Case Detail

FOIA Project Annotation: Judge Rosemary Collyer has ruled that the Federal Energy Regulatory Commission properly withheld records under Exemption 5 (deliberative process privilege) and Exemption 6 (invasion of privacy) in response to requests submitted by John Odland and Michael Mojica, two residents of Minisink, New York, who were opposed to a natural gas compressor station the agency approved for their neighborhood. Because the plaintiffs had not appealed the agency's withholdings under Exemption 4 (confidential business information) and Exemption 7(F) (harm to individual), Collyer found they had failed to exhaust administrative remedies as to those exemption claims. She noted that "administrative exhaustion of their Exemption 5 challenge does not save their claim here. Administrative exhaustion applies to issues and not to whole requests. Because FERC relied on Exemptions that were not administratively appealed by Plaintiffs, Plaintiffs' challenge to FERC's decision to withhold those records has not been exhausted. To be clear: even if the Court were to decide that Exemption 5 did not apply to [two disputed documents]. Plaintiffs would not be entitled to their release because FERC also withheld these records under Exemption 4 and 7(F)." Collyer upheld all the agency's Exemption 5 claims. The plaintiffs challenged records prepared in response to a congressional inquiry, claiming it did not constitute an agency "decision." Collyer noted that "the deliberative process privilege is not aimed at the protection of agency decisions; it protects the deliberative process from disclosure. Because FERC has shown that the withheld portions of these emails were pre-decisional and deliberative, Exemption 5 was properly invoked." What the plaintiffs appear to have been arguing inartfully was that Congress does not qualify under the inter- or intra-agency threshold of Exemption 5 and records shared with Congress are not privileged. The plaintiffs also objected to withholding records about the agency's response to its public inquiry. But Collyer pointed out that "the Circuit has held that an internal discussion regarding the implementation of a policy is exempt from disclosure under Exemption 5. [The agency] did not assert that these emails merely contain FERC policies. Instead, [the agency] explained that these emails include FERC staff discussion about how to handle the increased public attention. Such discussions were pre-decisional and deliberative, as they were part of the give and take among staff." The plaintiffs wanted a list of homeowners in the potentially affected areas. The agency withheld the list under Exemption 6. The plaintiffs argued that there was the public interest in ensuring that FERC had properly notified property owners outweighed any privacy interest. Collyer, however, rejected the claim, observing that "plaintiffs do not seek the landowner names and addresses in order to 'shed light' on whether FERC sent notice; instead, Plaintiffs seek to determine whether notice was received. Whether notice was received is irrelevant to FERC's conduct and thus is not a matter of public interest."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 5 - Privileges - Deliberative process privilege - Predecisional, Exemption 6 - Invasion of privacy, Litigation - Jurisdiction - Failure to Exhaust

Date Filed	Doc #	Docket Text
2013-02-04	1	COMPLAINT against FEDERAL ENERGY REGULATORY COMMISSION ( Filing fee $ 350 receipt number 0090-3207565) filed by JOHN ODLAND, MICHAEL MOJICA. (Attachments: # 1 Exhibit Odland Exhibits, # 2 Civil Cover Sheet Civil Cover Sheet, # 3 Summons Summons - FERC, # 4 Summons Summons - US Attorney Gen, # 5 Summons Summons - File Clerk)(Elefant, Carolyn) (Entered: 02/04/2013)
2013-02-04		Case Assigned to Judge Rosemary M. Collyer. (md, ) (Entered: 02/04/2013)
2013-02-04	2	ELECTRONIC SUMMONS Issued (3 )as to FEDERAL ENERGY REGULATORY COMMISSION, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons 2nd, # 2 Summons 3rd, # 3 Notice of Consent, # 4 Consent Form)(md, ) (Entered: 02/04/2013)
2013-02-20	3	MOTION to Intervene by MILLENNIUM PIPELINE COMPANY, L.L.C. (Attachments: # 1 Certificate of Service, # 2 PROPOSED CORPORATE DISCLOSURE STATEMENT, # 3 Text of Proposed Order)(rdj) (Entered: 02/20/2013)
2013-02-21		MINUTE ORDER granting 3 unopposed Motion to Intervene. Millenium Pipeline Co. LLC may intervene as an Intervenor Defendant. Signed by Judge Rosemary M. Collyer on 2/21/2013. (KD) (Entered: 02/21/2013)
2013-02-21	4	Corporate Disclosure Statement by MILLENNIUM PIPELINE COMPANY, L.L.C. identifying Corporate Parent NATIONAL GRID PLC, Corporate Parent NISOURCE INC., Corporate Parent DTE ENERGY COMPANY for MILLENNIUM PIPELINE COMPANY, L.L.C. (rdj) (Entered: 02/21/2013)
2013-03-08	5	Unopposed MOTION for Extension of Time to File Answer re 1 Complaint, by FEDERAL ENERGY REGULATORY COMMISSION (Graham-Oliver, Heather) (Entered: 03/08/2013)
2013-03-08		MINUTE ORDER granting 5 Defendant's consent Motion for Extension of Time to Answer. Defendant shall file an answer or other response to the complaint no later than March 22, 2013. Signed by Judge Rosemary M. Collyer on 3/8/2013. (KD) (Entered: 03/08/2013)
2013-03-08		Set/Reset Deadlines/Hearings: Answer to complaint due by 3/22/2013. (cdw) (Entered: 03/11/2013)
2013-03-22	6	ANSWER to Complaint by FEDERAL ENERGY REGULATORY COMMISSION.(Graham-Oliver, Heather) (Entered: 03/22/2013)
2013-04-03		MINUTE ORDER requiring the parties to file a joint proposed dispositive motion briefing schedule no later than April 18, 2013. Signed by Judge Rosemary M. Collyer on 4/3/2013. (KD) (Entered: 04/03/2013)
2013-04-18	7	Consent MOTION for Briefing Schedule by MICHAEL MOJICA, JOHN ODLAND (Elefant, Carolyn) (Entered: 04/18/2013)
2013-04-18		MINUTE ORDER granting in part and denying in part 7 the parties' joint Motion for Briefing Schedule. The briefing schedule is as follows: FERC shall file a Vaughn Index by May 13, 2013; FERC shall file a motion for summary judgment by May 17, 2013; Plaintiffs shall file an opposition by June 26, 2013; FERC and Intervenor shall each file a reply, without repeating prior arguments, by July 8, 2013; Plaintiffs shall file a single combined surreply, in response to FERC and Intervenor's briefs, by July 26, 2013. Signed by Judge Rosemary M. Collyer on 4/18/2013. (KD) (Entered: 04/18/2013)
2013-04-19		Set/Reset Deadlines: FERC's Vaughn Index due by 5/13/2013; FERC motion for summary judgment due 5/17/2013; Response due 6/26/2013; FERC and Intervenor's replies due 7/8/2013; Plaintiffs' combined surreply in response to FERC and Intervenor briefs due 7/26/2013. (zmm, ) (Entered: 04/19/2013)
2013-04-25	8	SUPPLEMENTAL MEMORANDUM to filed by MICHAEL MOJICA, JOHN ODLAND. (Elefant, Carolyn) (Entered: 04/25/2013)
2013-04-30		MINUTE ORDER denying 8 Plaintiffs' request for additional briefing. The parties proposed a schedule and a number of briefs that were unnecessary and the schedule was intentionally altered by the Court as set forth in its scheduling order. The parties may seek all necessary relief, including summary judgment, within the confines of the briefs they are permitted to file. Plaintiffs' counsel is further advised that attorneys must communicate with the Court via filed motions and not by letter. Signed by Judge Rosemary M. Collyer on 4/30/3013. (KD) (Entered: 04/30/2013)
2013-05-13	9	NOTICE OF FILING VAUGHN INDICES by FEDERAL ENERGY REGULATORY COMMISSION (Attachments: # 1 Exhibit Vaughn Index - FY 12-66, # 2 Exhibit Vaughn Index FY 12-60, # 3 Exhibit Vaughn Index FY 12-33)(Graham-Oliver, Heather) (Entered: 05/13/2013)
2013-05-17	10	Consent MOTION for Extension of Time to File Motion For Summary Judgment by FEDERAL ENERGY REGULATORY COMMISSION (Graham-Oliver, Heather) (Entered: 05/17/2013)
2013-05-17		MINUTE ORDER granting consent 10 Motion for Extension of Time. Federal Energy Regulatory Comm'n shall file a motion for summary judgment by May 22, 2013. Signed by Judge Rosemary M. Collyer on 5/17/2012. (KD) (Entered: 05/17/2013)
2013-05-17		Set/Reset Deadlines/Hearings: Defendant's Summary Judgment motion due by 5/22/2013. (cdw) (Entered: 05/20/2013)
2013-05-22	11	MOTION for Summary Judgment by FEDERAL ENERGY REGULATORY COMMISSION (Graham-Oliver, Heather) (Entered: 05/22/2013)
2013-05-22	12	NOTICE OF FILING DECLARATION AND EXHIBITS ATTACHED THERETO by FEDERAL ENERGY REGULATORY COMMISSION re 11 MOTION for Summary Judgment (Attachments: # 1 Affidavit Declaration of Leonard M. Tao, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit, # 20 Exhibit, # 21 Exhibit, # 22 Exhibit, # 23 Exhibit, # 24 Exhibit, # 25 Exhibit, # 26 Exhibit, # 27 Exhibit, # 28 Exhibit, # 29 Exhibit, # 30 Exhibit, # 31 Exhibit)(Graham-Oliver, Heather) (Entered: 05/22/2013)
2013-05-23	13	NOTICE OF WITHDRAWAL OF VAUGHN INDEX MOJICA FY-12-60 by FEDERAL ENERGY REGULATORY COMMISSION re 9 Notice (Other) (Graham-Oliver, Heather) (Entered: 05/23/2013)
2013-06-26	14	MOTION for Summary Judgment by MICHAEL MOJICA, JOHN ODLAND (Attachments: # 1 Memorandum in Support Plaintiffs' Memorandum in Support of Motion for Summary Judgement, # 2 Appendix Appendix to Plaintiffs' Motion for Summary Judgment)(Elefant, Carolyn) (Entered: 06/26/2013)
2013-06-26	15	Memorandum in opposition to re 11 MOTION for Summary Judgment filed by MICHAEL MOJICA, JOHN ODLAND. (See docket entry 14 to view document)(rdj) (Entered: 07/01/2013)
2013-06-27		NOTICE OF ERROR re 14 Motion for Summary Judgment; emailed to carolyn.elefant@gmail.com, cc'd 6 associated attorneys -- The PDF file you docketed contained errors: 1. Two-part docket entry, 2. Counsel is reminded to docket the opposition as a separate entry. (zrdj, ) (Entered: 06/27/2013)
2013-07-03	16	MOTION for Extension of Time to File Response/Reply as to 11 MOTION for Summary Judgment by FEDERAL ENERGY REGULATORY COMMISSION (Graham-Oliver, Heather) (Entered: 07/03/2013)
2013-07-08		MINUTE ORDER granting 16 Defendant's Motion for Extension of Time to File Combined Reply to 15 Plaintiff's Opposition to Defendant's MOTION for Summary Judgment and Opposition to 14 Plaintiff's Cross-MOTION for Summary Judgment. Defendant's Combined Reply and Opposition shall be due no later than July 24, 2013. Intervenor, Millennium Pipeline Company, LLC, shall file its response no later than July 24, 2013. Plaintiff's reply shall be due no later than August 5, 2013. Signed by Judge Rosemary M. Collyer on July 8, 2013. (lcrmc3) (Entered: 07/08/2013)
2013-07-24	17	Unopposed MOTION for Extension of Time to File Response/Reply as to 11 MOTION for Summary Judgment by FEDERAL ENERGY REGULATORY COMMISSION (Graham-Oliver, Heather) (Entered: 07/24/2013)
2013-07-25		MINUTE ORDER granting 17 consent motion to extend. FERC shall file a combined reply in support of 11 its motion for summary judgment and opposition to 14 Plaintiffs' cross motion for summary judgment by August 7, 2013. Plaintiffs shall file a combined reply in support of 14 and surreply in opposition to 11 by August 19, 2013. Signed by Judge Rosemary M. Collyer on 7/25/2013. (KD) (Entered: 07/25/2013)
2013-07-25		MINUTE ORDER requiring that Intervenor's response be filed by August 7, 2013. Signed by Judge Rosemary M. Collyer on 7/25/2013. (KD) (Entered: 07/25/2013)
2013-07-25		Set/Reset Deadlines/Hearings: Reply to 11 Motion for Summary Judgment due by 8/7/2013. Response 14 to Cross Motion due by 8/7/2013. Reply to 14 Cross Motion due by 8/19/2013. Surreply to 11 due by 8/19/2013. (cdw) (Entered: 07/25/2013)
2013-08-07	18	MOTION for Extension of Time to File Response/Reply as to 11 MOTION for Summary Judgment , 14 MOTION for Summary Judgment by FEDERAL ENERGY REGULATORY COMMISSION (Attachments: # 1 Text of Proposed Order Proposed Order)(Graham-Oliver, Heather) (Entered: 08/07/2013)
2013-08-07		MINUTE ORDER granting as unopposed 18 Motion for Extension of Time to File Response. Defendant shall file its omnibus reply in support of 11 its motion for summary judgment and opposition to 14 plaintiff's motion for summary judgment no later than August 20, 2013. Intervenor shall file its response regarding the cross-motions no later than August 20, 2013. Plaintiff shall file her reply in support of 14 her motion for summary judgment no later than September 4, 2013. Defendant, which has thrice moved for extensions, is advised that no further extensions will be granted. Signed by Judge Rosemary M. Collyer on 8/7/2013.(lcrmc2) (Entered: 08/07/2013)
2013-08-07		Set/Reset Deadlines/Hearings: Defendant's Reply to Motion for Summary Judgment due by 8/20/2013. Defendant's Response to Cross Motion due by 8/20/2013. Plaintiff's Reply to Cross Motion due by 9/4/2013. Intervenor's Response to Cross Motion due by 8/20/2013. (cdw) (Entered: 08/08/2013)
2013-08-20	19	REPLY to opposition to motion re 11 MOTION for Summary Judgment filed by MILLENNIUM PIPELINE COMPANY, L.L.C.. (Attachments: # 1 Affidavit Ransom Affidavit, # 2 Affidavit Manning Affidavit, # 3 Certificate of Service Certificate of Service)(Koury, Joseph) (Entered: 08/20/2013)
2013-08-20	20	RESPONSE re 14 MOTION for Summary Judgment filed by MILLENNIUM PIPELINE COMPANY, L.L.C.. (Attachments: # 1 Affidavit Ransom Affidavit, # 2 Affidavit Manning Affidavit, # 3 Certificate of Service Certificate of Service)(Koury, Joseph) (Entered: 08/20/2013)
2013-08-20	21	REPLY to opposition to motion re 11 MOTION for Summary Judgment filed by FEDERAL ENERGY REGULATORY COMMISSION. (Attachments: # 1 Affidavit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Graham-Oliver, Heather) (Entered: 08/20/2013)
2013-08-21	22	Memorandum in opposition to re 14 MOTION for Summary Judgment filed by FEDERAL ENERGY REGULATORY COMMISSION. (Graham-Oliver, Heather) (Entered: 08/21/2013)
2013-08-30	23	NOTICE OF FILING by FEDERAL ENERGY REGULATORY COMMISSION re 21 Reply to opposition to Motion, 22 Memorandum in Opposition (Attachments: # 1 Affidavit)(Graham-Oliver, Heather) (Entered: 08/30/2013)
2013-09-04	24	SURREPLY to filed by MICHAEL MOJICA, JOHN ODLAND. (Attachments: # 1 Affidavit)(Elefant, Carolyn) (Entered: 09/04/2013)
2013-09-05	25	ERRATA re 24 Surreply filed by MICHAEL MOJICA, JOHN ODLAND. (Attachments: # 1 Errata ERRATA Surreply, # 2 Affidavit Affidavit)(Elefant, Carolyn) Modified on 9/5/2013 to correct event (rdj). (Entered: 09/05/2013)
2013-09-19	26	MOTION to Amend/Correct 25 Surreply Errata by FEDERAL ENERGY REGULATORY COMMISSION (Graham-Oliver, Heather) (Entered: 09/19/2013)
2014-03-27	27	MEMORANDUM AND OPINION regarding cross motions for summary judgment. Signed by Judge Rosemary M. Collyer on 3/27/2014. (KD) (Entered: 03/27/2014)
2014-03-27	28	ORDER denying 26 FERC's Motion to Amend/Correct; granting 11 FERC's Motion for Summary Judgment; denying 14 Plaintiffs' Motion for Summary Judgment. Judgment is entered in favor of FERC. This case is closed. Signed by Judge Rosemary M. Collyer on 3/27/2014. (KD) (Entered: 03/27/2014)
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