Inst. For Energy Research v. Fed. Energy Regulatory Comm'n

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INSTITUTE FOR ENERGY RESEARCH, Plaintiff, v. FEDERAL ENERGY REGULATORY COMMISSION, Defendant.

No. 22-cv-3414 (CRC)

United States District Court, District of Columbia

March 13, 2024

MEMORANDUM OPINION AND ORDER

CHRISTOPHER R. COOPER, UNITED STATES DISTRICT JUDGE

The Institute for Energy Research (“IER”) sued the Federal Energy Regulatory Commission (“FERC” or “the agency”) under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, for its handling of a request seeking text messages from three FERC employees. The agency found only 90 messages responsive to IER's request, and, as a result, moved for summary judgment soon after the case was filed. IER opposes that motion on two principal grounds: (i) the agency's search was inadequate, and (ii) the agency failed to justify its withholdings. Finding these claims for the most part lack merit, the Court will grant summary judgment as to the adequacy of the agency's search and partial summary judgment as to its withholdings.

I. Background

In August 2022, IER submitted a FOIA request to FERC seeking copies of text messages sent or received by three FERC officials-Commissioner Allison Clements, Sarah Venuto, and Elin Katz. Am. Compl. Ex. A (“FOIA Request”) at 1-2. Specifically, the request sought:

Copies of all text messages for [the three officials] whether person-to-person or part of a “chat” (regardless of how many or the identities of the parties on the chat) which: a) includes anywhere, one or more of the words [i] FERC, [ii] GHG (in any form, e.g., including also in GHGs), [iii] FOIA, and/or [iv] methane, regardless of the identity of any other parties to the correspondence; or b) were sent to or from [one of six named White House officials].

Id. (emphasis omitted). IER's request specified different time periods for the two halves of the request and defined “text message” to include “any message sent or received via Signal, WhatsApp, or Telegram.” Id. at 1 n.2, 2. The request also stated, “Please consider as responsive entire email ‘threads' containing any information responsive to this request, regardless whether any part of that thread falls outside the cited time parameters.” Id. at 4.

After receiving the request, FERC's Office of External Affairs (“OEA”), which oversees the agency's processing of FOIA requests, directed the three FERC officials to search their personal and official phones for responsive messages. First Declaration of Carolyn Templeton (“First Templeton Decl.”) ¶¶ 3, 15. With the assistance of the agency's Information Technology department, each individual submitted screenshots of text messages responsive to the first half of the request to OEA and the Office of General Counsel (“OGC”), which helps handle FERC's FOIA requests. Id. ¶ 9. None of officials identified messages responsive to the second half of IER's request, and FERC staff also confirmed that none of them either used alternative messaging applications (such as Signal or WhatsApp) or had responsive messages on those applications. Id. ¶ 15.

In September 2022, the agency issued a determination letter releasing 47 messages in full and withholding, either in part or in full, an additional 43. Id. ¶ 11; see also Supplemental Vaughn Index (“Supp. Vaughn Index”) [ECF No. 18-2]. Following an unsuccessful appeal of the agency's determination letter, id. ¶¶ 12-14, IER filed this suit, Compl. Soon after, the agency filed its motion for summary judgment. Mot. Summ. J. After briefing for that motion was completed, the agency also released an additional eight records in full and removed certain redactions from two others. Def.'s Not. of Supp. Rel.

II. Legal Standard

“Summary judgment is the typical and appropriate vehicle to resolve FOIA disputes.” Citizens for Resp. & Ethics in Wash. v. Dep't of Homeland Sec. (“CREW”), 525 F.Supp.3d 181, 187 (D.D.C. 2021). When reviewing a motion for summary judgment under FOIA, “the underlying facts and the inferences to be drawn from them are construed in the light most favorable to the FOIA requester,” and summary judgment is appropriate only after “the agency proves that it has fully discharged its FOIA obligations.” White Coat Waste Project v. Dep't of Veterans Affs., 404 F.Supp.3d 87, 95 (D.D.C. 2019) (cleaned up). “[T]he burden of proof is always on the agency to demonstrate that it has fully discharged its obligations under the FOIA.” McKinley v. FDIC, 756 F.Supp.2d 105, 111 (D.D.C. 2010).

III. Analysis

Congress enacted FOIA “to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976) (cleaned up). The statute thus requires an agency to perform an adequate search-i.e., a search that is “reasonably calculated to uncover all relevant documents.” Weisberg v. DOJ, 705 F.2d 1344, 1350-51 (D.C. Cir 1983). At the same time, “Congress sought to balance the public's interest in governmental transparency against legitimate governmental and private interests that could be harmed by release of certain types of information.” United Techs. Corp. v. DOD, 601 F.3d 557, 559 (D.C. Cir. 2010) (cleaned up). To that end, Congress enumerated nine statutory exemptions. Nat'l Ass'n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002). FOIA's “strong presumption in favor of disclosure” requires the statutory exemptions “to be narrowly construed.” Id. (cleaned up).

IER has challenged both the adequacy of FERC's search and the exemptions the agency applied. As to adequacy, summary judgment is appropriate where the agency demonstrates “beyond material doubt,” Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990) (cleaned up), “that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested,” Oglesby v. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). As to FOIA's exemptions, summary judgment is appropriate where the agency demonstrates that the claimed exemptions “apply to each record for which they are invoked.” CREW, 525 F.Supp.3d at 187. The agency can make this showing “through the submission of an index of documents, known as a Vaughn Index, sufficiently detailed affidavits or declarations, or both.” Agrama v. IRS, 282 F.Supp.3d 264, 273 (D.D.C. 2017) (cleaned up). When evaluating whether an agency is entitled to summary judgment, the agency's declarations are entitled to a presumption of good faith. See, e.g., CREW, 525 F.Supp.3d at 188.

The Court will address the adequacy of FERC's search and then turn to its exemptions.

A. Compliance with Local Rule 7(h)(1)

Before the Court gets there, however, it must resolve a threshold matter. IER contends the Court should deny FERC's motion because it fails to comply with Local Rule 7(h)(1)'s requirement that a summary judgment motion “be accompanied by a statement of material facts as to which . . . there is no genuine issue.” LCvR 7(h)(1). Because FERC's statement describes only the “submission” of IER's request, FERC's “acknowledgment of its receipt,” and the trajectory of IER's administrative appeal, IER insists that the statement fails to live up to Rule 7(h)(1)'s strictures. Opp'n at 40. The Court does not concur. FERC's statement cites to a declaration submitted by Carolyn Templeton, OEA's Director of Strategic Operations & Special Project, and the declaration describes the scope and methodology of the agency's search and the rationales for the claimed withholdings. See Vaughn Index [ECF 13-4]; First Templeton Decl. ¶ 1. “[C]itation to [Templeton's] affidavit is sufficient” to delineate the facts as to which the agency believes there is no genuine issue. Sabra v. Customs & Border Prot., 590 F.Supp.3d 351, 359 (D.D.C. 2022). And “it is clear to the Court which facts in [the] affidavit support” the agency's motion. Id.; see also Calderon v. Dep't of Agric., 236 F.Supp.3d 96, 108 (D.D.C. 2017) (“[Plaintiff] was not prejudiced by any non-compliance, as he had a full opportunity to submit his own Statement of Material Facts in support of his cross-motion, to submit supporting declarations, and to otherwise address any factual issues he found with [the agency's] submissions.”). Thus, the Court will not deny FERC's motion for alleged noncompliance with Local Rule 7(h)(1).

B. Adequacy of the Search

IER raises two issues with FERC's search. The first concerns FERC's definition of responsive records, and the second challenges the process by which the agency conducted the search.

1. Definition of a Record

IER claims FERC misconstrued its request by producing only “the specific texts that included the specified search terms.” Opp'n at 34 (quoting First Templeton Decl. ¶ 16). According to IER, FERC was required to produce “entire text message threads,” even if only one message in the thread hit on a responsive term. Id. Because agencies may not redact “non-responsive information from a record deemed responsive,” IER's challenge comes down to whether FERC properly defined a “record” for purposes of the request. Am. Immigr. Laws. Ass'n v. Exec. Off, for Immigr. Rev. (“AILA”), 830 F.3d 667, 670 (D.C. Cir. 2016). Put differently, if FERC was required to treat an entire text thread as responsive, it could not have redacted non-responsive messages within that thread.

Because FOIA, itself, does not define a record, agencies “in effect, define a ‘record' when they undertake the process of identifying records that are responsive to a request.” Id. at 678. Though they may define a “record” in a “range of possible ways,” the D.C. Circuit has erected some guideposts that inform that analysis. Id. First, the agency's definition must be “reasonable” id. at 679, and cannot flip “midway through litigation,” Judge...