,
750 F.3d 927, 929 (D.C. Cir. 2014) (quoting Department of the Air Force v. Rose, 425 U.S. 352, 361 (1976)). “Official information that sheds light on an agency‘s performance of its statutory duties falls squarely within that statutory purpose. That purpose, however, is not fostered by disclosure of information about private citizens that is accumulated in various governmental files but that reveals little or nothing about an agency‘s own conduct.” DOJ v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 773 (1989).
FOIA request, but rather on the incremental value of the specific information being withheld.” Schrecker v. DOJ, 349 F.3d 657, 661 (D.C. Cir. 2003).
The threshold requirement of a substantial privacy interest “is not very demanding.” Multi Ag Media LLC v. Department of Agriculture, 515 F.3d 1224, 1230 (D.C. Cir. 2008). We have consistently found that the privacy interest in an individual‘s name and address surmounts this low bar. See, e.g., Judicial Watch, Inc. v. FDA, 449 F.3d 141, 153 (D.C. Cir. 2006) (names and addresses of individuals associated with abortion medication); National Association of Home Builders v. Norton, 309 F.3d 26, 35 (D.C. Cir. 2002) (parcel numbers where pygmy owls were spotted); Painting & Drywall Work Preservation Fund, Inc. v. Department of Housing & Urban Development, 936 F.2d 1300, 1303 (D.C. Cir. 1991) (names and addresses of construction contractors); Reed v. NLRB, 927 F.2d 1249, 1251 (D.C. Cir. 1991) (names and addresses of employees eligible to vote); SafeCard Services, Inc. v. SEC, 926 F.2d 1197, 1205 (D.C. Cir. 1991) (names and addresses of third parties mentioned in witness interviews); FLRA v. Department of Treasury, 884 F.2d 1446, 1452 (D.C. Cir. 1989) (names and addresses of agency employees); Horner, 879 F.2d at 878 (names and addresses of retired employees). The Supreme Court has said the same. See Department of Defense v. FLRA, 510 U.S. 487, 501 (1994) (“it is clear that [civil service employees] have some nontrivial privacy interest in nondisclosure” of their addresses). “In the context of an individual residence, the court has recognized that ‘the privacy interest of an individual in avoiding the unlimited disclosure of his or her name and address is significant.‘” Norton, 309 F.3d at 35 (quoting Horner, 879 F.2d at 875).
True, we have at times observed that “the disclosure of names and addresses is not inherently and always a significant threat to the privacy of those listed,” and so we must consider “the characteristic(s) revealed by virtue of being on the particular list, and the consequences likely to ensue.” Horner, 879 F.2d at 877. That said, we have found a significant privacy interest whenever the information sought was of a type that might invite unwanted intrusions, even absent evidence that such intrusions had occurred in the past. In National Association of Retired Federal Employees v. Horner, for example, we “assume[d]” that businesses would take the opportunity to market services to the retirees whose names and addresses were at issue. Id. at 878. In Department of Defense v. FLRA, the Supreme Court found a substantial privacy interest because “[m]any people simply do not want to be disturbed at home by work-related matters.” See FLRA, 510 U.S. at 500–01. Even the possibility of wayward birdwatchers has nudged us past this threshold question. See Norton, 309 F.3d at 34–35 (noting “weak” evidence of trespassing by birdwatchers but nonetheless “[v]iewing the asserted privacy interests as involving more than minimal invasions of individual privacy“). The risk of unwanted contact or solicitation here is similar. And the landowners’ privacy interests are more acute than in many Exemption 6 cases because they took no action to avail themselves of any government benefit but instead appear on FERC‘s lists by mere happenstance of geography.
Finding more than a minimal privacy interest, we turn to the public interest in disclosure, and in assessing this interest, we consider only the “incremental value” of the specific information withheld. Schrecker, 349 F.3d at 661.
The public obviously has a strong interest in whether FERC fulfills its statutory notice obligations. See Reporters
Committee, 489 U.S. at 773 (“Official information that sheds light on an agency‘s performance of its statutory duties falls squarely within [FOIA‘s] statutory purpose.” (internal quotation marks omitted)). But to determine whether it does so, the public has no need for the personal identifying information of affected landowners. Indeed, Niskanen concedes that the redacted lists allow it and other members of the public to ascertain a great deal about what FERC and certificate applicants are up to. For example, it notes that it has been able to identify eighty-four landowners on the lists for whom the pipeline company was unable to find an address and so could not have provided notice by mail. At the same time, despite the district court‘s repeated prodding, Niskanen offered the court no cogent reason it needed the landowners’ full names and addresses. The district court thus found that “initials and street names would be sufficient” to allow Niskanen to determine whether the pipeline company was notifying affected landowners. Niskanen, 436 F. Supp. 3d at 214. “The addition of the redacted identifying information would not shed any additional light on the Government‘s conduct of its obligation.” Department of State v. Ray, 502 U.S. 164, 178 (1991).
As in other cases where the requesting party “failed to express” how redacted identifying information would advance public understanding, we agree with the district court that the privacy interests here outweigh the public interest in disclosure. Carter v. Department of Commerce, 830 F.2d 388, 391-92 & n.13 (D.C. Cir. 1987). Niskanen has given us no basis for disturbing the district court‘s conclusion that street names and initials would give it all it needs to evaluate FERC‘s conduct.
Niskanen also complains that portions of the redacted lists FERC produced following the district court‘s order are
illegible. At oral argument, FERC agreed to cooperate with Niskanen to correct these defects. If FERC fails to do so or if Niskanen believes the redacted lists otherwise depart from the district court‘s order, it may seek appropriate relief from that court.
III.
Niskanen identifies a weighty public interest in understanding FERC‘s compliance
So ordered.
RANDOLPH, Senior Circuit Judge, concurring,
In June 2020 the Supreme Court decided a permit dispute in favor of the Atlantic Coast Pipeline, LLC. U.S. Forest Serv. v. Cowpasture River Pres. Ass‘n, 590 U.S. 604, 140 S. Ct. 1837 (2020). A few weeks later, the pipeline owners canceled their project.1
The owners explained that a “series of legal challenges to the project‘s federal and state permits has caused significant project cost increases and timing delays.” Press Release, Dominion Energy & Duke Energy Cancel the Atlantic Coast Pipeline, DUKE ENERGY (July 5, 2020). They added that their decision “reflects the increasing legal uncertainty that overhangs large-scale energy and industrial infrastructure development in the United States.”
The majority opinion acknowledges the pipeline‘s demise but then says nothing more about it. My view is that the pipeline‘s cancellation has a significant impact on the Freedom of Information Act issue in this case.
Proposed in 2014, the pipeline was to be 604 miles long, “extending from West Virginia to North Carolina.” Cowpasture, 590 U.S. at 608, 140 S. Ct. at 1841. In order to notify the many thousands of affected landowners along the route, Atlantic Coast Pipeline compiled a list of their names and addresses. The company delivered a copy to the Federal Energy Regulatory Commission during the early stages of the certification proceedings.
Exemption 6 of the Freedom of Information Act does not
require a federal agency to disclose an individual‘s name and address if doing so “would constitute a clearly unwarranted invasion of personal privacy.”
The potential “privacy” involved here may be described as the landowners’ “mental repose” and perhaps their “physical solitude.” See Hyman Gross,
natural-gas pipeline crosses their property . . . to avoid potential protests on their land.” Niskanen Ctr. v. FERC, 436 F. Supp. 3d 206, 214 (D.D.C. 2020). But this prospect is no longer a concern now that the pipeline owners have canceled the project.6
Even so, another privacy interest remains at stake. Many organizations were interested in the Atlantic Coast Pipeline.7 Local, regional and national organizations opposing the pipeline would naturally take at least some credit for its cancellation.8 In light of the pipeline owners’ explanation, they would have a
point.
Those organizations touting their “good work” would have every incentive to use the landowner lists to solicit donations, by mail, by telephone or in person. In the face of comparable potential uses, the Supreme Court determined that individuals “have some nontrivial privacy interest in nondisclosure” of their home addresses. U.S. Dep‘t of Def. v. FLRA, 510 U.S. 487, 501 (1994).9 The Court also held that the individuals’ privacy interest in their home addresses “does not dissolve simply because that information may be available to the public in some form,” id. at 500, as the landowners’ names and addresses certainly were.10
As to a countervailing public interest from organizations using the landowners’ list in this manner, there is none. Fundraising by private organizations is not a public interest under Exemption 6. It is not a public interest because this activity reveals nothing about FERC‘s performance of its responsibilities. See Bibles v. Oregon Nat. Desert Ass‘n, 519 U.S. 355, 355-56 (1997) (per curiam).
The only remaining plausible “public interest” is the one the
Niskanen Center has identified—comparing the pipeline‘s list with the public record of landowners who should have been notified of the impending pipeline project. On this subject I agree with the majority opinion‘s analysis.
For the reasons mentioned above and in the majority opinion, I agree that the judgment of the district court should be affirmed.