United States District Court, D. Columbia.
For STS ENERGY PARTNERS LP, Plaintiff: 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: Damon William Taaffe, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.
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 5 U.S.C. § 552(b). This case involves the application of three such statutory carve-outs (Exemptions 4, 5, and 7) to 142 documents. Plaintiff STS Energy Partners wants access to these records--which concern Federal Energy Regulatory Commission (" FERC" ) activities surrounding two energy investment companies--and FERC has thus far refused to provide that access. Both parties have moved for summary judgment. But on this record and at this stage of the litigation, summary judgment -- for either side--is not yet appropriate. The Court will therefore deny the parties' cross-motions, and will require the government to supplement its withholding justifications before resubmitting any future summary-judgment motion.
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. Hoping 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 concerning the Black Oak request.
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." Fed.R.Civ.P. 56(a).
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, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989). To determine whether an agency has carried its burden, the district court may rely on the agency's affidavits or declarations 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, 211 U.S.App.D.C. 135 (D.C. Cir. 1981). These affidavits or declarations are accorded " a presumption of good faith," though they must be " relatively detailed and non-conclusory." SafeCard Servs. v. SEC, 926 F.2d 1197, 1200, 288 U.S.App.D.C. 324 (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 statute's exemptions. See 5 U.S.C. § 552(a)(4)(A)(vii). And " [a]t all times courts must bear in mind that FOIA mandates a 'strong presumption in favor of disclosure.'" Nat'l Ass'n of Home Builders v. Norton, 309 F.3d 26, 32, 353 U.S.App.D.C. 374 (D.C. Cir. 2002) (quoting Dep't of State v. Ray, 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991)).
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, 368 U.S.App.D.C. 361 (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, 356 U.S.App.D.C. 70 (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. These documents (numbered 2 through 5 and 8 through 19 in FERC's Vaughn index) constitute Oceanside's responses to data requests lodged during a 2010 FERC investigation into that company's energy-trading activities. See Att. 2 to Notice [ECF No. 16-2] (" Oceanside Index" ) at 1--10. FERC claims that Exemptions 4 and 7(A) protect the entirety of these documents from disclosure. But the record is far from clear on this point. Although the evidence suggests that Exemptions 4 and 7(A) likely ...