Case Detail

FOIA Project Annotation: Judge Amy Berman Jackson ruled that the Federal Energy Regulatory Commission properly withheld two records under Exemption 5 (deliberative process privilege) and Exemption 6 (invasion of privacy). The Energy & Environment Legal Institute requested records concerning Norman Bay, a political appointee at FERC who served as the Director of FERC's Office of Enforcement. He later applied for the position as a civil service appointment but ultimately did not get the position. Only two records remained in disputeâ€"one an email exchange between Bay and FERC Chief of Staff James Pederson, which the agency withheld under Exemption 5, and a record entitled "Executive Core Qualifications," which contained responses submitted by Bay to questions posed to him as part of the application for a career appointment, which the agency had redacted under Exemption 6. The Energy & Environment Legal Institute argued the email exchange was not predecisional because it post-dated the agency's decision not to appoint Bay. After reviewing the two documents in camera, Jackson rejected the plaintiffs' claim, noting that "but as FERC clarifies in reply, the 'decision' that the Bay-Pederson emails precede relates to 'personnel and administrative steps that were being preliminarily considered after [the civil service appointment of Bay] was no longer viable.' The Court's in camera review has confirmed FERC's contention that the redacted portions of the Bay-Pederson emails are 'predecisional' for that reason." The plaintiffs argued that Bay's ECQ responses were not protected by Exemption 6 because their disclosure would not embarrass Bay since they were favorable. Jackson, however, observed that "Bay's ECQ responses are not ineligible for withholding under Exemption 6 merely because he cast himself in a positive light." She also rejected the plaintiffs' claim that Bay had waived his privacy rights to such information when he subsequently testified before the Senate Energy Committee. Jackson pointed out that "the waiver analysis for FOIA purposes turns upon official disclosures made by the agency, not the individual whose privacy the agency is seeking to protect." Indicating the plaintiffs had failed to show any official confirmation of the information, she observed that "plaintiffs' mere suspicion that the content of the ECQs might overlap with and/or contradict statements Bay has made on the public record provides no basis for the Court to find a waiver here." In a footnote, Jackson said she was puzzled by why FERC had redacted the ECQ as it did. She noted that "FERC could have withheld the entire document under Exemption 6 so plaintiffs have already received more information than they were entitled to under the law."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Predecisional, Exemption 6 - Invasion of privacy

Date Filed	Doc #	Docket Text
2014-03-25	1	COMPLAINT ENERGY & ENVIRONMENT LEGAL INSTITUTE et al. against Federal Energy Regulatory Ecommission ( Filing fee $ 400 receipt number 0090-3663992) filed by ENERGY & ENVIRONMENT LEGAL INSTITUTE. (Attachments: # 1 Civil Cover Sheet Civil cover sheet, # 2 Summons Summons USAG, # 3 Summons Summons civil process clerk USA DC, # 4 Summons Summons FERC)(Horner, Christopher) (Entered: 03/25/2014)
2014-03-25		Case Assigned to Judge Amy Berman Jackson. (kb) (Entered: 03/26/2014)
2014-03-26	2	ELECTRONIC SUMMONS (3) Issued as to FEDERAL ENERGY REGULATORY COMMISSION, U.S. Attorney and U.S. Attorney General. (Attachments: # 1 Consent Form, # 2 Notice of Consent)(kb) (Entered: 03/26/2014)
2014-04-01	3	Corporate Disclosure Statement by ENERGY & ENVIRONMENT LEGAL INSTITUTE. (Attachments: # 1 Declaration Corporate disclosure statement, # 2 Declaration Plaintiffs' Consent to Magistrate)(Horner, Christopher) (Entered: 04/01/2014)
2014-04-01	4	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests NONE by ENERGY & ENVIRONMENT LEGAL INSTITUTE (Horner, Christopher) (Entered: 04/01/2014)
2014-04-01	5	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests NONE by FREE MARKET ENVIRONMENTAL LAW CLINIC (Horner, Christopher) (Entered: 04/01/2014)
2014-04-05	6	First MOTION for Leave to Appear Pro Hac Vice :Attorney Name- David W. Schnare, :Firm- Free Market Environmental Law Clinic, :Address- 9033 Brook Ford Road Burke VA 22015. Phone No. - 571-243-7975. Motion for leave to Appear and Declaration filed by ENERGY & ENVIRONMENT LEGAL INSTITUTE (Attachments: # 1 Declaration Declaration of David W. Schnare for admission pro hac vice)(Horner, Christopher) (Entered: 04/05/2014)
2014-04-08		MINUTE ORDER finding as moot 6 Motion for David W. Schnare Leave to Appear Pro Hac Vice in light of his admission to this court on April 7, 2014. Counsel may enter his appearance as soon as he has obtained an ECF login and password. Signed by Judge Amy Berman Jackson on 4/8/14. (DMK) (Entered: 04/08/2014)
2014-04-21	7	NOTICE of Appearance by David W. Schnare on behalf of All Plaintiffs (Schnare, David) (Entered: 04/21/2014)
2014-04-24	8	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. FEDERAL ENERGY REGULATORY COMMISSION served on 4/3/2014, RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 04/07/2014., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 4/5/2014. ( Answer due for ALL FEDERAL DEFENDANTS by 5/5/2014.) (Horner, Christopher) (Entered: 04/24/2014)
2014-04-29	9	MOTION for Extension of Time to Respond to Complaint by FEDERAL ENERGY REGULATORY COMMISSION (Attachments: # 1 Text of Proposed Order)(Pfaffenroth, Peter) (Entered: 04/29/2014)
2014-04-29	10	Memorandum in opposition to re 9 MOTION for Extension of Time to Respond to Complaint FILED filed by ENERGY & ENVIRONMENT LEGAL INSTITUTE. (Horner, Christopher) (Entered: 04/29/2014)
2014-04-30	11	Memorandum in opposition to re 9 MOTION for Extension of Time to Respond to Complaint WITH PROPOSED ORDER filed by ENERGY & ENVIRONMENT LEGAL INSTITUTE. (Attachments: # 1 Text of Proposed Order Proposed Order accompanying re-file of Opposition)(Horner, Christopher) (Entered: 04/30/2014)
2014-04-30		MINUTE ORDER. In light of plaintiffs' objection to defendant's request for additional time [Dkt. 11], it is ORDERED that plaintiffs provide the Court with the following information by 4:00 pm on Thursday, May 1, 2014: the name of the nominee referenced in plaintiffs' opposition, the date of the nomination, and the status of the nomination, i.e., whether it is pending before a Senate committee or the full Senate, whether a hearing on the nomination has already been scheduled, or any other issue that bears on the urgency of plaintiffs' request. Signed by Judge Amy Berman Jackson on 4/30/2014. (lcabj3) (Entered: 04/30/2014)
2014-04-30		Set/Reset Deadlines: Plaintiff's to provide the Court with the requested nominee information by 4:00 PM on Thursday, May 1, 2014. (jth) (Entered: 04/30/2014)
2014-04-30	12	RESPONSE TO ORDER OF THE COURT re Order,, ADDITIONAL INFORMATION filed by ENERGY & ENVIRONMENT LEGAL INSTITUTE. (Horner, Christopher) (Entered: 04/30/2014)
2014-05-01	13	ORDER granting 9 defendant's Motion to Enlarge Time to Respond to Complaint. It is ORDERED that defendant's response to the complaint is due on or before June 19, 2014. See order for details. Signed by Judge Amy Berman Jackson on 5/1/2014. (lcabj3) (Entered: 05/01/2014)
2014-05-01		Set/Reset Deadlines: Defendant's Answer/Response to the complaint is now due by 6/19/2014. (jth) (Entered: 05/01/2014)
2014-06-19	14	ANSWER to Complaint by FEDERAL ENERGY REGULATORY COMMISSION.(Pfaffenroth, Peter) (Entered: 06/19/2014)
2014-06-20	15	ORDER that, on or before July 18, 2014, defendant shall file a dispositive motion, or, in the alternative, a report setting forth the schedule for production of documents to plaintiff. Signed by Judge Amy Berman Jackson on 6/20/2014. (lcabj3) (Entered: 06/20/2014)
2014-06-20		Set/Reset Deadlines: Defendant shall file a dispositive motion, or, in the alternative, a report setting forth the schedule for production of documents to plaintiff by 7/18/2014. (jth) (Entered: 06/20/2014)
2014-07-18	16	STATUS REPORT by FEDERAL ENERGY REGULATORY COMMISSION. (Pfaffenroth, Peter) (Entered: 07/18/2014)
2014-07-21		MINUTE ORDER. In light of 16 defendant's consent status report, it is ORDERED that defendant shall make any supplemental release to plaintiffs on or before July 25, 2014. In light of the limited nature of the dispute, the Court encourages the parties to work together to resolve it. If the parties believe after the additional releases that any remaining disputes could be resolved with the assistance of a neutral mediator, they should notify chambers and the Court will issue the appropriate referral order. Otherwise, it is FURTHER ORDERED that defendant's motion for summary judgment, if necessary, is due on or before August 1, 2014, with plaintiffs' opposition due on or before August 22, 2014, and defendant's reply due on or before September 5, 2014. Signed by Judge Amy Berman Jackson on 7/21/2014. (lcabj3) (Entered: 07/21/2014)
2014-07-22		Set/Reset Deadlines: Any supplemental release to plaintiffs due on or before 7/25/2014. Summary Judgment motions due by 8/1/2014. Response to Motion for Summary Judgment due by 8/22/2014. Reply to Motion for Summary Judgment due by 9/5/2014. (tb, ) (Entered: 07/22/2014)
2014-08-01	17	MOTION for Summary Judgment by FEDERAL ENERGY REGULATORY COMMISSION (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Exhibit 1 (3/13/13 email), # 4 Exhibit 2 (ECQs), # 5 Declaration of Leonard Tao and exhibits A-G thereto, # 6 Vaughn Index)(Pfaffenroth, Peter) (Entered: 08/01/2014)
2014-08-15		MINUTE ORDER. Defendant is directed to deliver to chambers unredacted versions of the two documents at issue in this case, exhibits 1 and 2 to defendant's motion for summary judgment, by August 29, 2014, for in camera inspection to assist the Court in making a responsible de novo determination. Ray v. Turner, 587 F.2d 1187, 1195 (D.C. Cir. 1978). Signed by Judge Amy Berman Jackson on 8/15/2014. (lcabj3) (Entered: 08/15/2014)
2014-08-15	18	NOTICE of In Camera Submission by FEDERAL ENERGY REGULATORY COMMISSION re Order, 17 MOTION for Summary Judgment (Pfaffenroth, Peter) (Entered: 08/15/2014)
2014-08-20	19	Memorandum in opposition to re 17 MOTION for Summary Judgment filed by ENERGY & ENVIRONMENT LEGAL INSTITUTE, FREE MARKET ENVIRONMENTAL LAW CLINIC. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Schnare, David) (Entered: 08/20/2014)
2014-09-05	20	REPLY to opposition to motion re 17 MOTION for Summary Judgment filed by FEDERAL ENERGY REGULATORY COMMISSION. (Pfaffenroth, Peter) (Entered: 09/05/2014)
2014-11-04	21	ORDER granting 17 defendant's Motion for Summary Judgment. See order for details. Signed by Judge Amy Berman Jackson on 11/4/2014. (lcabj3) (Entered: 11/04/2014)
2014-11-04	22	MEMORANDUM OPINION. Signed by Judge Amy Berman Jackson on 11/4/2014. (lcabj3) (Entered: 11/04/2014)
2014-11-04	23	ERRATA as to title of James Pederson by FEDERAL ENERGY REGULATORY COMMISSION 17 MOTION for Summary Judgment filed by FEDERAL ENERGY REGULATORY COMMISSION. (Pfaffenroth, Peter) (Entered: 11/04/2014)
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