Wednesday, November 5, 2014
Energy & Env't Legal Inst. v. FERC, No. 14-0502, 2014 WL 5570619 (D.D.C. Nov. 5, 2014) (Jackson, J.)
Re: Request for records concerning current FERC Commissioner
Disposition: Granting defendant's motion for summary judgment
- Exemption 5, Deliberative Process Privilege: The court holds that "FERC has properly invoked Exemption 5." "The Court's in camera review has confirmed FERC's contention that the redacted portions of the Bay–Pederson emails are 'predecisional.'" The court explains that "the 'decision' that the . . . emails [at issue] precede relates to 'personnel and administrative steps that were being preliminarily considered after [the civil service appointment of the Commissioner] was no longer viable.'" "Furthermore, the redacted text is also 'deliberative,' which plaintiffs do not meaningfully contest in any event."
- Exemption 6: "[T]he Court will grant FERC's motion for summary judgment." The court notes that "the document in question is part of [the subject's] employment application for a position he did not receive." The court finds that "plaintiffs have failed to identify a public interest that outweighs [the subject's] clear privacy interest." "Plaintiffs have not offered any evidence that would cause a reasonable person to believe that [the subject's] statements to the Senate were untruthful, nor that any 'controversy' has occurred that would be illuminated by the release of the full . . . document." The court additionally finds that "plaintiffs' mere suspicion that the content of the [documents at issue] might overlap with and/or contradict statements [the subject] has made on the public record provides no basis for the Court to find a waiver here."
Updated February 4, 2015