Fair Shake Environmental Legal Services Pittsburgh 3495 Butler Street, Sui (412) 742-4615 (412) 291-1187 (fax) Anew climate of fairness. January 17,2017 ‘Sent by Certified U.S. Mail Max Minzner, General Counsel, Federal Energy Regulatory Commission 888 First Street, NE Washington, D.C. 20426 Ce: by U.S. Mail Charles A. Beamon, Associate General Counsel Re: Freedom of Information Act Appeal FOIA No. FY16-92 FERC Docket No, CP15-93-00 Dear Mr. Minzner, 1 Background Pursuant to the Federal Freedom of Information Act, 5 U.S.C.A. § 552, FreshWater Accountability Project (*F WAP”), by and through the undersigned counsel, hereby appeals from a determination to withhold requested and identified documents and materials, described more fully below, under Freedom of Information Act (“FOIA”) Exemption 4. On or about September 14, 2016 Leatra Harper, on behalf of FreshWater Accountability Project, submitted a request to the Federal Energy Regulatory Commission (“FERC”) under FOIA for “Electronic records of the most recent downloadable shape files submitted by Energy Transfer for FERC review of the Rover project through Ohio (Docket No. CP15-93-00).” A copy of the Request is attached hereto as Exhibit 1. On September 22, 2016 Director Tao sent Energy Transfer Partners (‘ETP") a “Submitter’s Rights Letter” notifying them of FWAP's request, giving ETP an opportunity to comment on the request. FERC ultimately identified two hundred and two (202) documents responsive to FWAP's request. On October 25, 2016 Director Tao issued a determination denying FWAP’s record request in its entirety because all identified documents were deemed confidential pursuant to FOIA Exemption 4. The Determination Letter is attached hereto as Exhibit 2.UL. _ FOIA Appeal Pursuant to Federal Regulatory Authority 18 CF.R. § 388.110(a). . A, Authority and Jurisdiction Federal regulations provide “ [a] person whose request for records...is denied in whole or in part ... may appeal the determination to the General Counsel or the General Counsel’s designee within 90 days of the determination.” 18 C.F.R. § 388.110(a)(1). This appeal from the above-referenced denial is being filed within the 90-day time frame. B. The Agency Did Not Meet Its Burden of Showing that the Materials and Documents fall Under Exemption 4. ‘The information in question was provided to FERC “to assist with the Agency’s evaluation of the proposed project.” Exhibit 2, at p. 2. However, the Director withheld all 202 documents under FOIA Exemption 4, claiming that the information was confidential because ETP had not publicly disclosed the files and it is not the Agency’s practice to disclose the information. Jd, FOIA Exemption 4 applies to “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” 5 U.S.C.A. § 552(b)(4). FOIA mandates a strong presumption in favor of disclosure, and exemptions are to be narrowly construed. Cuneo v. Schlesinger, 484 F.2d 1086, 1091 (D.C. Cir. 1973). Because FERC is the agency with access to the information, the agency bears the burden of justifying its withholdings. Asan initial matter, the Director did not undergo the proper analysis in applying the exemption. It is not the Agency’s practice that is relevant but whether the information “would customarily not be released to the public by the person from whom it was obtained.” Nat'l Parks & Conservation Ass'n v. Morton, 498 F.2d 765, 766 (D.C. Cit. 1974), citing S.Rep.No. 813, 89th Cong., Ist Sess. 9 (1965)(Emphasis added). There was no explanation a to Whether ETP would customarily release the identified documents. Moreover, prior to FWAP’s document request, ETP apparently had not marked or identified the documents as. privileged or confidential. Submitting documents to a public agency subject to FOIA without identifying them as privileged or confidential is essentially releasing them to the public. Moreover, it is difficult to believe that all geospatial and geographic data contained in shape files wouldn’t be released to the public in some form during any one of the many permitting processes ETP is required to go through for its proposed pipeline. In addition, whether the information is customarily disclosed to the public is not the only inquiry to make under Exemption 4. The non-disclosure must also be “justified by the legislative purpose which underlies the exemption.” Nat’! Parks, 498 F.2d. at 767. A major purpose underlying Exemption 4 is that public disclosure would impair the ability of the Government to obtain the information in the future. /d. at 770. Ultimately, information should not be withheld if the information is supplied pursuant to statute. /d.; see also Critical Mass Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 873 (D.C. Cir. 1992).‘Thus, presumably because the information was provided pursuant to FERC’s statutory authority, the information should have been disclosed. Finally, in addition to showing that exemptions apply, an agency subject to FOIA must disclose reasonably non-exempt information after redaction or deletion of exempt information. Sanders v. Obama, 729 F. Supp. 2d 148, 154 (D.D.C. 2010). Here, FERC failed to reasonably segregate non-exempt portions of the identified documents. The Director simply withheld all 202 documents without any explanation as to whether any information or documents could be segregated I. Conclusion For all of the foregoing reasons FWAP respectfully requests that FERC’s decision to withhold the 202 identified documents under FOIA exemption 4 be reversed, and the information identified be promptly provided. Respectfully Submitted, A Ue Yst Cs sq. {yskamp(@Fairshake-els.org Megan Hunter, Esq. mhunter@fairshake-els.org Fair Shake Environmental Legal Services 159 S, Main St. Suite 1030 Akron, OH 44308 (234) 571-1972 Attorneys for FreshWater Accountability Projectwewantcleanwater@gmail.com - Electronic FOIA Request Form FOIA-2016-92 Webform@ferc.gov Accepted: September 16, 2016 Wed 9/14/2016 1:34 PM Track 1 Due Date: October 17, 2016 ‘Sterling Poteat «Sterling Poteat @ferc gov>; FOIA-CEIl : Tie: Ms First Name: Leatra Last Name: Harper Organization: FreshWater Accountability Project Street Address: PO Box 473 ‘Street Address2: (Cy. Grand Rapids State: OH “Zip Code: 43522 ‘Country: United States Phone: 4194507042 Fac 4194507042 mall wewantcleanwater@gmailcom Request Type: FOIA ‘Your Request: Receive the material in electronic form (f possible) Reasonably describe the records you are seeking: Electronic records of most recent downloadable shape files submitted by Energy Transfer for FERC review of the Rover project through Ohio (Docket No, CP1S-93-00), Please provide in electronic format on CO, lash crve, or with cloud Intake Method: Web Requested Delivery Method: Electronic Copy Reason for Expedited: Submitter Expedited Justification: | certy thatthe above statements) conceming expediting processing are true and correct to the best of my knowledge and belie: No Payment of Foes: Request Fee Weiver| Fee Walver Justification Information wil be provided to the public and sin the publc interest, Freshiater Accountability Project has no commercial interest in obtaining these fs. Date Received: 09-14-2016 013418 PM EDTFederal Energy Regulatory Commission ‘Washington, D.C. 20426 OCT 25 2016 Re: FOIA No. FY16-92 Response Letter VIA E-MAIL AND REGULAR MAIL Ms. Leatra Harper Attorney Fresh Water Accountability Project P.O.’Box 473 Grand Rapids, OH 43522 wewantcleanwater@gmai Dear Ms. Harper: This is a response to your correspondence received on September 16, 2016, in which you requested information pursuant to the Freedom of Information Act (FOIA)', and the Federal Energy Regulatory Commission’s (Commission) FOIA regulations, 18 CER. § 388.108 (2016). Specifically, you requested a copy of the shape files submitted by Energy Transfer Partners, L.P. (ETP) for the Rover Pipeline, FERC Docket No. CP1S- 93-00. ‘A search of the Commission's files identified two hundred and two (202) documents that may be responsive to your request. The documents were submitted to the Commission by ETP, on behalf of Rover Pipeline, LLC. In response to notice provided in accordance with 18 C.P.R. § 388.112(d), ETP objected to the public release of the documents because they are confidential and were voluntarily submitted to the Commission. As explained below, the documents are protected from disclosure pursuant to FOIA Exemption 4 and will not be released.? FOIA Exemption 4 protects from disclosure “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.” See National Parks & Conservation Ass'n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974) (National Parks). Information submitted voluntarily is confidential if it is a type that is, *5 U.S.C. § 552, as amended by the FOIA Improvement Act of 2016, Pub. L. No. 114-185, 130 Stat. 538 (2016). 7 5U.S.C. § 552(b)(4).not customarily released to the public. For information not submitted voluntarily, the test for confidentiality is as follows: “To summarize, commercial or financial matter is ‘confidential’ for purposes of the exemption if disclosure of the information is likely to have either of the following effects: (1) to impair the Government's ability to obtain necessary information in the future; or (2) to cause substantial harm to the competitive position of the person from whom the information was obtained.” Jd, “Where information is confidential and voluntarily supplied to the government, the supplying party need only establish that this information would not customarily be released to the public.” Critical Mass Energy Project v. Nuclear Regulatory Commission, 975 F.2d 871, 879 (D.C. Cir, 1992). ETP voluntarily submitted these confidential shapefiles to Commission staff to assist with the Agency's evaluation of a proposed project. To the Agency's knowledge, ETP has not publicly disclosed these shapefiles and it is not the Agency’s practice to disclose such information. Releasing such information could also hinder the Agency’s ability to obtain such information in the future. Accordingly, the requested material is being withheld under FOIA Exemption 4. ‘As provided by the FOIA and 18 C.F.R. §388.110(a)(1) of the Commission’s regulations, any appeal from this determination must be filed within 90 days of the date of this letter. The appeal must be in writing, addressed to Max Minzner, General Counsel, Federal Energy Regulatory Commission, 888 First Street, NE, Washington, D.C. 20426, and clearly marked “Freedom of Information Act Appeal.” Please include a ‘copy to Charles A. Beamon, Associate General Counsel, General and Administrative Law, at the same address. You also have the right to seek dispute resolution services from the FOIA Public Liaison of the agency or the Office of Government Information Services (OGIS). Using OGIS services does not affect your right to pursue your appeal. You may contact OGIS by mail at Office of Government Information Services, National Archives and Records Administration, Room 2510, 8601 Adelphi Road, College Park, MD 20740-6001; email at ogis@nara.gov; telephone at 301-837-1996; facsimile at 301-837-0348; or toll-free at 1-877-684-6448, Sincerely, lel T. [yao Leonard M. Tao Director Office of External Affairs