United States District Court, District of Columbia
E. BOASBERG UNITED STATES DISTRICT JUDGE.
case involves a natural-gas pipeline slated to run hundreds
of miles across three Mid-Atlantic states. Plaintiff Niskanen
Center, which claims an interest in protecting private
property rights, submitted a Freedom of Information Act
request to the Federal Energy Regulatory Commission - the
agency charged with regulating these interstate pipelines -
seeking “any and all” information regarding the
identity of landowners affected by the pipeline. Plaintiff
maintains that this information will advance the public's
interest in knowing whether FERC, consistent with its
regulations, is ensuring that companies are notifying all
affected landowners. The agency turned over a number of
landowner lists but, citing privacy concerns, withheld the
names and addresses of private citizens. Dissatisfied with
these withholdings, Plaintiff filed suit, and the parties
have now moved for summary judgment.
a status hearing at which the Court attempted to broker a
compromise, Defendant offered to disclose the landowners'
initials and street names (but not precise addresses).
Finding that this latest proposal strikes the appropriate
balance between the competing public and private interests at
issue here, the Court will deny Plaintiff's Motion and
will grant Defendant's Motion as amended by this
backdrop for this case begins with the Natural Gas Act. Under
that statute, companies seeking to construct new interstate
gas transportation must obtain a certificate of public
convenience and necessity from FERC. See 15 U.S.C.
§ 717f(c)(1)(A). Notably, a certificate holder may
exercise eminent-domain authority to acquire property rights
to construct and operate its pipeline. Id. §
717f(h). To obtain such a certificate, a pipeline company
must first comply with a number of federal regulations.
See 18 C.F.R. § 157.6. As part of this
directive, companies are required to “make a good faith
effort to notify all affected landowners.” Id.
§ 157.6(d). They are obligated, moreover, to submit a
list of relevant landowners to the agency. Id. FERC,
in turn, issues a notice of the certificate application and
publishes it in the Federal Register. See, e.g.,
id. § 157.9.
October 2015, Atlantic Coast Pipeline secured a certificate
to construct and operate a natural-gas pipeline across West
Virginia, Virginia, and North Carolina. See ECF No.
12 (Pl. MSJ), Statement of Material Facts ¶ 2. The
pipeline, according to Defendant, affects over 3, 500
landowners. See ECF No. 18-1 (Def. Resp. to Pl.
SMF), ¶ 12. Seventy-seven of them have homes within 50
feet of the pipeline right-of-way. See Pl. MSJ, SMF
October 29, 2018, Niskanen submitted a FOIA request to FERC
seeking “any and all records and information”
relating to the private landowners that ACP had identified.
See ECF No. 11 (Def. MSJ), Exh. A (October 29
Letter). It also explicitly requested four landowner lists.
Id. (lists 20160629-5197, 20160412-5248,
20151112-5341, 20151016-5227). A few weeks later, on November
14, the agency released eight lists - three of the four lists
that Plaintiff had requested as well as five others.
See Def. MSJ, Exh. B (FERC Nov. 14 E-mails); Pl.
MSJ, SMF at 5. Although FERC disclosed the information of
commercial and government entities in full, it treated that
of private citizens differently. See Pl. MSJ at 7.
In particular, Defendant, citing privacy concerns and FOIA
Exemption 6, redacted the names and addresses of individuals.
See ECF No. 11-1 (Def. Statement of Material Facts)
response, Plaintiff filed an administrative appeal on
December 18, attacking the use of the exemption. See
Def. MSJ, Exh. C (Niskanen's Administrative Appeal).
Specifically, it downplayed the privacy concerns that the
agency had raised and maintained that full disclosure of the
mailing lists would “shed light” on whether ACP
was sending notice to all affected landowners. Id.
at 3-4. Plaintiff, moreover, pointed out that Defendant had
failed to release one of the lists that it had previously
requested. Id. at 2 n.1 (noting missing list
in Plaintiff's telling, did not provide an adequate
response to its appeal by FOIA's statutory deadline.
See 5 U.S.C. § 552(a)(6)(A) (setting forth
deadlines); ECF No. 1 (Complaint), ¶¶ 28-30. So, on
January 18, 2019, Niskanen brought this suit. It was not
until February 1 that FERC finally responded to
Plaintiff's appeal and upheld the decision to redact the
information of private citizens. See Def. MSJ, Exh.
D (Response to Pl. Appeal) at 1. The agency also acknowledged
that it had inadvertently neglected to disclose one of the
lists Plaintiff had requested. Id. Shortly after,
FERC produced a limited version of this list, again redacting
the names and addresses of individuals. Id. Each
party then filed a Motion for Summary Judgment regarding the
propriety of Exemption 6.
to engineer a compromise between the parties for a limited
disclosure of the property-owner lists, the Court convened a
status conference. See Minute Order of Dec. 3, 2019.
This tree, however, bore no fruit. After the hearing,
Niskanen proposed that the Agency produce: (1) the
“correct initials of each individual property owner and
corresponding street address”; and (2) “any and
all information related to ‘unavailable' affected
landowner[s].” ECF No. 22 (Joint Status Report of Dec.
17, 2019) at 1-2. FERC, for its part, agreed only “to
release the initials of landowners and street names (but not
individual addresses).” Id. With the parties
at an impasse, the Court is now primed to resolve this
judgment may be granted “if the movant shows 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). A genuine issue of material fact is one
that would change the outcome of the litigation. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986) (“Only disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment.”). In the event
of conflicting evidence on a material issue, the Court is to
construe the conflicting evidence in the light most favorable
to the non-moving party. See Sample v. Bureau of
Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006). Factual
assertions in the moving party's affidavits or
declarations may be accepted as true unless the opposing
party submits his own affidavits, declarations, or
documentary evidence to the contrary. See Neal v.
Kelly, 963 F.2d 453, 456-57 (D.C. Cir. 1992).
cases typically and appropriately are decided on motions for
summary judgment.” Defs. of Wildlife v. U.S. Border
Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009); see
Bigwood v. U.S. Agency for Int'l Dev., 484 F.Supp.2d
68, 73 (D.D.C. 2007). In FOIA cases, the agency bears the
ultimate burden of proof to demonstrate the adequacy of its
search and that it properly withheld any records. See
Defs. of Wildlife, 623 F.Supp.2d at 88, 91. The Court
may grant summary judgment based solely on information
provided in an agency's affidavits or declarations when
they “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 nor by evidence of agency bad
faith.” Military Audit Project v. Casey, 656
F.2d 724, 738 (D.C. Cir. 1981). Such affidavits or
declarations are “accorded a presumption of good faith,
which cannot be rebutted by ‘purely speculative claims
about the existence and discoverability of other
documents.'” SafeCard Servs., Inc. v. SEC,
926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground
Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir.