Niskanen Center v. FERC

 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued September 13, 2021         Decided December 17, 2021

                        No. 20-5028

                    NISKANEN CENTER,
                       APPELLANT

                             v.

       FEDERAL ENERGY REGULATORY COMMISSION,
                     APPELLEE


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:19-cv-00125)


    Megan C. Gibson argued the cause for appellant. With
her on the briefs were Ciara Wren Malone and David
Bookbinder.

    Peter C. Pfaffenroth, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief was R. Craig
Lawrence, Assistant U.S. Attorney.

   Before: ROGERS and TATEL, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.

    Opinion for the Court filed by Circuit Judge TATEL.

    Concurring opinion by Senior Circuit Judge RANDOLPH.
                              2
     TATEL, Circuit Judge: In this Freedom of Information
Act case, a nonprofit seeks the names and addresses of
property owners along the route of a proposed pipeline.
Although the Federal Energy Regulatory Commission
concluded that the property owners’ privacy interests
outweighed the public interest in this identifying information,
it agreed to a more limited disclosure—the property owners’
initials and street names. The district court found that FERC’s
proposal struck the proper balance between these competing
interests. We agree.

                              I.
     Before building a pipeline, a natural-gas company must
obtain a certificate that public convenience and necessity
require it. 15 U.S.C. § 717f(c), (e). FERC may issue such a
certificate only after notice to interested parties. 15 U.S.C.
§ 717f(c). Its regulations charge certificate applicants with
providing this notice. 

(d). Certificate
applicants must identify affected landowners, notify them by
mail and publication, and submit lists of the landowners to
FERC for its review. 

 Landowners wishing to oppose
certification have a limited window of time to intervene in the
administrative proceedings. Judicial review is available only
following a timely rehearing petition by a party to the
administrative proceedings. See 15 U.S.C. § 717r(a).

    With a certificate of public convenience and necessity in
hand, a pipeline company wields authority to seize private
property by eminent domain. 15 U.S.C. § 717f(h). In practice,
courts may award a certificate holder immediate possession
before determining the compensation due to the property’s
owner. See PennEast Pipeline Co., LLC v. New Jersey, 

, 2253 (2021). Defective notice of a certificate
application may thus leave property owners facing sudden and
unexpected condemnation of their land with little recourse.
                              3
     Niskanen Center is a nonprofit think tank that represents
landowners affected by pipeline construction. In connection
with its investigation into whether FERC was meeting its
statutory notice obligations, Niskanen filed a FOIA request
seeking landowner lists for the since-discontinued Atlantic
Coast Pipeline project.

     In response, FERC withheld the names and addresses of
individual landowners under FOIA Exemption 6, which
shields records if their disclosure “would constitute a clearly
unwarranted invasion of personal privacy.” 

(b)(6). FERC concluded that releasing this information
would “expose the landowners to an unwanted invasion of
privacy” and that the balance of public and privacy interests
“favors protecting the significant privacy interest of the
landowners.”

     Niskanen sued to compel disclosure, and the parties each
moved for summary judgment. During a conference on the
motions, the district court attempted to steer the parties to
compromise. To that end, it asked Niskanen’s counsel to
explain what the organization intended to do with the full
names and addresses of affected landowners and why partial
disclosure—for example, of only property owner initials and
street names—would be inadequate for that purpose.
Niskanen responded that it wanted to compare entries on the
list with public records of landowners along the pipeline route
to assess whether the pipeline company had notified the right
people. But its only explanation for why it needed full names
and addresses for that task was the possibility that a current
landowner might share initials with the previous owner. When
pressed by the district court, Niskanen accepted that this
scenario would be, in the court’s words, “pretty rare.”
Niskanen disclaimed any interest in contacting affected
landowners. Hearing no reason Niskanen needed all it sought,
                              4
the court directed the parties to negotiate a more limited
disclosure that would protect the landowners’ privacy.

     Negotiations failed. The parties informed the court that
FERC had offered to provide initials and street names for
individual landowners, but Niskanen insisted on full street
addresses. The court granted summary judgment to FERC on
the condition that it provide initials and street names as it
proposed. Niskanen Center v. FERC, 

(D.D.C. 2020). Full disclosure of landowner names and
addresses, the court found, would do little to advance the
public interest. Based on Niskanen’s statements at the
summary judgment hearing, the court found that street names
and initials would be more than enough to allow Niskanen to
compare the landowner lists to public records. The court
concluded: “The proposed limited disclosure here is a just
outcome, for it protects the privacy interests of thousands of
affected landowners—by withholding additional personal
information—without sacrificing the public’s interest in
disclosure.” 

.

     Unsatisfied, Niskanen appealed. “We review the district
court’s grant of summary judgment de novo.” Billington v.
DOJ, 

 (D.C. Cir. 2000). Though the parties
spar fiercely over FERC’s track record of notifying affected
landowners, that dispute is far afield. The issue presented for
our review is narrow: whether the incremental public interest
in disclosing names and addresses of property owners along a
pipeline route—rather than only their street names and
initials—outweighs the incremental burden on their privacy.

                              II.
    FOIA seeks to “‘open agency action to the light of public
scrutiny’” by mandating disclosure of agency records unless
subject to an enumerated statutory exemption. ACLU v. DOJ,
                              5

 (D.C. Cir. 2014) (quoting Department of
the Air Force v. Rose, 

 (1976)). “Official
information that sheds light on an agency’s performance of its
statutory duties falls squarely within that statutory purpose.
That purpose, however, is not fostered by disclosure of
information about private citizens that is accumulated in
various governmental files but that reveals little or nothing
about an agency’s own conduct.” DOJ v. Reporters
Committee for Freedom of the Press, 

(1989).

     To this end, Exemption 6 protects “personnel and
medical files and similar files the disclosure of which would
constitute a clearly unwarranted invasion of personal
privacy.” 

(b)(6). The parties agree that the
landowner lists qualify as “similar files” because they contain
information that “applies to a particular individual.”
Department of State v. Washington Post Co., 

 (1982). “To apply [E]xemption 6, a court must first
determine whether disclosure would compromise a
substantial, as opposed to a de minimis, privacy interest. If a
substantial privacy interest is at stake, then the court must
balance the individual’s right of privacy against the public
interest in disclosure.” Prison Legal News v. Samuels, 

 (D.C. Cir. 2015) (internal quotation marks
and citations omitted). Once disclosed to a requester, records
are publicly available, and so the court must consider the
public interest and privacy ramifications of disclosure to the
public at large. National Association of Retired Federal
Employees v. Horner, 

 (D.C. Cir. 1989)
(“The statute requires that non-exempt files be disclosed to
‘any person.’ 

(a)(3). That is, information
available to anyone is information available to everyone.”).
And, central to this case, the balancing inquiry focuses “not
on the general public interest in the subject matter of the
                               6
FOIA request, but rather on the incremental value of the
specific information being withheld.” Schrecker v. DOJ, 

 (D.C. Cir. 2003).

     The threshold requirement of a substantial privacy
interest “is not very demanding.” Multi Ag Media LLC v.
Department of Agriculture, 

 (D.C. Cir.
2008). We have consistently found that the privacy interest in
an individual’s name and address surmounts this low bar. See,
e.g., Judicial Watch, Inc. v. FDA, 

 (D.C.
Cir. 2006) (names and addresses of individuals associated
with abortion medication); National Association of Home
Builders v. Norton, 

 (D.C. Cir. 2002) (parcel
numbers where pygmy owls were spotted); Painting &
Drywall Work Preservation Fund, Inc. v. Department of
Housing & Urban Development, 

 (D.C.
Cir. 1991) (names and addresses of construction contractors);
Reed v. NLRB, 

 (D.C. Cir. 1991) (names
and addresses of employees eligible to vote); SafeCard
Services, Inc. v. SEC, 

 (D.C. Cir. 1991)
(names and addresses of third parties mentioned in witness
interviews); FLRA v. Department of Treasury, 

,
1452 (D.C. Cir. 1989) (names and addresses of agency
employees); Horner, 

 (names and addresses of
retired employees). The Supreme Court has said the same. See
Department of Defense v. FLRA, 

 (1994)
(“it is clear that [civil service employees] have some
nontrivial privacy interest in nondisclosure” of their
addresses). “In the context of an individual residence, the
court has recognized that ‘the privacy interest of an individual
in avoiding the unlimited disclosure of his or her name and
address is significant.’” Norton, 

 (quoting
Horner, 

).
                                7
     True, we have at times observed that “the disclosure of
names and addresses is not inherently and always a significant
threat to the privacy of those listed,” and so we must consider
“the characteristic(s) revealed by virtue of being on the
particular list, and the consequences likely to ensue.” Horner,

. That said, we have found a significant
privacy interest whenever the information sought was of a
type that might invite unwanted intrusions, even absent
evidence that such intrusions had occurred in the past. In
National Association of Retired Federal Employees v.
Horner, for example, we “assume[d]” that businesses would
take the opportunity to market services to the retirees whose
names and addresses were at issue. 

. In Department
of Defense v. FLRA, the Supreme Court found a substantial
privacy interest because “[m]any people simply do not want
to be disturbed at home by work-related matters.” See FLRA,
510 U.S. at 500–01. Even the possibility of wayward
birdwatchers has nudged us past this threshold question. See
Norton, 309 F.3d at 34–35 (noting “weak” evidence of
trespassing by birdwatchers but nonetheless “[v]iewing the
asserted privacy interests as involving more than minimal
invasions of individual privacy”). The risk of unwanted
contact or solicitation here is similar. And the landowners’
privacy interests are more acute than in many Exemption 6
cases because they took no action to avail themselves of any
government benefit but instead appear on FERC’s lists by
mere happenstance of geography.

     Finding more than a minimal privacy interest, we turn to
the public interest in disclosure, and in assessing this interest,
we consider only the “incremental value” of the specific
information withheld. Schrecker, 

.

   The public obviously has a strong interest in whether
FERC fulfills its statutory notice obligations. See Reporters
                               8
Committee, 

 (“Official information that sheds
light on an agency’s performance of its statutory duties falls
squarely within [FOIA’s] statutory purpose.” (internal
quotation marks omitted)). But to determine whether it does
so, the public has no need for the personal identifying
information of affected landowners. Indeed, Niskanen
concedes that the redacted lists allow it and other members of
the public to ascertain a great deal about what FERC and
certificate applicants are up to. For example, it notes that it
has been able to identify eighty-four landowners on the lists
for whom the pipeline company was unable to find an address
and so could not have provided notice by mail. At the same
time, despite the district court’s repeated prodding, Niskanen
offered the court no cogent reason it needed the landowners’
full names and addresses. The district court thus found that
“initials and street names would be sufficient” to allow
Niskanen to determine whether the pipeline company was
notifying affected landowners. Niskanen, 436 F. Supp. 3d at
214. “The addition of the redacted identifying information
would not shed any additional light on the Government’s
conduct of its obligation.” Department of State v. Ray, 

 (1991).

     As in other cases where the requesting party “failed to
express” how redacted identifying information would advance
public understanding, we agree with the district court that the
privacy interests here outweigh the public interest in
disclosure. Carter v. Department of Commerce, 

,
391–92 & n.13 (D.C. Cir. 1987). Niskanen has given us no
basis for disturbing the district court’s conclusion that street
names and initials would give it all it needs to evaluate
FERC’s conduct.

     Niskanen also complains that portions of the redacted
lists FERC produced following the district court’s order are
                               9
illegible. At oral argument, FERC agreed to cooperate with
Niskanen to correct these defects. If FERC fails to do so or if
Niskanen believes the redacted lists otherwise depart from the
district court’s order, it may seek appropriate relief from that
court.

                              III.
     Niskanen identifies a weighty public interest in
understanding FERC’s compliance with its notice obligations,
but it articulates no reason it needs the full names and
addresses of landowners along a pipeline route to do so. The
district court rightly found that more limited disclosure best
balanced landowners’ privacy and the public interest. We
affirm.

                                                    So ordered.
RANDOLPH, Senior Circuit Judge, concurring,

     In June 2020 the Supreme Court decided a permit dispute
in favor of the Atlantic Coast Pipeline, LLC. U.S. Forest Serv.
v. Cowpasture River Pres. Ass’n, 

, 

(2020). A few weeks later, the pipeline owners canceled their
project.1

     The owners explained that a “series of legal challenges to
the project’s federal and state permits has caused significant
project cost increases and timing delays.” Press Release,
Dominion Energy & Duke Energy Cancel the Atlantic Coast
Pipeline, DUKE ENERGY (July 5, 2020). They added that their
decision “reflects the increasing legal uncertainty that overhangs
large-scale energy and industrial infrastructure development in
the United States.”

     The majority opinion acknowledges the pipeline’s demise
but then says nothing more about it. My view is that the
pipeline’s cancellation has a significant impact on the Freedom
of Information Act issue in this case.

     Proposed in 2014, the pipeline was to be 604 miles long,
“extending from West Virginia to North Carolina.”
Cowpasture, 590 U.S. at ___, 

. In order to
notify the many thousands of affected landowners along the
route, Atlantic Coast Pipeline compiled a list of their names and
addresses. The company delivered a copy to the Federal Energy
Regulatory Commission during the early stages of the
certification proceedings.

    Exemption 6 of the Freedom of Information Act does not


    1
     A subsidiary of Dominion Resources, LLC owns 48 percent of
the Atlantic Coast Pipeline; one subsidiary of Duke Energy
Corporation owns 40 percent; another subsidiary of Duke Energy
owns 7 percent. Atl. Coast Pipeline, LLC, 

 (2017).
                                  2

require a federal agency to disclose an individual’s name and
address if doing so “would constitute a clearly unwarranted
invasion of personal privacy.” 

(b)(6). As the
majority opinion explains, FERC therefore would be obliged2 to
withhold the list from the Niskanen Center3 if the landowners’
privacy interests outweigh the public interest in disclosing the
landowners’ full names and addresses.4 Maj. Op. 5.

     The potential “privacy” involved here may be described as
the landowners’ “mental repose” and perhaps their “physical
solitude.” See Hyman Gross, The Concept of Privacy, 42
N.Y.U. L. REV. 34, 39 (1967).5 That at least is how the district
viewed the matter. The court thought that the affected
landowners’ privacy interest was “in not divulging that a

    2
       The Privacy Act, 5 U.S.C. § 552a(b)(2), bars agencies from
disclosing information about private individuals if FOIA does not
require disclosure.
    3
      The majority opinion states as fact that “Niskanen Center . . .
represents landowners affected by pipeline construction.” Maj. Op. 3.
Niskanen so claimed in its Supreme Court amicus brief in the
Cowpasture case. Brief of Amicus Curiae Niskanen Center in Support
of Respondents at 1, Cowpasture, 

, 

 (No.
18-1584). Its claim may have been strictly true but misleading. Of the
many thousands of landowners along the 604-mile route of the
proposed pipeline, Niskanen’s lawyers represented one married couple
who intervened in Atlantic Coast Pipeline, LLC v. FERC (D.C. Cir.
Nov. 19, 2018) (No. 18-1224), currently in abeyance.
    4
      In compliance with the district court’s conditional grant of
summary judgment, FERC published the landowners’ initials, street
names, and states of residency (but not their full names, house
numbers, or towns).
    5
     These were also the aspects of privacy at stake in the Exemption
6 names-and-addresses cases the majority opinion cites. Maj. Op. 6-7.
                                   3

natural-gas pipeline crosses their property . . . to avoid potential
protests on their land.” Niskanen Ctr. v. FERC, 

, 214 (D.D.C. 2020). But this prospect is no longer a
concern now that the pipeline owners have canceled the project.6

     Even so, another privacy interest remains at stake. Many
organizations were interested in the Atlantic Coast Pipeline.7
Local, regional and national organizations opposing the pipeline
would naturally take at least some credit for its cancellation.8 In
light of the pipeline owners’ explanation, they would have a


     6
       In Bonner v. United States Department of State, 

(D.C. Cir. 1991), the court recognized that there are some FOIA cases
in which it is “appropriate for a court to review the agency decision in
light of post-decision changes in circumstances.” 

 at 1153 n.10.
This is such a case.
     7
       An Appendix to FERC’s final environmental impact statement
for the Atlantic Coast Pipeline contains a distribution list of
“Miscellaneous Individuals, Organizations, and Landowners.” See
OFF. OF ENERGY PROJECTS, FED. ENERGY REGUL. COMM’N, ATLANTIC
COAST PIPELINE & SUPPLY HEADER PROJECT FINAL ENVIRONMENTAL
IMPACT STATEMENT, vol. II, at A-33 (2017). The list contains some
7,000 entries, giving the name, town and state of the person or
organization. Many of the organizations so listed were opposed to the
pipeline. Some — including the Niskanen Center — filed amicus
briefs in the Supreme Court Cowpasture case.
     8
        Many organizations did just that upon the pipeline’s
cancellation. E.g., ABRA Update #283, DING, DONG, THE ACP!,
ALLEGHENY-BLUE RIDGE ALL. (July 10, 2020); Press Release, SELC’s
Pipeline Team Reflects on the Path to Victory, S. ENV’T LAW CTR.
(July 9, 2020); Press Release, BREAKING: Atlantic Coast Pipeline
Cancelled, SIERRA CLUB (July 5, 2020); CANCELLED: Atlantic Coast
Pipeline, APPALACHIAN VOICES, https://appvoices.org/fracking/atlant
ic-coast-pipeline/ [https://perma.cc/GEE3-MUSN] (last visited Dec.
15, 2021).
                                   4

point.

     Those organizations touting their “good work” would have
every incentive to use the landowner lists to solicit donations, by
mail, by telephone or in person. In the face of comparable
potential uses, the Supreme Court determined that individuals
“have some nontrivial privacy interest in nondisclosure” of their
home addresses. U.S. Dep’t of Def. v. FLRA, 

(1994).9 The Court also held that the individuals’ privacy
interest in their home addresses “does not dissolve simply
because that information may be available to the public in some
form,” 

, as the landowners’ names and addresses
certainly were.10

     As to a countervailing public interest from organizations
using the landowners’ list in this manner, there is none.
Fundraising by private organizations is not a public interest
under Exemption 6. It is not a public interest because this
activity reveals nothing about FERC’s performance of its
responsibilities. See Bibles v. Oregon Nat. Desert Ass’n, 

 (1997) (per curiam).

     The only remaining plausible “public interest” is the one the

     9
       The majority opinion, relying on circuit precedent, states that in
an Exemption 6 case the court must first determine whether disclosure
would compromise a substantial privacy interest and only then
evaluate the public interest in disclosure. Maj. Op. 5. I do not believe
this decisional sequence is a hard and fast rule. The Supreme Court
in Department of Defense, 

, began its analysis with an
assessment of the public interest and only then turned to an evaluation
of the privacy interest, 

.
     10
      FERC’s regulations required the pipeline to assemble its list of
landowners from public tax records. 

(d)(2),
157.21(f)(3).
                                5

Niskanen Center has identified — comparing the pipeline’s list
with the public record of landowners who should have been
notified of the impending pipeline project. On this subject I
agree with the majority opinion’s analysis.

     For the reasons mentioned above and in the majority
opinion, I agree that the judgment of the district court should be
affirmed.