United States District Court, D. Columbia.
As Amended November 5, 2014.
[Copyrighted Material Omitted]
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.
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.
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
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. 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 ...