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Energy & Environment Legal Institute v. Federal Energy Regulatory Commission

United States District Court, D. Columbia.

November 4, 2014

ENERGY & ENVIRONMENT LEGAL INSTITUTE, et al., Plaintiffs,
v.
FEDERAL ENERGY REGULATORY COMMISSION, Defendant

As Amended November 5, 2014.

Page 242

[Copyrighted Material Omitted]

Page 243

For ENERGY & ENVIRONMENT LEGAL INSTITUTE, FREE MARKET ENVIRONMENTAL LAW CLINIC, Plaintiffs: Christopher Cochran Horner, LEAD ATTORNEY, LAW OFFICE OF CHRISTOPHER C. HORNER, Keswick, VA; David W. Schnare, LEAD ATTORNEY, FREE MARKET ENVIRONMENTAL LAW CLINIC, Burke, VA.

For FEDERAL ENERGY REGULATORY COMMISSION, Defendant: Peter C. Pfaffenroth, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.

Page 244

AMENDED MEMORANDUM OPINION

AMY BERMAN JACKSON, United States District Judge.

Plaintiffs the Energy & Environment Legal Institute and Free Market Environmental Law Clinic requested records under the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552 et seq., from defendant, the Federal Energy Regulatory Commission (" FERC" ) on October 2, 2013. Ex. A, Decl. of Leonard M. Tao [Dkt. # 17-5] at 1. Plaintiffs sought information relating to a current FERC Commissioner, Norman Bay. In particular, they requested records from 2012 and 2013, when Bay was a political appointee serving as the Director of FERC's Office of Enforcement, and he applied to serve in the same position thereafter as a career civil service appointee. Id.; Pls.' Mem. in Opp. to Def.'s Mot. for Summ. J. [Dkt. # 19] at 1 (" Pls.' Opp." ). Ultimately, Bay did not receive the civil service appointment to the role. Def.'s Mem. in Supp. of Mot. for Summ. J. [Dkt. # 17] at 2 (" Def.'s Mem." ); Pls.' Opp. at 1.[1]

The agency produced thirty records, at least some of which were partially redacted, in response to plaintiffs' FOIA request. Def.'s Statement of Facts [Dkt. # 17-2] ¶ 4. The only question presented in this case is whether FERC lawfully withheld portions of two of those documents. The first record, document 27 (" Bay-Pederson emails" ), consists of an email conversation between Bay and former FERC Chief of Staff James Pederson. See Ex. 1 to Def.'s Mot. for Summ. J. [Dkt. # 17-3]. FERC contends that its redactions of the Bay-Pederson emails are justified under FOIA Exemption 5, 5 U.S.C. § 552(b)(5). Def.'s

Page 245

Mem. at 2. The second record, entitled " Executive Core Qualifications (ECQs)," contains Bay's written responses to questions posed to him as part of the application process for the career Director of Enforcement position.[2] FERC contends that its redactions to the ECQs are justified under FOIA Exemption 6, 5 U.S.C. § 552(b)(6). Def.'s Mem. at 3.

Plaintiffs filed their complaint on March 25, 2014, Compl. [Dkt. # 1], and FERC moved for summary judgment on August 1, 2014. Def.'s Mot. for Summ. J. [Dkt. # 17] (" Def.'s Mot." ). On August 15, 2014, the Court directed FERC to deliver unredacted versions of the two documents at issue in this case for in camera review so that the Court could make a responsible de novo determination. Aug. 15, 2015 Minute Order; see also Ray v. Turner, 587 F.2d 1187, 1195, 190 U.S.App.D.C. 290 (D.C. Cir. 1978). FERC complied that same day. See Notice of In Camera Submission [Dkt. # 18]. Plaintiffs filed an opposition to FERC's motion for summary judgment on August 20, 2014, Pls.' Opp., and FERC replied on September 5, 2014. Reply in Supp. of Def.'s ...


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