Columbia Riverkeeper et al v. Federal Energy Regulatory Commission, No. 3:2008cv00936 - Document 47 (D. Or. 2009)

Court Description: OPINION AND ORDER: Plaintiffs' motion for summary judgment (doc. # 37) is GRANTED in part and DENIED in part. FERC's motion for summary judgment on Exemption Six (doc. # 27) is DENIED. Signed on 7/24/09 by Magistrate Judge Dennis J. Hubel. (see formal 20-page opinion) (kb)

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF OREGON 9 10 11 COLUMBIA RIVERKEEPER and WILLAMETTE RIVERKEEPER, Oregon nonprofit corporations, 12 Plaintiffs, 13 v. 14 15 FEDERAL ENERGY REGULATORY COMMISSION, an agency of the United States, 16 Defendant. 17 18 19 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Brett Vandenheuvel Brent Foster 724 Oak Street Portland, Oregon 97031 20 21 22 23 24 25 26 Brenna Bell 1515 SE Water Avenue # 102 Portland, Oregon 97202 Attorneys for plaintiffs Karin Immergut United States Attorney District of Oregon Kevin Danielson Assistant United States Attorney 1000 S.W. Third Avenue, Suite 600 Portland, Oregon 97202 Attorneys for defendant 27 28 OPINION AND ORDER Page 1 No. 08-936-HU OPINION AND ORDER 1 HUBEL, Magistrate Judge: 2 Environmental groups Columbia Riverkeeper ( CRK ) and 3 Willamette 4 Federal 5 declaratory relief under the Administrative Procedures Act ( APA ), 6 5 U.S.C. §§ 701 et seq., and the Freedom of Information Act 7 ( FOIA ), 5 U.S.C. §§ 552 et seq. CRK and WRK seek to obtain 8 mailing 9 notified of four public scoping hearings about a proposed 220-mile 10 natural gas pipeline. FERC has provided plaintiffs with mailing 11 lists from which the names and addresses of private individuals 12 have been redacted. Plaintiffs and FERC have filed cross motions 13 for summary judgment. Riverkeeper Energy lists ( WRK ) Regulatory showing 14 the bring this Commission names and action against ( FERC ), addresses of the requesting landowners Factual Background 15 On October 29, 2007, FERC released a Notice of Intent to 16 Prepare an Environmental Impact Statement for the Palomar Gas 17 Transmission Project and Notice of Public Meetings ( Notice or 18 October 29, 2007 Notice ). VandenHeuvel Declaration, Exhibit 6. 19 The Notice described the project, informed landowners adjacent 20 to the pipeline that public hearings would be held, provided 21 information 22 comments. The Notice also stated that Palomar Gas Transmission LLC 23 ( Palomar ) would contact landowners to negotiate property rights, 24 but warned that if the negotiations fail to produce an agreement, 25 the pipeline company could initiate condemnation proceedings. ... 26 Id. The Notice stated that it was being sent to federal, state, about the 27 28 OPINION AND ORDER Page 2 administrative process, and solicited 1 and 2 landowners; environmental and public interest groups; Indian tribes 3 and regional Native American organizations; commentators and other 4 interested parties; and local libraries and newspapers. Id. local government agencies; elected officials; affected 5 FERC held four public hearings (also referred to as scoping 6 hearings) between October and December 2007. FERC admits in its 7 pleadings 8 representative Doug Sipe referred to a list of notice recipients as 9 the landowner that at a list. meeting Other on November comments by 13, Sipe at 2007, the FERC hearing 10 indicated that FERC had a mailing list that was extensive and had 11 been revised numerous times: 12 Issuance of the notice of intent opened the formal comment period. It is during this period that we have accepted written comments on the project. The mailing list is very large and it s a constant revision, so if anybody in the room tonight did not receive a notice of intent I apologize. The landowner list is a constant battle for all of us involved and it keeps changing. I mean, to this day I sent out final environmental impact statements. You d think the addresses would be right by then. We still get a bunch of returns. 13 14 15 16 17 Plaintiffs Response to Defendants Motion for Protective Order, 18 Exhibit 10 (transcript of public scoping meeting held November 13, 19 2007), p. 7. 20 Plaintiffs assert that FERC has not sent the Notice to many of 21 the landowners who are on the pipeline route, thereby failing to 22 advise these landowners about the scope of the project, the 23 landowners legal rights, Palomar s right to exercise eminent 24 domain over their property, upcoming meetings, and deadlines for 25 comment and appeals. 26 /// 27 28 OPINION AND ORDER Page 3 1 Paul Sansone has submitted a declaration stating that he 2 attended a meeting arranged by Sen. Wyden s office, on January 28, 3 2008, with FERC Commissioner John Wellinghoff and FERC staff. 4 VandenHeuvel Declaration, Exhibit 15 (Second Declaration of Paul 5 Sansone). Sansone states that also in attendance were Sen. Wyden s 6 staff, Gov. Kulongoski s Natural Resources Policy Director, a 7 Clackamas County Commissioner, and landowners. Id. Sansone states 8 that the landowners provided multiple detailed examples of lack 9 of notice, and that Commissioner Wellinghoff apologized for that. 10 Id. 11 Paul Dryden, a landowner on the Palomar pipeline route, states 12 in a declaration that he had been approached by companies seeking 13 right of entry to his farm, and had told them it would be refused. 14 Id. at Exhibit 14 (Declaration of Paul Dryden). FERC did not notify 15 him of an August 5, 2008 scoping meeting in Molalla. He states that 16 it was only through CRK that he learned of the meeting, where it 17 was revealed that the pipeline would pass through his property. Id. 18 Dryden wrote a letter to FERC on August 13, 2008, protesting the 19 lack of notification to him. Id. (copy of letter attached to 20 declaration). 21 On February 12, 2008, plaintiffs submitted a FOIA request for 22 all mailing lists FERC used to invite the public to the Palomar 23 scoping meetings between October and December 2007, and all mailing 24 lists compiled at scoping meetings in November and December 2007. 25 (FOIA Request #1). VandenHeuvel Declaration Exhibit 1. 26 /// 27 28 OPINION AND ORDER Page 4 1 On March 12, 2008, plaintiffs received a response from FERC 2 stating that a search of its files found no responsive documents 3 to your request. Id. at Exhibit 3. On April 22, 2008, plaintiffs 4 appealed FERC s denial of the FOIA request. By letter dated June 5 11, 2008, FERC rejected the appeal, stating that a thorough 6 review of 7 Director commenced a thorough, good faith search for responsive 8 documents by asking appropriate staff members to check the non- 9 public file for anything that could possibly be construed as procedures and 10 responsive 11 documents had been found. to processes plaintiffs had requests; been and that made; no that the responsive Id. at Exhibit 4. 12 Veronica Moten, FERC s administrative officer responsible for 13 responding to FOIA requests for the past five years, testified at 14 her deposition that she responds to about 100 FOIA requests per 15 year. 16 Support of Motion for Summary Judgment, Exhibit 9 (Moten dep.) 17 9:11-17, 23-25. Ms. Moten testified that she spent probably a 18 couple of hours responding to plaintiffs FOIA request, id. at 19 11:12-13, 20 electronic library database system, which is already available to 21 the public. Id. 13:2-10. She acknowledged that she did not search 22 any e-mails or paper files, and did not ask Sipe or any other FERC 23 employee about the request at the time of the search. Id. at 13:17- 24 25. At the time of the search, she did not ask the project manager 25 whether there was a mailing list. Id. at 17:5-25. 26 /// Testimony and of that Veronica the 27 28 OPINION AND ORDER Page 5 only Moten, place Plaintiffs she Memorandum searched was in FERC s 1 With the June 11, 2008 letter reiterating that a review of 2 procedures and a thorough search of the non-public file had turned 3 up 4 request, FERC attached a landowner list that had been given to FERC 5 by Palomar on April 18, 2008, but with the names and addresses of 6 individuals blacked out (the Palomar landowner list). Plaintiffs 7 Exhibit 4. FERC did not indicate whether the Palomar landowner list 8 was the same list FERC had used to mail the Notice. Id. Doug Sipe 9 has given conflicting testimony on whether the Palomar landowner 10 list is responsive to plaintiffs FOIA request #1, which requested 11 mailing lists from October to December of 2007, not April 2008. See 12 deposition of Doug Sipe, VandenHeuvel Declaration Exhibit 8, at 13 36:9-11 ( Q: Is it correct that the October 2007 list is different 14 from the April 2008 list? A: Yes. That s why they call it an 15 updated mailing list. ) and Declaration of Doug Sipe ¶ 5 ( It is my 16 belief that the April 18, 2008 list contains all the names included 17 in the list staff used to mail the October 29, 2007 [Notice]. ) nothing that could possibly be responsive to plaintiffs 18 On June 17, 2008, plaintiffs sent a FOIA request to FERC for 19 an unredacted version of the Palomar landowner list (FOIA request 20 #2). 21 provided 22 Declaration ¶ 6; VandenHeuvel Declaration Exhibit 22. VandenHeuvel the same Declaration redacted Exhibit Palomar 20. In landowners response, list. FERC Watson 23 On July 15, 2008, plaintiffs appealed FERC s decision to 24 release the landowners list in redacted form. FERC responded to the 25 appeal by letter dated August 25, 2008, affirming its decision to 26 withhold the names and addresses of individual landowners and 27 28 OPINION AND ORDER Page 6 1 citing 2 Declaration ¶ 7. However, on September 22, 2008, Douglas Sipe sent 3 an email to Michael Watson, FERC s counsel, enclosing the initial 4 mailing list for the Notice (presumably the one sent out on October 5 29, 2007). Id. at Exhibit 10. Exemption Six to FOIA, 5 U.S.C. § 552(b)(6). Watson 6 On February 10, 2009, pursuant to discovery requests, FERC s 7 counsel, Kevin Danielson, sent an email to plaintiffs counsel with 8 redacted versions of FERC s mailing lists of October 3, 2007 and 9 October 17, 2007. Id. at Exhibit 5; Danielson Declaration, Exhibit 10 1. On February 12, 2009, FERC submitted to plaintiffs a redacted 11 version of the October 28, 2007 mailing list. Id. 12 13 Standards FOIA s purpose is to pierce the veil of administrative 14 secrecy 15 scrutiny. 16 (1976)(internal quotation marks and citation omitted). Thus, FOIA 17 "mandates a policy of broad disclosure of government documents." 18 Maricopa Audubon Society v. U.S. Forest Service, 108 F.3d 1082, 19 1085 (9th 20 withhold a document, or portions of a document, only if the 21 material falls within one of the nine statutory exemptions found in 22 § 552(b). See Kamman v. IRS, 56 F.3d 46, 48 (9th Cir. 1995). These 23 exemptions are "explicitly exclusive," Dept of Justice v. Tax 24 Analysts, 492 U.S. 136, 151 (1989) and must be narrowly construed 25 "in light of FOIA's dominant objective of disclosure, not secrecy." 26 Rose, 425 U.S. at 361. FOIA imposes on agencies the burden of and ... Dept. open of agency Air Force v. to Rose, the 425 light U.S. of public 352, 361 Cir. 1997). When a FOIA request is made, an agency may 27 28 action OPINION AND ORDER Page 7 1 sustaining their actions and proving that withheld materials are 2 exempt from disclosure. 5 U.S.C. § 552(a)(4)(B); John Doe Agency v. 3 John Doe Corp., 493 U.S. 146, 152 (1989); Lion Raisins v. U.S. 4 Dept. of Agriculture, 354 F.3d 1072, 1079 (9th Cir. 2004). 5 Exemption Six of FOIA prohibits disclosure of personnel and 6 medical files and similar files the disclosure of which would 7 constitute a clearly unwarranted invasion of personal privacy. 5 8 U.S.C. § 552(b)(6). Under Exemption Six, the term similar files 9 has been construed broadly, U.S. Dep t. of State v. Wash. Post Co., 10 456 11 containing information about particular individuals. Forest Service 12 Employees for Environmental Ethics v. U.S. Forest Service, 524 F.3d 13 1021, 1024 (9th Cir. 2008). 14 requirement, the court must next consider whether the disclosure of 15 the documents would constitute a clearly unwarranted invasion of 16 their personal privacy. 5 U.S.C. § 552(b)(6). In conducting the 17 inquiry, the court balances the public interest in disclosure 18 against the interest Congress intended the exemption to protect. 19 Id.; U.S. Dept. of Justice v. Reporters Committee for Freedom of 20 the Press, 489 U.S. 749, 776 (1989); United States Dept. of Defense 21 v. Federal Labor Relations Authority, 510 U.S. 487, 489 (1994). U.S. 595, 600 (1982), to apply to government documents If documents meet the similar files 22 The only relevant public interest is the extent to which 23 disclosure would contribute to the public s understanding of the 24 activities 25 Relations 26 substantial when the information in the documents sheds light on and operations Authority, 510 27 28 OPINION AND ORDER Page 8 of U.S. the at government. 495. Public Federal Labor interest is 1 an agency s performance of its statutory duties. Id. at 495-96. 2 FOIA s purpose is not fostered by disclosure of information about 3 private citizens ... that reveals little or nothing about an 4 agency s own conduct. Id. at 496. 5 6 FOIA cases are typically decided on summary judgment. Lane v. Dept. of Interior, 523 F.3d 1128, 1134 (9th Cir. 1997). 7 Discussion 8 Plaintiffs move for summary judgment in their favor on both 9 FOIA requests. For FOIA request #1, they seek a declaration that 10 FERC violated FOIA and the APA by failing to conduct an adequate 11 search and withholding responsive documents, and that the court 12 order the production of documents responsive to FOIA request #1. 13 (First Claim for Relief). For FOIA request #2, plaintiffs ask the 14 court to declare that FERC violated FOIA by improperly using 15 Exemption Six to redact the April 18, 2008 mailing list, and order 16 FERC to produce unredacted documents responsive to FOIA request #2 17 (Third Claim for Relief).1 FERC moves for summary judgment in its 18 favor on Exemption Six. 19 /// 20 21 1 27 Plaintiffs asserted a Second Claim for Relief in their complaint, which was based on FOIA request #1 and alleged that if FERC did not have the documents requested, its action of losing or destroying the requested documents between the time the list or lists were used and the time plaintiffs requested them was arbitrary and capricious and in violation of the law. Complaint ¶ 23. The allegation does not specify whether the claim is asserted under FOIA or the APA or both. There is no evidence before the court that the documents requested pursuant to FOIA request #1 were lost or destroyed. That claim is therefore dismissed. 28 OPINION AND ORDER Page 9 22 23 24 25 26 1 FERC asserts as a threshold matter that the APA does not apply 2 to this case because FOIA provides an adequate remedy. FERC is 3 correct. The APA does not provide an independent basis for subject 4 matter 5 Authority v. General Dynamics Corp., 136 F.3d 641, 645 (9th Cir. 6 1988, citing Califano v. Sanders, 430 U.S. 99, 105 (1977). The 7 APA s waiver 8 adequate remedy is unavailable elsewhere. Id. See also San Diego 9 Navy Broadway Complex Coalition v. United States Dep t. of the 10 Navy, 2008 WL 110900 (S.D. Cal. 2008)(same). The relief plaintiffs 11 seek is available under FOIA, which requires federal entities to 12 make requested documents promptly available to any person, 5 13 U.S.C. 14 exemptions. 15 16 jurisdiction § of in the sovereign 552(a)(3)(A), district immunity unless it courts. does falls not Tucson apply within Airport unless one of an the To the extent that plaintiffs claims are asserted under the APA, they are dismissed for lack of subject matter jurisdiction. 17 FERC concedes that it failed to conduct an adequate search for 18 the documents requested in FOIA request #1. However, FERC has not 19 addressed the other component of plaintiffs motion for summary 20 judgment, which is FERC s failure to produce documents responsive 21 to FOIA request #1. FERC is ordered to make an adequate search and 22 to produce all documents responsive to plaintiffs FOIA request #1. 23 Plaintiffs have urged the court to find that FERC s failure to 24 produce documents responsive to FOIA request #1 was arbitrary and 25 capricious. 5 U.S.C. § 552 (a)(4)(F). Although FERC s response to 26 plaintiffs FOIA request #1 was, at best, a very poor job, I am 27 28 OPINION AND ORDER Page 10 1 unpersuaded that the record supports a finding that FERC acted 2 arbitrarily and capriciously. 3 The remaining issue is whether, under the balancing test for 4 personal privacy and public interest, the redacted mailing lists 5 are proper pursuant to Exemption Six of FOIA. 6 A. 7 Plaintiffs assert that FERC s disclosure of the landowners 8 names and addresses will have minimal impact on their personal 9 privacy because 1) FERC routinely releases landowner lists for 10 similar pipelines; 2) the mailing list does not reveal any private 11 information; 3) FERC provides the landowner lists to private 12 corporations; and 4) there is little risk of harm or embarrassment 13 to the landowners. 14 Privacy interest 1. Does FERC routinely release similar lists? 15 Plaintiffs contend that FERC routinely publishes on its 16 website the names and addresses for all landowners along pipeline 17 routes other than the Palomar route. They offer as examples three 18 other prominent pipelines proposed for Oregon: Ruby, NorthernStar 19 and Oregon LNG. For each, the FERC website contains unredacted 20 lists of names and addresses of landowners on the pipeline route. 21 See VandenHeuvel Declaration Exhibit 16 (excerpt of names and 22 addresses of landowners affected by the Ruby Pipeline), Exhibit 17 23 (excerpt of names and addresses of landowners affected by the 24 NorthernStar Pipeline), Exhibit 18 (excerpt of names and addresses 25 of landowners affected by the Oregon LNG pipeline). Plaintiffs 26 dismiss FERC s contention that individuals on the Palomar landowner 27 28 OPINION AND ORDER Page 11 1 list have a strong privacy interest, on the ground that it is 2 contradicted by FERC s regular practice of publishing similar lists 3 on its website, and FERC s failure to articulate any reason why 4 landowners 5 interest than landowners on the unredacted pipeline lists published 6 on FERC s website. Plaintiffs point out that FERC has also failed 7 to 8 NorthernStar and Oregon LNG pipelines, whose names and addresses 9 have been made public, have suffered any harm. 10 for provide the any Palomar evidence pipeline that have a landowners stronger along the privacy Ruby, FERC counters that it has a policy and practice of not 11 intentionally 12 citizens involved with pipeline projects, based on FOIA Exemption 13 Six. In support of this statement, FERC submits the Declaration of 14 Jacqueline Holmes. But Holmes s declaration does not suggest that 15 FERC had such a policy and practice when plaintiffs made their 16 FOIA request, 17 declaration says that FERC has relied on private entities to 18 determine whether landowner lists containing private information 19 about individuals should be public or not. She states as follows: 20 Many landowner lists are submitted as privileged or non-public by applicants (private entities) in order to protect the privacy interests of individual landowners 21 22 23 disclosing or even the that names it and currently addresses does. of private Moreover, The lists are frequently requested through the [FOIA], and the Commission has consistently withheld the names and addresses of private citizens pursuant to FOIA Exemption 6. 5 U.S.C. § 552(b)(6)(2000 & Supp. IV 2004). 24 25 26 It has now been brought to the Commission s attention that a number of lists have been filed by some applicants as public. See Plaintiff s Memorandum in Support of Motion for Summary Judgment and Response to Defendant s Motion for Summary Judgment, p. 20. When a document is 27 28 OPINION AND ORDER Page 12 her 1 2 3 filed by an applicant with the Commission as public, it is automatically placed in the Commission s public files. The Commission must rely on the entity submitting the information to properly label information not appropriate for public review. 4 Holmes Declaration ¶¶ 2, 3 (emphasis added). Holmes goes on to say 5 in her declaration that FERC is now taking steps to redesignate as 6 private the landowner lists previously filed by applicants as 7 public, and inform applicants that any documents that include 8 privacy information such as the names and personal addresses of 9 individual landowners must be filed with the Commission as non10 public or privileged. Id. at ¶ 4. 11 FERC argues that its inadvertent release of the names and 12 addresses of individuals affected by other FERC projects does not 13 eliminate or reduce the privacy interest of individuals in this 14 case. But the Holmes Declaration does not suggest that the release 15 of the names and addresses of individuals involved in other FERC 16 projects was inadvertent, and more importantly, does not withholding names and 17 demonstrate that FERC had a policy of 18 addresses at the time of plaintiffs original FOIA request, or even 19 at present. 20 FERC has failed to provide any evidence of a reason for 21 treating the Palomar landowner list differently from the Ruby, 22 NorthernStar and Oregon LNG landowner lists. 23 2. Does the mailing list implicate personal privacy? 24 The mere disclosure of a list of names and other identifying 25 information is not inherently and always a significant threat to 26 the privacy of the individuals on the list. United States Dept. of 27 28 OPINION AND ORDER Page 13 1 State v. Ray, 502 U.S. 164, 177 n. 12 (1991). Whether disclosure of 2 a list of names is a significant or a minimal threat to privacy 3 depends upon the characteristics revealed by virtue of being on 4 the particular list, and the consequences likely to ensue. Id. 5 (internal quotations and citation omitted). 6 Plaintiffs assert that the Palomar landowner list does not 7 reveal private information because it does not reveal anything 8 personal about the individuals on the list. Plaintiffs contrast 9 this case with Multnomah County Medical Soc. v. Scott, 825 F.2d 10 1410 (9th Cir. 1987), where the court held that a list of all 11 Medicare recipients in Multnomah County implicated a significant 12 privacy interest 13 reveal either that they are senior citizens or disabled. 825 F.2d 14 at 1415. because the beneficiaries identities would 15 FERC asserts that names and addresses are private information, 16 citing Bibles v. Oregon Natural Desert Ass n, 510 U.S. 355, 356 17 (1997)(environmental 18 newsletter sent by BLM) and Federal Labor Relations Authority, 510 19 U.S. at 489, 502 (labor union not entitled to documents disclosing 20 home addresses of federal civil service employees not members of 21 the union). group not entitled to mailing list for 22 Plaintiffs distinguish Federal Labor Relations Authority on 23 the ground that the individuals on the Palomar landowner list did 24 not make a personal choice to have the pipeline constructed on 25 their property, so that the landowner lists do not reveal any 26 information about the landowners actions or decisions. Plaintiffs 27 28 OPINION AND ORDER Page 14 1 contrast the Court s comment in Federal Relations Authority: 2 Here, for the most part, the unions seek to obtain the addresses of nonunion employees who have decided not to reveal their addresses to their exclusive representative. Perhaps some of these individuals have failed to join the union that represents them due to lack of familiarity with the union or its services. Others may be opposed to their union or to unionism in general on practical or ideological grounds. Whatever the reason that these employees have chosen not to become members of the union or to provide the union with their addresses, however, it is clear that they have some nontrivial privacy interest in nondisclosure, and in avoiding the influx of unionrelated mail, and, perhaps, union-related telephone calls or visits, that would follow disclosure. 3 4 5 6 7 8 9 10 510 U.S. at 500-501. 11 I note further that the holding of Federal Labor Relations 12 Authority rested in large part, not on the substantiality of the 13 privacy interest at stake, but rather on the Court s finding that 14 the public interest served by disclosure was negligible because 15 disclosure would reveal little or nothing about the employing 16 agencies or their activities. 510 U.S. at 498. 17 18 19 20 Against the virtually nonexistent FOIA-related public interest in disclosure, we weigh the interest of bargaining unit employees in nondisclosure of their home addresses. [Citation omitted] Because a very slight privacy interest would suffice to outweigh the relevant public interest, ... [i]t is enough for present purposes to observe that the employees interest in nondisclosure is not insubstantial. 21 510 U.S. at 501. The Federal Labor Relations Authority case was not 22 similar to the situation in this case, either in the privacy 23 interest or in the public interest in disclosure. 24 Similarly, the Supreme Court s Bibles decision addressed only 25 the public interest inquiry, not the privacy interest involved. The 26 Ninth Circuit s decision, Oregon Natural Desert Ass n v. Bibles, 83 27 28 OPINION AND ORDER Page 15 1 F.3d 1168 (9th Cir. 1996), rev d on other grounds, 519 U.S. 355 2 (1997), 3 interest. The Ninth Circuit affirmed Judge Marsh s order to the BLM 4 that it disclose a mailing list used to send out a BLM newsletter, 5 and the Supreme Court did not reverse the Ninth Circuit on the 6 privacy interest issue. 7 is more like this case with respect to the privacy The Ninth Circuit concluded that disclosure of the list would 8 not 9 privacy, under 5 U.S.C. § 552(b)(6), because the majority of the 10 individuals had asked to be placed on the BLM mailing list, in 11 order to receive mailings about BLM activities. In light of the 12 mailings already received by the individuals and the similar 13 subject matter of the mailings from ONDA and the BLM, the court 14 found the privacy interest to be minimal. 83 F.3d at 1171. The 15 Ninth Circuit s analysis, based on the volitional nature of the 16 individuals presence on the BLM mailing list and their interest in 17 receiving mailings on high desert issues is consistent with Federal 18 Labor Relations Authority s holding that the privacy interest turns 19 on whether the names and addresses themselves reveal private 20 decisions 21 contacted or not to be contacted. Here, the list is of landowners 22 in the path of a possible pipeline. The landowners took no action 23 to get either on or off this list. Their presence on the list was 24 involuntary. 25 Authority nor the two Bibles decisions supports FERC s position. 26 constitute of 3. a those I clearly individuals, conclude that and neither invasion reflect Federal a of personal desire Labor to be Relations Has FERC provided the mailing lists to private corporations? 27 28 unwarranted OPINION AND ORDER Page 16 1 Plaintiffs assert that FERC has already shared the Palomar 2 landowner list with a private corporation, Palomar, and that 3 Palomar 4 VandenHeuvel Declaration Exhibit 8 (Deposition of Doug Sipe) 21:4- 5 25. 6 corporation are already contacting some or all of the names on the 7 list, regardless of whether the landowner wishes or does not wish 8 to be contacted, the privacy interest of the individuals is greatly 9 reduced. They 10 has used argue the that list when to both send the numerous communications. government and a private FERC has not addressed this argument. 4. Does disclosure landowners? risk harm or embarrassment are very to 11 Plaintiffs argue that there low personal 12 consequences for Palomar landowners whose names and addresses are 13 disclosed to plaintiffs, because plaintiffs seek the information 14 only for the purpose of ensuring that the landowners are receiving 15 legally mandated notices from FERC.2 They point out that FERC has 16 not identified any harm to the landowners resulting from 17 disclosure, such as the unwanted union contacts in Federal Labor 18 Relations Authority or possible embarrassment and retaliation, as 19 in Ray. See also Forest Service Employees, 524 F.3d at 1026 20 (avoidance of harassment is cognizable privacy interest under 21 Exemption Six), citing Painting Indus. of Haw. Mkt. Recovery Fund 22 v. Dep t. of Air Force, 26 F.3d 1479, 1483 (9th Cir. 1994) and 23 24 2 27 Although the reasons the documents are sought under the FOIA are irrelevant to the balancing test. Forest Service Employees, 524 F.3d at 1025, citing Federal Labor Relations Authority, 510 U.S. at 496 ( [W]hether an invasion of privacy is warranted cannot turn on the purposes for which the request for information is made. )(emphasis in original) 28 OPINION AND ORDER Page 17 25 26 1 Minnis v. U.S. Dep t. of Agric., 737 F.2d 784, 787 (9th Cir. 1984). 2 FERC has not responded to this argument. 3 B. 4 As noted, the only relevant public interest under Exemption 5 Six is the extent to which the information sought would shed light 6 on an agency s performance of its statutory duties or otherwise let 7 citizens know 8 Relations Authority, 510 U.S. at 497, quoting U.S. Dep t. of 9 Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 773 10 Public interest what their government is up to. Federal Labor (1989)(internal quotation marks omitted). 11 Plaintiffs assert that the public interest is substantial 12 because plaintiffs seek to assess whether FERC was complying with 13 its obligation to provide notice to all those entitled to notice 14 under 15 component of NEPA is ensuring that environmental information is 16 made available to government decisionmakers and the interested 17 public before governmental action is taken, and to that end, 18 federal 19 facilitate public involvement in decisions which affect the quality 20 of the human environment. 40 C.F.R. §§ 1500.1(b), 1500.2(d). 21 Plaintiffs point out FERC s regulations require compliance with 22 NEPA s requirement of public involvement. 18 C.F.R. § 380.9. 23 NEPA and agencies Plaintiffs FERC are regulations. specifically contend that They argue directed despite this that to a crucial encourage mandate, and FERC s 24 notification to landowners that their property was subject to 25 condemnation under eminent domain did not reach many of those 26 landowners. Plaintiffs cite the Sansone and Dryden declarations, 27 28 OPINION AND ORDER Page 18 1 discussed above. 2 Plaintiffs contend that disclosure of the mailing lists will 3 shed light on FERC s performance of its duties, because disclosure 4 enables the public to review whether FERC complied with its public 5 notice mandate, to oversee FERC s procedures, and to ensure that 6 all affected landowners are on the mailing list. They argue, 7 whether FERC provided adequate notice to all of the affected 8 landowners is an ongoing question, that can only be answered by 9 public disclosure of the mailing list. 10 FERC conceded at oral argument that disclosure of the mailing 11 list would shed light on FERC s activities, but argues that that 12 disclosure would not contribute to the understanding of how FERC 13 compiles its mailing list, and argues that just because FERC might 14 have missed some of the affected landowners on the list does not 15 mean it was not trying to do its job. Defendant s Reply, p. 7. 16 FERC asserts that revealing the names and addresses would not 17 contribute to the public s understanding of how well FERC was doing 18 its job unless someone double-checked the owner of each piece of 19 property next to the path of the proposed pipeline and compared it 20 to FERC s list. Id. At oral argument, plaintiffs acknowledged that 21 this was their intention. 22 Conclusion 23 FERC has not carried its burden of proving the withheld 24 materials are exempt from disclosure. The evidence does not support 25 the existence of a clearly unwarranted invasion of privacy as 26 that statutory term is interpreted in Supreme Court and Ninth 27 28 OPINION AND ORDER Page 19 1 Circuit jurisprudence. Nor has FERC carried its burden of proving 2 that the information sought by plaintiffs would not shed light on 3 FERC s performance of its statutory duties governing notice. 4 Plaintiffs motion for summary judgment (doc. # 37) is GRANTED 5 in part and DENIED in part. FERC is ordered to search for and to 6 produce the documents requested in plaintiffs FOIA requests #1 and 7 #2, with names and addresses. To the extent that plaintiffs claims 8 are based on the APA, they are dismissed for lack of subject matter 9 jurisdiction. Plaintiffs request that the court find FERC s 10 actions arbitrary and capricious is denied. Plaintiffs second 11 claim for relief is dismissed. 12 13 14 FERC s motion for summary judgment on Exemption Six (doc. # 27) is DENIED. IT IS SO ORDERED. 15 16 Dated this __24th____ day of 17 July , 2009. /s/ Dennis J. Hubel 18 19 Dennis James Hubel United States Magistrate Judge 20 21 22 23 24 25 26 27 28 OPINION AND ORDER Page 20

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