STS ENERGY PARTNERS LP, Plaintiff, v. FEDERAL ENERGY REGULATORY COMMISSION, Defendant.
Civil Action No. 14-591 (JDB)
United States District Court, District of Columbia.
Signed March 4, 2015
328 F. Supp. 3d 323
D. In Camera Review
EPIC contends that the Court should review the withheld records in camera, because the government‘s secrecy limits EPIC‘s “ability to provide a check on the government‘s exemption claims.” Pl.‘s Cross-Mot at 25-26.
While district courts have “the explicit authority to conduct in camera reviews of agency files to determine the applicability of the claimed [FOIA] exemptions,” the cоurt should not resort to an in camera review as a matter of course. Quinon v. Fed. Bureau of Investigation, 86 F.3d 1222, 1227-28 (D.C.Cir.1996) (citing S. Conf. Rep. No. 1200, 93d Cong., 2d Sess. 9 (1974). However, an in camera review may be required “when agency affidavits in support of a claim of exemption are insufficiently detailed or there is evidence of bad faith on the part of the agency.” Armstrong v. Executive Office of the President, 97 F.3d 575, 578 (D.C.Cir. 1996) (citing Quinon v. Federal Bureau of Investigation, 86 F.3d 1222, 1228 (D.C.Cir. 1996)).
Here, EPIC brings no allegation that Defendants acted in bad faith. Moreover, as discussed above, the agencies’ public and ex parte declarations provide a sufficient basis to determine that Exemption 7(A) applies to the responsive documents. See Hayden, 608 F.2d at 1386 (declining to conduct in camera review where agency had not disрlayed bad faith and had provided sufficient declarations). Accordingly, the court, reminded that Congress intended that the courts give agency declarations “substantial weight” in light of their law enforcement expertise, declines to conduct an in camera review.
V. CONCLUSION
For the foregoing reasons, the court grants in part and denies in part Defendants’ motion for summary judgment, and grants in part and denies in part Plaintiff‘s motion for summary judgment. An Order consistent with this opinion is separately and contemporaneously issued 4th day of March, 2015.
Damon William Tаaffe, U.S. Attorney‘s Office, Washington, DC, for Defendant.
JOHN D. BATES, United States District Judge
The Freedom of Information Act generally obliges federal agencies to release all records (or portions of records) responsive to proper FOIA requests. But like most general rules, it comes with exceptions—or, more precisely, “exemptions.” If the federal agency can show that otherwise responsive information falls within one of nine exemptions from the usual FOIA requirements, the agency need not disclose the information. See
BACKGROUND
STS Energy “is a private investment partnership” that buys and sells electricity in the East Coast and Midwest energy markets, and FERC is the federal agency responsible for regulating those markets. Compl. [ECF No. 1] at 6. Hоping for insight into FERC‘s regulatory practices, STS Energy submitted two FOIA requests to the agency—one in 2013, and one in 2014. The first sought “certain records relating to the FERC Office of Enforcement‘s investigation of Oceanside Power LLC,” another energy trader. Id. at 1, 3-4. The second sought documents “relat[ing] to FERC‘s decision ... to issue an Order Denying Complaint in Black Oak Energy LLC, et al. v. PJM Interconnections LLC ... and the subsequent ... reversal [of that decision] in an Order Accepting Compliance Filing.” Id. at 1-2.
FERC at first answered STS Energy‘s two requests with blanket denials. It refused to release any portion of the 41 documents the agency uncovered that responded to the Oceanside request, and it likewise withheld every line of the 294 documents related to the Commission‘s Black Oak decisions. Id. at 7, 9. But FERC has recently softened its stance and has released several documents to STS Energy. See, e.g., Gov‘t‘s Mot. at 7 (noting that FERC produced some documents because they “ha[d] been made publicly available or did not contain [exempt] information“); id. at 12 (noting release of other documents for similar reasons). STS Energy has also done its part to narrow the scope of this dispute. In its cross-motion for summary judgment, the firm now concedes that it seeks only 142 documents from FERC. Pl.‘s Cross-Mot. at 3. The result of these compromises: 142 documents remain in dispute—16 concerning the Oceanside request, and 126 cоncerning the Black Oak request.2
The question for the Court is whether—as a matter of law—any of these 142 contested documents must be released (or may instead be withheld) in whole or in part. “FOIA cases typically and appropriately are decided on motions for summary judgment.” Defenders of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C.2009). And summary judgment is appropriate when the pleadings and evidence demonstrate “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
It is the agency‘s burden to prove that it has complied with its obligations under FOIA. See U.S. Dep‘t of Justice v. Tax Analysts, 492 U.S. 136, 142 n. 3 (1989). To determine whether an agency has carried its burden, the district court may rely on the agency‘s affidavits or dеclarations that describe “the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record [or] by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981). These affidavits or declarations are accorded “a presumption of good faith,” though they must be “relatively detailed and nonconclusory.” SafeCard Servs. v. SEC, 926 F.2d 1197, 1200 (D.C.Cir.1991) (internal quotation marks omitted). When weighing this and other evidence in the record, the Court will review de novo the agency‘s determination that information requested through FOIA is subject to one of that statutе‘s exemptions. See
DISCUSSION
Before wading into the merits of this case, the Court must clear a little underbrush. STS Energy not only opposes the government‘s motion for summary judgment, it has also moved to strike that motion. See Pl.‘s Cross-Mot. at 5. Its rationale: the government filed its summary-judgment motion one day after the Court‘s deadline for such motions, which means the motion was not properly before the Court—at least, not without a separate government motion asking the Court to extend its due date. See id. at 10 (citing Smith v. Dist. of Columbia, 430 F.3d 450, 457 (D.C.Cir.2005)). But that rationale has been overcome by events. The government moved for an extension of time to file its summary-judgment motion nunc pro tunc, and this Court granted that motion. See Sept. 26, 2014 Minute Order. And when STS Energy asked for reconsideration of that decision, this Court denied the company‘s motion, finding that “[t]he four factors for excusable neglect weigh in favor of permitting the [government‘s] single-day extension.” Sept. 29, 2014 Minute Order (citing In re Vitamins Antitrust Class Actions, 327 F.3d 1207, 1209 (D.C.Cir.2003)). The Court will therefore deny as moot STS Energy‘s latest crack at a motion to strike. On to the merits, then.
I. OCEANSIDE FOIA REQUEST
FERC and STS Energy remain at odds over 16 documents uncovered as part of the agency‘s search for Oceanside-related information.3 These documents (num-
A. Exemption 4
Exemption 4 protects material that is “commercial or financial information obtained from a person and [that is] privileged or confidential.”
A review of the record in this case suggests that Exemption 4 covers at least some of the information contained in these 16 documents. In its Vaughn index, FERC explains that the documents “contain[] confidential information” and that “[r]elease of this information could cause substantial harm to the competitive position of Oceanside.” See, e.g., Oceanside Index at 1. And the agency has supplemented this (bare-bones) explаnation with a declaration that offers considerably more detail. The declaration explains that Oceanside 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.” Att. 2 to Gov‘t‘s Mot. [ECF No. 15-2] (“Tao Decl.“) at 10. Moreover, the declaration makes clear that each of the documents contains “sensitive,” “non-public information about Oceanside‘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 Oceanside “substantial harm,” if released. Id. at 10-11. This is precisely the kind of information that other courts have found to be protected under Exemption 4‘s commercial-information privilege, see, e.g., Nat‘l Parks & Conservation Ass‘n v. Kleppe, 547 F.2d 673, 684 (D.C.Cir.1976), and this Court likewise concludes that the exemption covers some portion of each disputed document here.
But that conclusion is only half of FERC‘s summary-judgment battle. Beyond showing that Exemption 4 applies to these contested documents, FERC must also prove that there is no “reasonably segregable” material in the withheld documents that can be released to the public.
Of course, neither party is fully satisfied with this outcome. STS Energy first argues that Exemption 4 should not apply to this information at all (let alone in part), because the commercial information FERC seeks to withhold relates to Oceanside‘s “illegal” market behaviоr. See Pl.‘s Cross-Mot. at 10-12. But even accepting STS Energy‘s premise as true—that the pricing, staffing, and trading information produced by Oceanside in response to FERC‘s investigation reflects illegal Oceanside activities—it is well established that Exemption 4 applies to all “commercial” information, legal or not. See Pub. Citizen v. U.S. Dep‘t of Health & Human Servs., 975 F.Supp.2d 81, 101 (D.D.C.2013) (“[T]he term ‘commercial’ is not limited only to lawful activities but also extends more broadly to any type of activity bearing on commerce.“); see also Watkins v. U.S. Bureau of Customs & Border Prot., 643 F.3d 1189, 1195 (9th Cir.2011) (rejecting argument that “information contained in a Notice of Seizure is noncommercial just because it‘s likely ... that the merchandise seized is counterfeit“). This argument therefore gets STS Energy nоwhere.
For its part, FERC contends that it has carried its segregable-information burden, arguing that any “redaction or withholding [of these 16 documents] would ... render the documents worthless.” Gov‘t‘s Reply at 14. Of course, an agency need not release segregable information that amounts to “an essentially meaningless set of words and phrases.” Mead Data Cent., 566 F.2d at 261; see also id. at 261 n. 55 (“[A] court may decline to order an agency to commit significant time and resources to the separation of disjointed words, phrases, or even sentences which taken separately or together have minimal or no information content.“). But that is not the case here—at least, not as far as the record shows. The rеcord evidence contains exactly one entry regarding the segregability of these 16 documents: a declaration that baldly concludes that “[t]here is no additional segregable factual information that could be released without revealing protected information.” Tao Decl. at 11. FERC‘s explanation that any segregable information would be “worthless” or “meaningless” did not appear until the agency‘s reply brief in this case. But that is far too late. Legal arguments, after all, are not evidence. See Fromm v. MVM, Inc., 371 Fed.Appx. 263, 270 (3rd Cir.2010).
B. Exemption 7(A)
FERC‘s case for across-the-board Exemption 7(A) coverage is similarly flawed. This exemption protects from disclosure “records оr information compiled
Again, the record evidence makes plain that Exemption 7(A) covers much of the information contained in the 16 disputed Oceanside documents. For one thing, a FERC investigation is still pending. As the agency‘s declaration explains, “the material at issue contains information relating to the ongoing FERC investigation ... in Docket No. IN10-5-000.” Tao Decl. at 7 (emphasis added). And the declaration continues: “The Commission is currently investigating patterns of market manipulation associated with ... transactions in [a certain portion of the energy] market.” Id. (emphasis added). For another thing, FERC has adequately explained how disclosure of the requested information would jeopardize this investigation. “If released,” the agency explains, “th[e] information could permit the subjects of the ongoing investigation to evade scrutiny,” Tao Decl. at 7, 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,” id. at 8. These sworn-to explanations—relatively detailed as they are—come with a presumption of good faith, and STS Energy has presented no contrary evidence to undercut that presumption. See SafeCard Servs., 926 F.2d at 1200.
Exemption 7(A) therefore applies—at least, to some extent. Remember FOIA‘s additional mandate: that agencies release “[a]ny reasonably segregable portion of [an otherwise withheld] record.”
STS Energy would prefer that the Court go further, but neither of its arguments is persuasive. First, the company contends that 7(A) does not apply here, because FERC has ended its litigation against Oceanside. The company therefore believes that FERC has no pending or prospective investigation on which to hang its Exemption 7 hat. See Pl.‘s Cross-Mot. at 8-9. But this cuts the exemption far too thin. Exemption 7(A), by its terms, applies whenever production of law-enforcement information “could reasonably be expected to interfere with enforcement proceedings“—full stop.
STS Energy persists that the agency‘s Exemption 7(A) claim should fail, because FERC is not really a law-enforcement agency and thus should not get the benefit of the doubt regarding its investigatory interests. See, e.g., Pl.‘s Reply at 12 (citing Birch v. U.S. Postal Serv., 803 F.2d 1206 (D.C.Cir.1986)). But this argument falls flat for two reasons. One: even Birch acknowledges that Executive Branch agencies with “mixed” law-enforcement and other functions can take advantage of Exemption 7. 803 F.2d at 1210. And FERC certainly meets that description. See
II. BLACK OAK FOIA REQUEST
The fate of the 16 Oceanside documents is thereforе on hold. But what of the 126 remaining documents concerning FERC‘s Black Oak opinions? As with the Oceanside request, FERC has thus far refused to release any portion of these documents—not a word, line, paragraph, or page. This time, though, the agency claims that Exemption 5 protects the entirety of these records from public view.5
A. Exemption 5
Exemption 5 allows an agency to withhold “inter-agency or intra-agency memorandums or letters which would not be available by law to a party ... in litigation with the agency.”
To start, 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.” Bristol-Meyers Co. v. Fed. Trade Comm‘n, 598 F.2d 18, 28 n. 20 (D.C.Cir.1978); see also Coastal States Gas, 617 F.2d at 868 (“[T]he agency has the burden of establishing what deliberative process is involved, and the role played by the documents in issue in the course of that process.“). In other words, to defeat STS Energy‘s FOIA claim, FERC must explain how the agency generally makеs its decisions. Are opinions and recommendations from junior staff “one step of an established ... process, which ... result[s] in a formal opinion“? Coastal States Gas, 617 F.2d at 868. Are those opinions and recommendations ever adopted wholesale by the agency without additional review? See Bristol-Meyers, 598 F.2d at 28. Do junior and senior staff have the authority to “investigate and recommend, [while] only the [Commission] c[an] decide“? Renegotiation Bd. v. Grumman Aircraft Eng‘g Corp., 421 U.S. 168, 185 (1975). FERC has thus far failed to provide answers to questions like these, and until it does, this Court cannot grant the agency‘s summary-judgment motion.6
Moreover, even if FERC had provided some general description of its deci-
And the Vaughn index is equally unhelpful regarding the “deliberative” nature of many disputed documents. Before deciding whether a document is deliberative within the meaning of Exemption 5, courts оften require agencies to provide such information as the “nature of the decisionmaking authority vested in the officer or person issuing the disputed document” or “the relative positions in the agency‘s chain of command occupied by the document‘s author and recipient.” Senate of Puerto Rico, 823 F.2d at 586 (internal quotation marks omitted). But FERC‘s proffer is insufficient in this regard. For many documents, the author and recipient remain mysterious. See, e.g., Black Oak Index at 20 (“Discussion involves staff opinions and commentary“). For others, an author or recipient is identified, but FERC has provided no information regarding that person‘s authority. See, e.g., id. at 3 (“email from Michael Goldenberg to Samuel Sopper (copying David Meade)“). Details of this sort can make a difference in Exemption 5 cases, see Access Reports v. Dep‘t of Justice, 926 F.2d 1192, 1195 (D.C.Cir.1991) (noting that opinions sent up the chain of command might be protected, while opinions sent down the chain of command might not be), and in the absence of such details, the Court cannot conclude that FERC deserves judgment as a matter of law.7
Nor does FERC‘s declaration change this conclusion. To be sure, declarations and a Vaughn index may work in tandem, with “the court validating the index because it tied each individual document to one or more exemptions, and the [agency‘s] declaration linked the substance of each exemption to the documents’ common elements.” Morley v. CIA, 508 F.3d 1108, 1123 (D.C.Cir.2007) (internal quota-
FERC disagrees, arguing that the various disputed documents “are categorically deliberative in nature.” Gov‘t‘s Reply at 6 (emphasis added). But there is no such thing. There are, of course, documents that usually are deliberative—“recommendations, draft documents, proposals, suggestions,” and the like. Coastal States Gas, 617 F.2d at 866. But none of these types of documents are “categorically” protected from disclosure. After all, “[a] document‘s context [that is, not its label or category] is the sine qua non of the court‘s assessment of whether or not the document is predecisional аnd deliberative; indeed, ... ‘the deliberative process privilege is ... dependent upon the individual document and the role it plays in the administrative process.‘” Conservation Force v. Jewell, 66 F.Supp.3d 46, 61, 2014 WL 4327949, at *9 (D.D.C.2014) (emphasis added) (quoting Coastal States Gas, 617 F.2d at 867). And here, FERC has not yet given the Court sufficient indicia of the deliberative context surrounding these documents to entitle the agency to summary judgment.
FERC persists that the “release of the withheld material would ‘chill future staff discussion or cause public confusion by disclosing analysis that ultimately did not form part of the final agency analysis released to the public.‘” Gov‘t‘s Reply at 8 (quoting Tao Decl. at 13). Perhaps. But the parties can cross that bridge when they come to it. Certainly, many of the disputed documents exhibit the hallmarks of Exemption 5 information. But the Court is not yet requiring FERC to produce any part of these 126 documents. It is, instead, requiring the agency to provide more—and more specific—information regarding its decision to withhold these documents under Exemption 5. Without this additional information, the Court is left to guess at the exemption‘s applicability, and guessing is not the stuff of summary judgment.
B. Segregability
Of course, even if FERC had provided a more detailed Vaughn index and declaration to justify its invocation of Exemption 5, a problem remains. For a third time, the segregability issue rears its head. As is (by now) familiar, it is the agency‘s burden to show that it has met all of its obligations under FOIA—including the obligation to release “[a]ny reаsonably
And second, it is not enough for FERC to say that “there is no ... factual information” in the withheld documents that can be publicly released. Tao Decl. at 15 (emphasis added). To be sure, courts often use the distinction between “fact” and “opinion” as a “rough guide to separate exempt from non-exempt material” under the deliberative-process privilege. Access Reports, 926 F.2d at 1195. But the distinction is an imperfect one. Indeed, some opinion information remains subject to release under FOIA. For example, a recommendation might not qualify for deliberative-process protection if it is later “adopted ... as the agency position on an issue or is used by the agеncy in its dealings with the public.” Coastal States Gas, 617 F.2d at 866. Likewise, an opinion communicated by a senior manager to a junior employee might fall outside Exemption 5, because it “is far more likely to manifest decisionmaking authority and to be the denouement of the decisionmaking rather than part of its give-and-take.” Access Reports, 926 F.2d at 1195. The upshot of all of this: 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.
CONCLUSION
The Court will therefore deny the various motions currently on the table: the parties’ cross-motions for summary judgment and STS Energy‘s motion to strike the government‘s late-filed motion. Moreover, the Court will require FERC to provide additional, more specific information to justify its withholding of the 142 disputed documents in support of a renewed summary-judgment motion. A separate Order has issued on this date.
Tamika EDMONDS, Plaintiff, v. ENGILITY CORPORATION, Defendant.
Case No. 1:13-cv-00893 (CRC)
United States District Court, District of Columbia.
Signed March 6, 2015