Cause of Action v. Federal Trade Commission , 961 F. Supp. 2d 142 ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________
)
CAUSE OF ACTION, )
)
Plaintiff, )
)
v. ) Civ. Action No. 1:12-cv-00850-EGS
)
FEDERAL TRADE COMMISSION, )
)
Defendant. )
________________________________ )
MEMORANDUM OPINION
Cause of Action (“COA” or “plaintiff”) brings this case
regarding three requests it made to Defendant, Federal Trade
Commission (“FTC”), under the Freedom of Information Act (“FOIA”).
Plaintiff claims that the Defendant improperly denied Plaintiff’s
fee waiver requests because the disclosure of information it
requested is in the public interest or because COA is a
representative of the news media. Plaintiff also argues that the
agency improperly withheld certain documents under FOIA’s Exemption
5.1. Pending before the Court is Defendant’s motion for summary
judgment.
Upon consideration of the motion, Plaintiff’s response,
Defendant’s reply, the applicable law, and the entire record, and
1
The FTC also withheld certain documents under FOIA’s Exemption 6,
which Plaintiff concedes were properly withheld. Pl.’s Opp’n to
Mot. for Summ. J. (“Pl.’s Opp’n”) at n.20.
1
for the reasons set forth below, Defendant’s motion for summary
judgment is GRANTED with respect to the denial of fee waivers. With
respect to the withholding of documents pursuant to Exemption 5,
Defendant’s motion for summary judgment is GRANTED IN PART AND
DENIED IN PART.
I. BACKGROUND
Plaintiff is a nonpartisan, nonprofit organization that “uses
public advocacy and legal reform strategies to ensure greater
transparency in government and protect taxpayer interests and
economic freedom.” Complaint (“Compl.”) ¶ 5. The FTC publishes
“Guides Concerning the Use of Endorsements and Testimonials in
Advertising” (“Guides”). In 2009 the FTC published revisions to the
Guides, to include social media and bloggers. Compl. ¶ 9.
Following the revisions, the Plaintiff initiated three FOIA requests
in 2011 and 2012. Id. ¶¶ 12, 25, 47. Plaintiff was interested in
using the requested information to inform the public how the Guides’
revisions would impact bloggers and social media authors, and
consequently affect First Amendment rights to speech. Id. ¶ 11.
A. FOIA Request #1 (FOIA-2011-01431)
On August 30, 2011, Plaintiff submitted its first FOIA request
to the FTC, assigned FOIA Request No. 2011-01431. Complaint Exhibit
(“Compl. Ex.”) 1, 2. The request sought (1) all records relating to
the drafting, formulation, and revision of the Guides; (2) all
records concerning the results of investigations into conduct by
2
bloggers or social media authors that allegedly violated the Guides;
(3) all records concerning the results of investigations into
conduct by companies that related to alleged violations of the
Guides; and (4) copies of any other requests for information made by
outside groups through FOIA during the last two years regarding
revisions to the Guides. Compl. Ex. 1. Plaintiff stated that the
information requested is in the public interest, and accordingly
requested a complete waiver of search and duplication fees. Id.
On September 22, 2011, the FTC denied Plaintiff’s request for a
public interest fee waiver. Compl. Ex. 2. On September 26, 2011,
Plaintiff asked again for a public interest fee waiver and added a
request for a “representative of the news media” fee waiver. Compl.
Ex. 3. On October 7, 2011, the FTC denied both fee waiver requests.
Compl. Ex. 4. In the denial, the FTC designated Plaintiff as an
“Other (General Public)” requestor, which is only entitled to 100
pages of records free of charge in accordance with 16 C.F.R. §
4.8(b)(6). Id. The FTC released 100 pages of records to plaintiff
at that time. Id.On October 28, 2011, Plaintiff administratively appealed the
FTC’s denial of its public interest fee waiver. Compl. Ex. 5. On
November 29, 2011, the FTC affirmed its denial of Plaintiff’s
request for a public interest fee waiver for this first FOIA
request, informing Plaintiff of its ability to appeal the FTC’s
decision in district court. Compl. Ex. 6.
3
On December 12, 2011, Plaintiff requested that the FTC
reconsider its denial of Plaintiff’s appeal, reiterating its
qualification for a public interest fee waiver for its first
request. Compl. Ex. 9. On December 20, 2011, the FTC denied
Plaintiff’s appeal. Compl. Ex. 10.
On January 27, 2012, Plaintiff again requested that the FTC
reconsider the denial of a public interest fee waiver for the first
request and reiterated its qualification for a “representative of
the news media” fee waiver. Compl. Ex. 12. On February 27, 2012,
the FTC once again denied Plaintiff’s request for both fee waivers.
Compl. Ex. 13.
B. FOIA Request #2 (FOIA-2012-00227)
In response to the FTC’s October 7, 2011 denial of its fee
waiver request for its first FOIA request, Plaintiff made its second
FOIA request on October 28, 2011, assigned FOIA Request No. 2012-
00227. Compl. Ex. 5, 7. Plaintiff asked for (1) all FOIA requests
where the FTC granted fee waivers under the public interest
exception since January 1, 2009 and (2) documents referring or
relating to the process in which the FTC determined the FOIA
requests identified in (1) were within the fee waiver exception.
Id. Plaintiff later requested a public interest fee waiver and
“representative of the news media” fee waiver for this request on
December 12, 2011. Compl. Ex. 8.
4
On January 6, 2012, the FTC denied Plaintiff both a public
interest fee waiver and a “representative of the news media” fee
waiver. Compl. Ex. 11. For purposes of determining fees associated
with fulfilling plaintiff’s FOIA request, the FTC once again
designated Plaintiff as an “Other (General Public)” requester and
therefore entitled to 100 pages out of 156 relevant pages free of
charge, pursuant to 16 C.F.R. § 4.8(b)(6). Compl. Ex. 11;
Defendant’s Motion for Summary Judgment Exhibit (“Def.’s Mot. Summ.
J. Ex.”) T; Declaration of Nathaniel Fairbanks Gray (“Gray Decl.”)
¶¶ 20-22. The FTC withheld eight documents consisting of twelve
pages under Exemption 5. Def.’s Mot. Summ. J. Ex. T.
On January 27, 2012, Plaintiff appealed the FTC’s denial of
both its public interest fee waiver request for its second request
and denial of its “representative of the news media” fee waiver
request. Compl. Ex. 12. On February 27, 2012, the FTC affirmed its
denial of both the public interest fee waiver request and the
“representative of the news media” fee waiver request. Compl. Ex.
13. COA did not appeal the agency’s withholding of documents
pursuant to Exemption 5, and the agency did not address this issue
in its letter denying the appeal. Compl. Exs. 12-13.
B. FOIA Request #3 (FOIA-2012-00687)
On January 27, 2012, Plaintiff made its third FOIA request,
assigned FOIA Request No. 2012-00687. Compl. Ex. 12, 14. Plaintiff
requested (1) all records relating to the drafting, formulation, and
5
revision of the Guides Concerning Use of Endorsements and
Testimonials in Advertising concerning social media authors and
bloggers between January 1, 2009 and November 6, 2011; (2) all
documents, including e-mail communications, referring or relating to
FTC orders, decisions, memoranda, interpretations, instructions,
statements of policy, or guidelines to staff for the purposes of
evaluating fee waiver requests under the public interest exception;
and (3) all documents, including e-mail communications, referring to
or relating to the process the FTC used to deny Plaintiff a fee
waiver. Compl. Ex. 12.
On March 19, 2012, the FTC informed COA that it had located
ninety-five pages of information responsive to the request. Compl.
Ex. 14; Declaration of Dione Jackson Stearns (“Stearns Decl.”) ¶ 18;
Gray Decl. at ¶¶ 24, 26. The FTC released free of charge seventy-
nine pages relating to the second and third parts of the request,
and withheld five documents consisting of sixteen pages under
Exemption 5. Compl. Ex. 14; Def.’s Mot. Summ. J. Ex. T. Documents
9 and 10, consisting of one page each, are screenshots of
Plaintiff’s website which were taken by a paralegal under the
direction of his supervising attorney and withheld under Exemption
5’s deliberative process privilege and attorney work-product
privilege. Id. Document 11, consisting of four pages, Document 12,
consisting of four pages, and Document 13, consisting of six pages,
are memoranda written by a paralegal to a superior and were also
6
withheld under Exemption 5’s deliberative process and attorney work-
product privileges. Id. The FTC did not determine whether
Plaintiff was entitled to a public interest fee waiver or a
“representative of the news media” fee waiver for this FOIA request,
explaining that it had only located ninety-five pages of responsive
information, which COA was entitled to receive free of charge under
16 C.F.R. § 4.8(b)(6) even without a fee waiver. Compl. Ex. 14.
On April 4, 2012, Plaintiff appealed the withholding and
asserted its entitlement to both a public interest fee waiver and a
“representative of the news media” fee waiver. Compl. Ex. 15. On
May 7, 2012, the FTC affirmed its withholding and declared the fee
waiver issue moot. Compl. Ex. 16.
Plaintiff then initiated this suit on May 25, 2012. The FTC
moved for summary judgment. The motion is ripe for resolution by
the Court.
II. STANDARD OF REVIEW
Summary judgment is granted when there is no genuine issue of
material fact and the movant is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,
325 (1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991 (D.C.
Cir. 2002). In determining whether a genuine issue of fact exists,
the court must view all facts in the light most favorable to the
non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). Under FOIA, all underlying facts
7
and inferences are analyzed in the light most favorable to the FOIA
requester; as such, only after an agency proves that it has fully
discharged its FOIA obligations is summary judgment appropriate.
Moore v. Aspin, 916 F. Supp. 32, 35 (D.D.C. 1996) (citing Weisberg
v. U.S. Dep't of Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983)).
FOIA cases are typically and appropriately decided on motions for
summary judgment. Gold Anti-Trust Action Comm., Inc. v. Bd. of
Governors of Fed. Reserve Sys., 762 F. Supp. 2d 123, 130 (D.D.C.
2011) (citations omitted).
In reviewing a motion for summary judgment under the FOIA, the
court must conduct a de novo review of the record. See 5 U.S.C. §
552(a)(4)(B) (2012). The court may award summary judgment solely on
the basis of information provided by the department or agency in
affidavits or declarations that describe “the documents and the
justifications for nondisclosure with reasonably specific detail,
demonstrate that the information withheld logically falls within the
claimed exemption, and are not controverted by either contrary
evidence in the record nor by evidence of agency bad faith.”
Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981);
see also Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973),
cert. denied, 415 U.S. 977 (1974). Agency affidavits or declarations
must be “relatively detailed and non-conclusory.” SafeCard Services
v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991). Such affidavits or
declarations are accorded “a presumption of good faith, which cannot
8
be rebutted by purely speculative claims about the existence and
discoverability of other documents.” Id. (internal citation and
quotation omitted). An agency has the burden of demonstrating that
“each document that falls within the class requested either has been
produced, is unidentifiable, or is wholly [or partially] exempt from
the Act's inspection requirements.” Goland v. CIA, 607 F.2d 339, 352
(D.C. Cir. 1978) (internal citation and quotation omitted).
III. ANALYSIS
The issues before this Court are (1) whether the FTC properly
determined Plaintiff’s qualification for public interest fee waivers
and “representative of the news media” fee waivers for all three of
Plaintiff’s FOIA requests and (2) whether the FTC properly withheld
documents under Exemption 5 for Plaintiff’s second and third FOIA
requests. The Court will address them in turn.
A. FEE WAIVERS
The disputes regarding COA’s fee waivers fall into three
categories. First, COA argues that the FTC improperly denied
Plaintiff a public interest fee waiver for its first and second FOIA
requests. Second, COA claims the FTC improperly denied Plaintiff a
“representative of the news media” fee waiver for the same requests.
Finally, COA argues that the FTC improperly declared the fee waiver
issue moot for Plaintiff’s third FOIA request.
For the reasons that follow, the Court finds that the FTC was
justified in denying Plaintiff a fee waiver for its first and second
9
FOIA requests. Finally, the Court finds that the FTC properly
declared the fee waiver issue moot for Plaintiff’s third request.
1. Public Interest Fee Waiver
Fee waivers are granted if the requested information is “in the
public interest because it is likely to contribute significantly to
public understanding of the operations or activities of government
and is not primarily in the commercial interest of the requestor.” 5
U.S.C. § 552(a)(4)(A)(iii) (2012).
The first prong of the test requires the requested information
be in the public interest. The FTC has promulgated a regulation
setting out four requirements a party making a FOIA request must
meet to satisfy this standard. 16 C.F.R. § 4.8(e)(2). First,
requestors must demonstrate that the information they seek concerns
the operations or activities of government. Second, they must
demonstrate that the disclosure is likely to contribute to an
understanding of the operations or activities of government. Third,
they must show that the disclosure will contribute to an
understanding of the subject by the public at large. Fourth, they
must demonstrate that the information will contribute significantly
to such understanding. Id.; see also Judicial Watch, Inc. v. U.S.
Dept. of Justice, 365 F.3d 1108, 1126 (D.C. Cir. 2004); Judicial
Watch, Inc. v. Rossotti, 326 F.3d 1309, 1312 (D.C. Cir. 2003). All
four requirements must be met in order to demonstrate that the
request is in the public interest. Id.10
The second prong requires that the requested information not be
in the requestor’s commercial interest. First, the court must
evaluate whether the requestor has a commercial interest that would
be furthered by the information’s disclosure. Second, the court
must evaluate whether any identified commercial interest is
sufficiently large in comparison with the public interest in
disclosure, thus rendering any disclosure primarily in the
commercial interest of the requestor. 5 U.S.C. § 552(a)(4)(A)(iii);
see also 16 C.F.R. § 4.8(e)(2); Fed. CURE v. Lappin, 602 F. Supp. 2d
197, 201 (D.D.C. 2009).
Courts are to keep in mind that Congress amended FOIA to ensure
that it be “liberally construed in favor of waivers for
noncommercial requestors.” McClellan Ecological Seepage Situation
v. Carlucci, 835 F.2d 1282, 1284 (9th Cir. 1987) (citation omitted).
Fee waiver requests, however, should still be made with “reasonable
specificity,” Larson v. CIA, 843 F.2d 1481, 1483 (D.C. Cir. 1988)
(citing McClellan, 835 F.2d at 1285), and be based on more than
“conclusory allegations,” Nat’l Treasury Employees Union v. Griffin,
811 F.2d 644, 647 (D.C. Cir. 1987). The court shall review the
FTC’s fee waiver determinations de novo and its review “shall be
limited to the record before the agency.” 5 U.S.C. §
552(a)(4)(A)(vii). The requester has the burden of proving that its
request satisfies the public interest standard for fee waivers.
Larson, 843 F.2d at 1483.
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a. Request #1 (FOIA-2011-01431)
Plaintiff is not entitled to a public interest fee waiver for
its first request because it does not satisfy the “public interest”
prong of the test.2 Plaintiff fails the “public interest” prong of
the test because the third element is not satisfied, even if the
first, second, and fourth elements are satisfied.
2
Plaintiff does not demonstrate any commercial interests in this
request. However, Plaintiff’s reasoning for satisfying the
“commercial interest” prong of the test is flawed. Plaintiff argues
that the information is not for commercial purposes since it is a
nonprofit. Plaintiff’s Opposition to Defendant’s Motion for Summary
Judgment (“Pl.’s Opp’n”) 26. The FTC, citing Forest Guardians v.
U.S. Dep’t of Interior, 416 F.3d 1173, 1177-78 (10th Cir. 2005),
responds that Plaintiff’s nonprofit status does not automatically
demonstrate its noncommercial interests in the request. Defendant’s
Reply in Support of its Motion for Summary Judgment (“Def.’s Reply”)
3.
The Court agrees with the FTC that Plaintiff’s nonprofit status
does not automatically demonstrate Plaintiff has no commercial
interests in the request. See Consumers' Checkbook, Ctr. for Study
of Servs. v. U.S. Dep’t of Health & Human Servs., 502 F. Supp. 2d
79, 89 (D.D.C. 2007) (hereinafter Consumers’ Checkbook) (holding
that the nonprofit requestor still had a commercial interest in the
requested information since it would disseminate the information for
a fee), rev'd on other grounds, 554 F.3d 1046 (D.C. Cir. 2009).
Nevertheless, the Court still finds that Plaintiff has
sufficiently demonstrated its noncommercial interests in its
request. A nonprofit will not have any commercial interests if its
primary interest in the information is to distribute it to the
public. See Consumers’ Checkbook, 502 F. Supp. 2d at 89. Here,
Plaintiff indicated that its interest in the information is to use
it to perform government oversight functions. Pl.’s Opp’n at 26.
Plaintiff has indicated that it is interested in using the
information to inform the public about the Guides’ effects on First
Amendment rights to freedom of speech. Compl. Ex. 5. As a result,
Plaintiff has demonstrated it has no commercial interests in its
first request.
12
The Court finds the first element is satisfied because the
requested information involves the operations or activities of
government. The information involves the operations and activities
of government because it would provide insight into the FTC’s
decision-making process regarding the enforcement of the Guides; it
concerns government investigations; and it involves communications
between the government and other outside agencies. Other courts in
this Circuit have found similar information to involve the
operations or activities of government. See Ctr. for Medicare
Advocacy v. U.S. Dep’t of Health & Human Servs., 577 F. Supp. 2d
221, 240-41 (D.D.C. 2008) (finding documents illustrating the
decision-making process used by agencies to create a new hearings
system involved the operations and activities of government);
Judicial Watch, Inc. v. U.S. Dep't of Transportation, No. 02-566,
2005 U.S. Dist. LEXIS 14025, at *11-12 (D.D.C. July 8, 2005)
(finding information regarding communications between a FAA Deputy
Administrator and technology companies concerned the operations or
activities of government).
Plaintiff also met its burden under the second element since
the information is likely to contribute to public understanding.
The information will likely contribute to public understanding
because it could inform social media authors and bloggers about the
Guides’ effects on their activities. See Rossotti, 326 F.3d at
1313-14 (finding that information would likely contribute to public
13
understanding as long as there is a potential for public
understanding). Plaintiff has also indicated that the information
on the FTC’s Guides would inform the public about how government
action impacts First Amendment rights. Compare Prison Legal News v.
Lappin, 436 F. Supp. 2d 17, 26 (D.D.C. 2006) (finding the requested
information satisfied the second element because it would provide
insight into how well the government managed prisons) with Judicial
Watch, Inc. v. U.S. Dep’t of Justice, 122 F. Supp. 2d 13, 18 (D.D.C.
2000) (hereinafter Judicial Watch I) (finding the requestor could
not satisfy this element without demonstrating how the requested
information will inform the public about government activities or
operations).
The fourth element is also satisfied since plaintiff has shown
the information will contribute significantly to public
understanding. The FTC argues that the requested information would
not significantly contribute to public understanding because the FTC
has already published synthesized information on the Guides’
enforcement online in a “What People Are Asking” document. See
Def.’s Mot. Summ. J. at 11; Def.’s Reply at 8. The FTC also argues
that it has published an article online regarding staff commentaries
and closing letters on investigations into violations of the Guides.
Id. Plaintiff, however, argues that not all information about the
drafting of the Guides and about all relevant FTC investigations on
possible violations of the Guides is publicly available. Pl.’s
14
Opp’n at 30. Furthermore, Plaintiff argues that the “What People
are Asking” document is not sufficient to contribute to public
understanding because the document is only an eight-page summary
produced by the FTC that only vaguely illustrates how the agency
enforces the Guides. Id.The Court agrees with Plaintiff on this issue. To show that
information will contribute significantly to public understanding,
Plaintiff must demonstrate that the requested information has not
met a threshold level of public availability. See Campbell v. U.S.
Dep’t of Justice, 164 F.3d 20, 36 (D.C. Cir. 1998). When the
requested information is not publicly available, it will more likely
contribute significantly to public understanding. See Fed. CURE,
602 F. Supp. 2d at 205-06. However, even if some of the requested
information is publicly available in synthesized form, there exists
some significant benefit to public understanding if the plaintiff
requests raw information from the agency to synthesize it and
perform a public oversight function. See Consumers' Checkbook, 502
F. Supp. 2d at 87-88. Nevertheless, the primary beneficiary of the
disclosure should still be the public. Nat'l Treasury Employees
Union, 811 F.2d at 647-48; Monroe-Bey v. FBI, 890 F. Supp. 2d 92, 98
(D.D.C. 2012); Van Fripp v. Parks, No. 97-0159, 2000 U.S. Dist.
LEXIS 20158, at *22. (D.D.C. Mar. 16, 2000).
Because Plaintiff claims not all information about the Guides’
drafting and about specific FTC investigations is in the public
15
domain, the requested information would contribute to public
understanding. Even if some synthesized information regarding the
Guides’ enforcement and investigations is available online, there
may be some public benefit to Plaintiff receiving all relevant raw
information from the FTC regarding the enforcement and
investigations into the Guides to do an independent analysis and
synthesis of the information.
Nevertheless, Plaintiff did not satisfy the third element of
the public interest test because it has not demonstrated that the
requested information would increase understanding of the public at
large. 16 C.F.R. § 4.8(e)(2)(i)(C). Accordingly, the Court finds
that Plaintiff has not met the public interest prong of the public
interest fee waiver test.
To show the requested information would increase understanding
of the public at large, Plaintiff must demonstrate “in detailed and
non-conclusory terms,” that it has the intent and ability to
effectively convey the information to a broad segment of the public
and therefore, the FTC, as surrogate for the public, should foot the
bill for a fee waiver. See Rossotti, 326 F.3d at 1312; Judicial
Watch I, 122 F. Supp. 2d at 18. Although requestors are not
required to explain their dissemination plan with “pointless
specificity” to satisfy this element, they must identify several
methods of disseminating the information and provide some concrete
basis upon which the agency can conclude that those methods are
16
adequate to convey the requested information to a wide audience. See
Rossotti, 326 F.3d at 1314 (dissemination element satisfied where
plaintiff Judicial Watch identified nine ways it communicates
information to the public, including news releases, monthly
newsletters, radio and television programs it produces, and also
provided numerical estimates of the number of people reached through
some of these methods); Fed. CURE, 602 F. Supp. 2d at 204 (plaintiff
satisfied element where it “provided reasonably specific numbers
detailing its subscribers and readership” for its website,
newsletter and on-line discussion groups); Judicial Watch Inc., 185
F. Supp. 2d at 62 (plaintiff described “several mechanisms” for
disseminating information, including its website, blast faxes, and
radio and television programs); Landmark Legal Found. v. IRS, Case
No. 97-1474, 1998 U.S. Dist. LEXIS 21722 at *4-5 (D.D.C. Sept. 22,
1998)(organization identified six methods of distribution and
provided estimates of number of people reached via website,
newsletters, blast faxes, letters to Congress, etc.).
In this case, by contrast, COA has not met its burden.
Throughout its voluminous correspondence with the FTC regarding its
first FOIA request, it identified only two methods of dissemination,
which it discussed only in footnotes: its website and articles
published by news media that have relied upon COA’s past work on
other issues. See Compl. Exs. 5, 12. Plaintiff did not provide any
estimate of the number of people likely to view its website, nor did
17
it demonstrate other ways in which it would disseminate the
information itself, without relying on another source.3 Id. And
although COA provided a string cite of articles authored and
published by other outlets as a result of its past efforts to gather
information on other topics, it specified no organizations which
would disseminate this information. Id. Other courts have found
similar claims lack the specificity and certainty to support a
finding that a fee-waiver requestor has the ability to disseminate
information to a reasonably broad segment of the public. See, e.g.,
Oglesby v. Dep’t of the Army, 920 F.2d 57, 66 n.11 (D.C. Cir. 1990)
(finding a writer’s past work insufficient to justify a fee waiver);
Judicial Watch I, 122 F. Supp. 2d at 18-19 (finding the requestor
did not show its intent and ability to disseminate when it had not
identified the media contacts that would produce the requested
information); Judicial Watch, Inc. v. U.S. Dep’t of Justice, No.
Civ. 99-2315, 2000 U.S. Dist. LEXIS 19789 at *14-15 (D.D.C. Aug. 17,
2000) (finding requestor’s past record in uncovering information
“simply irrelevant” to fee waiver analysis because a FOIA analysis
3
In its January 27, 2012 letter, COA argued it should receive a fee
waiver as a representative of the news media – not under the public
interest exemption – because it had published information on
Facebook, Twitter, and via an email newsletter to “subscribers”
during the previous five months. Compl. Ex. 12 at 7. Again,
however, plaintiff provided no details about its online presence,
including any information about numbers of subscribers, viewers or
followers, nor did it mention the frequency of its posts or
publications.
18
focuses on the “subject and impact of the particular disclosure, not
the record of the requesting party”).
In its Opposition, Plaintiff argues that it meets the
dissemination element by pointing to its past experience turning raw
materials into distinct works and disseminating information to its
media contacts. Pl.’s Opp’n at 27. Plaintiff also claims it would
disseminate the information through its media contacts, on its
website, via its newsletter, and through its social media sites.
Pl.’s Opp’n at 28. The FTC, however, correctly argues that
Plaintiff did not provide most of this evidence during the lengthy
administrative process, and correctly states that judicial review of
fee waiver denials is limited to the administrative record. Def.’s
Mot. Summ. J. at 12; see Def.’s Reply at 4-7.
Based on the foregoing, the Court concludes that plaintiff has
not demonstrated with sufficient specificity that it has the ability
to convey the information in its first FOIA request to the general
public. Because the plaintiff did not satisfy the third element of
the public interest prong of the test, the FTC properly denied
Plaintiff a public interest fee waiver for its first request.
b. Request #2 (FOIA-2012-00227)
Plaintiff is not entitled to a public interest fee waiver for
its second request concerning the FTC’s history granting public
interest fee waivers. This request fails the “public interest”
19
prong because while the first and second elements of the test are
satisfied, the third and fourth elements are not.
Plaintiff satisfies the first element since the information it
requests involves the operations or activities of government. The
requested information involves the operations and activities of
government because it concerns the FTC’s decision-making process on
fee waivers. See Judicial Watch, Inc., 365 F.3d at 1126-27 (finding
information on FOIA requests regarding presidential pardons involved
the operations and activities of government).
Plaintiff satisfies the second element since the information is
likely to contribute to public understanding. The requested
information is likely to contribute to public understanding by
enlightening the public on how to obtain public interest fee waivers
for FOIA requests. See Rossotti, 326 F.3d at 1313-14; Prison Legal
News, 436 F. Supp. 2d at 26.
However, Plaintiff has not met the third element and shown that
the requested information will contribute to understanding of the
public at large. Plaintiff and the FTC largely repeat their
arguments regarding the first request for this second request. The
FTC, however, also adds that Plaintiff did not satisfy this element
because Plaintiff’s website was not even functional at the time of
this second request. Def.’s Mot. Summ. J. at 11; Def.’s Reply at 16.
Plaintiff contests this fact. Plaintiff’s Statement of Genuine
20
Issues and Response to Defendant’s Statement of Material Facts
(“Pl.’s Genuine Issues”) 2-3.
The Court finds that Plaintiff did not satisfy this third
element for the same reasons that Plaintiff did not satisfy this
third element for its first request: COA did not specifically
demonstrate its intent and ability to disseminate the requested
information to the public. Regardless of whether or not the website
was functional, Plaintiff made no attempt to explain how many people
likely view its website and thus would likely view the requested
information. See generally Pl.’s Opp’n. Plaintiff’s lack of
specificity in this matter means it has not met its burden to
indicate its intent and ability to disseminate the information to
the public. See Rossotti, 326 F.3d at 1314; Fed. CURE, 602 F. Supp.
2d at 203; Judicial Watch Inc., 2005 U.S. Dist. LEXIS 14025, at *13-
14.
Plaintiff has also not satisfied the fourth element of the test
and shown that the information would significantly contribute to
public understanding. Because the primary beneficiary of the
requested information is Plaintiff, the information is not likely to
significantly contribute to public understanding. See Nat'l
Treasury Employees Union, 811 F.2d at 647-49; Monroe-Bey, 890 F.
Supp. 2d at 98.
Plaintiff argues that it satisfies this element because it will
write a report describing how the FTC grants public interest fee
21
waivers, which will benefit the public. Opp’n at 7-8, 31-32. The
FTC argues that Plaintiff has not shown that the report would
benefit the public. Def.’s Mot. Summ. J. at 12; see Def.’s Reply at
14.
The Court agrees with the FTC. In National Treasury Employees
Union, the court denied the plaintiff a fee waiver for a FOIA
request concerning information on employees who had previously
received awards and bonuses. 811 F.2d at 648. Even though the
union’s large size meant the information could improve labor
relations and working conditions for a large part of the population,
the court still denied the union a fee waiver because the union
primarily made the request to benefit its “unique and limited”
private interests. Id.Similar to the union’s requested information, Plaintiff’s
proposed report on the FTC’s fee waiver grants may well benefit the
public, but the record does not indicate that Plaintiff primarily
made this second request in order to write that report to benefit
the public. First, Plaintiff made this second request in the same
letter it was appealing the FTC’s denial of a public interest fee
waiver for its first request. Compl. Ex. 5. In fact, Plaintiff
made this second request contingent on the possibility that “upon
review of [its] appeal, the FTC continues to deny Cause of Action’s
claims for a fee waiver under the public interest exception.” Id.Because Plaintiff only wanted to pursue this second request if the
22
FTC found it was not entitled to a public interest fee waiver on the
first request, it is clear that Plaintiff’s primary interest in the
second request was its desire to better prepare itself for an appeal
of its fee waiver denial of its first request. Second, Plaintiff
never expressly indicated in this second request that it had plans
to use the information to inform the public about the FTC’s history
of granting fee waivers. Id. This fact has made the Court
skeptical of Plaintiff’s intentions of benefiting the public with
this second request, because Plaintiff had made clear its intentions
of informing the public when it made its first FOIA request. See
Compl. Ex. 1. Because plaintiff has not demonstrated that the
public was the primary beneficiary of the requested information,
Plaintiff does not satisfy the fourth element of the “public
interest” prong of the test.4
4
Having concluded that COA’s second FOIA request fails the public
interest prong of the test, it is unnecessary to determine whether
it meets the commercial interest prong. See 5 U.S.C. §
552(a)(4)(A)(iii) (fee waiver granted only if the requested
information contributes to “public understanding of the operations
or activities of government and is not primarily in the commercial
interest of the requestor.” (emphasis added). Even if the Court
were to consider the commercial interest prong of the test, however,
it would likely find COA’s second request fails that as well,
because of its nexus with the lawsuit plaintiff filed against the
agency. See Rozet v. HUD, 59 F. Supp. 2d 55, 57 (D.D.C.
1999)(requested information designed to further plaintiff’s
commercial position in a civil suit with agency advances plaintiff’s
commercial interest, rather than the public interest); see also
Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 816 (2d Cir. 1994)
(request for records relating to processing of plaintiff’s own FOIA
requests were in preparation for litigation with the agency over
those requests, and therefore not in the public interest).
23
Accordingly, the FTC properly denied Plaintiff’s request for
a public interest fee waiver for its second request.
c. Request #3 (FOIA-2012-00687)
The fee waiver issue for Plaintiff’s third request is moot
because no fees were associated with the request. As set forth
above, plaintiff was designated as an “Other (General Public)”
requestor, and thus under 16 C.F.R. § 4.8(b)(3) was entitled to 100
disclosable responsive pages free of charge. Def.’s Mot. Summ. J.
at 12; Def.’s Reply at 17;. Plaintiff’s third request yielded
ninety-five responsive pages. The agency determined that sixteen
pages were exempt and provided plaintiff with seventy nine pages
free of charge. Plaintiff did not have to pay a fee for the request
and the FTC did not have to consider whether Plaintiff was entitled
to a fee waiver. Id.Plaintiff claims, however, that the FTC should have still made
a determination on its fee waiver request regardless of how many
documents were ultimately withheld. Pl.’s Opp’n at 33. Plaintiff
contends that had it been entitled to receive more than 100 pages
under a revised search, there would have been a fee associated with
its third request. Id. Plaintiff bolsters its argument by pointing
to an instance where the FTC granted a fee waiver to another group
even when the FTC only located thirty-five pages, six of which were
exempt. Id. The FTC responds by claiming that fee waiver
24
determinations are made on a case-by-case basis. Def.’s Reply at
18.
The Court agrees with the FTC on this issue. Agencies are
discouraged from making fee waiver determinations based on the
possibility that some records may ultimately be determined to be
exempt from disclosure. Schoenman v. FBI, 604 F. Supp. 2d 174, 190
(D.D.C. 2009) (quoting Judicial Watch, Inc., 2005 U.S. Dist. LEXIS
14025, at *12); see also Carney, 19 F.3d at 815 (finding that
agencies should only deny fee waiver requests for “patently exempt
documents”). Courts do not want agencies to deny fee waivers based
on the possibility of the documents’ exempt status only because it
might permit an agency to “require a requestor who is otherwise
entitled to a fee waiver to make payment even before the agency’s
claimed exemption has been tested in court” or because it might
discourage requestors from testing the boundaries of FOIA’s
exemptions. Carney, 19 F.3d at 815; see Schoenman, 604 F. Supp. 2d
at 190; Judicial Watch, Inc., 2005 U.S. Dist. LEXIS 14025, at *12.
In Schoenman, the court found it unacceptable for the agency to deny
the requestor a fee waiver after finding that portions of the
requested documents were exempted. 604 F. Supp. 2d at 190. In
Judicial Watch, Inc., the agency was not permitted to deny the
requestor a fee waiver after finding most of the information was
exempt and the non-exempt information did not satisfy the public
interest fee waiver test. 2005 U.S. Dist. LEXIS 14025, at *12.
25
However, unlike Schoenman and Judicial Watch, Inc., the FTC
declared Plaintiff’s fee waiver issue moot not based on the number
of pages that were exempt, but based on the fact that it only found
less than 100 responsive pages for Plaintiff’s third request. As a
result, the FTC could not have been discouraging Plaintiff from
testing the bounds of FOIA’s exemptions because it did not base
Plaintiff’s fee waiver determination on the number of pages that
were exempted. Furthermore, the concern that the FTC made a fee
waiver determination before the exemptions were tested in court is
not relevant here. Even if this Court found that the FTC improperly
withheld the sixteen pages from Plaintiff, Plaintiff would still
only receive ninety-five pages and Plaintiff would still not be
required to pay a fee under 16 C.F.R. § 4.8(b)(3).
Moreover, Plaintiff’s arguments that it might be required to
pay a fee if a revised search produces more than 100 pages is
unpersuasive. It is inappropriate to speculate about the existence
of other responsive documents for Plaintiff’s request that may have
entitled Plaintiff to more than 100 pages. See SafeCard Services,
926 F.2d at 1200 (finding that agency affidavits or declarations are
accorded “a presumption of good faith, which cannot be rebutted by
purely speculative claims about the existence and discoverability of
other documents”). The FTC’s affidavits indicate it performed a
thorough and diligent search regarding Plaintiff’s request, Gray
Decl. at ¶¶ 24-26, and COA does not challenge the adequacy of the
26
search in this litigation. Thus, the fee waiver issue for
Plaintiff’s third request is moot.
2. “Representative of the News Media” Fee Waiver
Fees associated with FOIA requests are “limited to reasonable
standard charges for document duplication when records are not
sought for commercial use and the request is made by . . . a
representative of the news media.” 5 U.S.C. § 552(a)(4)(A)(ii)(II)
(2012). A representative of the news media is a person or entity
that (1) gathers information of potential interest to a segment of
the public; (2) uses its editorial skills to turn the raw materials
into a distinct work; and (3) distributes that work to an audience.
Nat’l Sec. Archive v. U.S. Dep’t of Def., 880 F.2d 1381, 1387 (D.C.
Cir. 1989). The Court’s review of the agency’s denial is de novo.
See Id., 880 F.2d at 1383; Elec. Privacy Info. Ctr. v. U.S. Dep’t of
Def., 241 F. Supp. 2d 5, 9 (D.D.C. 2003) (hereinafter “EPIC”);
Judicial Watch, Inc. v. U.S. Dep’t of Justice, 185 F. Supp. 2d at
59. The Court’s review is also limited to the record before the
agency. Judicial Watch, Inc., 185 F. Supp. 2d at 59. The requestor
has the burden of proving it is a representative of the news media.
Id. at 60; Hall v. CIA, Case 04-814, 2005 U.S. Dist. LEXIS 6638, *21
(D.D.C. Apr. 13, 2005).
For the reasons set forth in Section III.A.1.C above,
plaintiff’s request for a fee waiver for its third request is moot
because no fees were associated with the request. Accordingly, the
27
Court must determine whether Plaintiff sufficiently demonstrated its
qualification for a “representative of the news media” fee waiver
for its first and second FOIA requests.5
The Court concludes Plaintiff has not sufficiently demonstrated
it is entitled to “representative of the news media” for either
request. Plaintiff satisfies the first element of the definition
but not the second or third elements.
Plaintiff satisfies the first element because it gathers
information of potential interest to a segment of the public.
Plaintiff’s first request regarding the FTC’s Guides satisfies this
element because the request involves gathering information on social
media authors and blogger’s First Amendment rights. See EPIC, 241 F.
Supp. 2d at 11 (finding information on privacy issues and civil
liberties was of potential interest to the public). Plaintiff’s
second request regarding fee waiver denials also satisfies this
element because it involves gathering information on government
decisions that can affect parts of the population. See Nat’l Sec.
5
The FTC claims COA did not exhaust its administrative remedies for
its first request because it failed to raise the news media issue in
its initial appeal of FTC’s denial of a fee waiver. See Compl. Ex.
5, Compl. Ex. 6 n.1. Plaintiff responds that it “continuously
asserted that it was a news media requestor” throughout its
voluminous correspondence with the FTC, which often addressed
multiple FOIA requests and asserted multiple theories for fee
waivers within the same letters. Opp’n at 5, citing Compl. Ex. 3 at
2, Ex. 8 at 5, Ex. 12 at 7. Assuming without deciding that
plaintiff exhausted its administrative remedies, plaintiff’s request
is denied on the merits for the reasons set forth below.
28
Archive, 880 F.2d at 1386 (finding information on U.S. foreign
affairs was of potential interest to the public).
Plaintiff, however, does not satisfy the second element by
showing it uses its editorial skills to turn raw material into a
distinct work. To satisfy the second element, Plaintiff must
demonstrate that it would use information from a range of sources to
independently produce a unique product. Nat’l Sec. Archive, 880
F.2d at 1386; EPIC, 241 F. Supp. 2d at 11-12. In National Security
Archive, the requestor satisfied this element because it was
gathering raw material from a wide variety of sources in addition to
the FOIA requests at issue in order to create “document sets” on
specific topics, as it previously had done in a published book. 880
F.2d at 1386. The requestor in EPIC identified seven books it
previously published that contained information derived from various
sources beyond FOIA requests to substantiate its intent and ability
to do so again. 241 F. Supp. 2d at 11-12.
COA has not shown it is like the plaintiffs in those cases.
The only information it identified as “published” is unspecified
information it posts on its website, social media sites such as
Facebook and Twitter, and through an email newsletter it began
publishing to subscribers beginning in September 2011, after it made
its first FOIA request and just one month before it filed its second
request. Pl.’s Opp’n at 36-37, see also Compl. ¶¶ 12,25, Ex. 8 at
29
4, Ex. 12 at 7.6 Also unlike those plaintiffs, COA did not indicate
any distinct work it planned to create based on the requested
information or that it would use any information beyond that
obtained in the FOIA requests to create any unique product. See
Compl. Ex. 12. Accordingly, it did not satisfy the second element
of the news media requestor definition.
Even if it had satisfied the second element, however, COA would
not qualify for the news media fee waiver because it did not satisfy
the third element: that it has an intent and ability to disseminate
its work. To satisfy this element, Plaintiff must demonstrate that
it has the intent and ability to disseminate the requested
information to the public rather than merely make it available;
Plaintiff must also demonstrate that its operational activities are
especially organized around doing so. See EPIC, 241 F. Supp. 2d. at
12-13; Nat’l Sec. Archive, 880 F.2d at 1386-87; Judicial Watch,
Inc., 185 F. Supp. 2d at 59-60; Judicial Watch I, 122 F. Supp. 2d at
21.
Plaintiff points to its periodical newsletter, website, social
media sites, and relationships with media contacts as proof of its
intent and ability to disseminate the information. Pl.’s Opp’n at
36-38. The FTC argues that Plaintiff did not demonstrate it could
6
Plaintiff provided slightly more information regarding its
publishing practices in its April 4, 2012 letter to the FTC, but
this letter was solely in reference to its third FOIA request. It
was not before the Agency in its determination regarding plaintiff’s
first two requests. See Compl. Ex. 15.
30
disseminate its work to an audience because it characterized its
actions as more like a middleman for dissemination to the media than
a representative of the media itself. Def.’s Mot. Summ. J. at 11-
12; Def.’s Reply at 11. Furthermore, the FTC argues that
Plaintiff’s website was not functioning at the time of the second
request and that its list of media contacts is not part of the
administrative record. Id.Upon review of the administrative record, the Court finds
Plaintiff did not satisfy the third element of the news media
requestor definition. First, Plaintiff has not specifically
demonstrated its intent and ability to disseminate the requested
information to the public rather than merely make it available. In
EPIC, the requestor satisfied this element by indicating that its
newsletter reached 15,000 readers and had been published every two
weeks for the past eight years. 241 F. Supp. 2d at 12-13. By
contrast, COA’s newsletter did not even exist until after it made
its first FOIA request, and had only been published for a month when
it filed its second request. Although COA claimed it would
disseminate the requested information through its periodical
newsletter, website, social media sites, and media contacts,
Plaintiff has not estimated how many people view its website or
social media, nor has it indicated whether its media contacts would
write about the requested information. Moreover, even assuming
COA’s media contacts would publish articles or reports involving the
31
information, this is still not enough; COA “cannot simply borrow
[its media contacts’] credentials for purposes of proving its own
entitlement to a “representative of the news media” fee limitation.”
Hall v. CIA, 2005 U.S. Dist. LEXIS 6638, *22 n.11. Thus, even
assuming Plaintiff’s website was functioning and its list of media
contacts was in the administrative record, Plaintiff’s website and
media contacts would not have been sufficient to satisfy this
element.
Second, the administrative record does not show that
Plaintiff’s activities are organized especially around
dissemination. For a “representative of the news media” fee waiver
request, the requestor should be identified by its activities rather
than by its description. EPIC, 241 F. Supp. 2d at 11-12; Nat’l Sec.
Archive, 880 F.2d at 1385-86. In EPIC, the plaintiff was organized
around dissemination since it was an educational institution engaged
in publishing books and contributing to other publications. 241 F.
Supp. 2d at 1112; see also Nat’l Sec. Archive, 880 F.2d at 1386(finding the plaintiff archivist engaged in scholarly research was a
representative of the news media). In the Judicial Watch, Inc.
cases, on the other hand, the requestor did not satisfy this element
because while it had shown it would provide the information to
reporters, post it on its website, blast press releases, and convey
the information in its radio and television appearances, the
requestor ultimately admitted that its activities mainly involved
32
performing nonprofit government watchdog functions. Judicial Watch,
Inc., 185 F. Supp. 2d at 59-60; Judicial Watch I, 122 F. Supp. 2d at
21. As a result, the Courts found the requestor was more like a
middleman for dissemination to the public rather than a
representative of the news media. Id.Similar to the Judicial Watch, Inc. cases, Plaintiff has
admitted to this Court that it is an “independent 501(c)(3) public
interest organization” and that its activities involve “us[ing]
public advocacy and legal reform strategies to ensure greater
transparency in government, protect taxpayer interests, and promote
economic freedom.” Compl. ¶ 5; Ex. 8. Unlike the research
organizations in EPIC and National Security Archive, Plaintiff
performs its activities to aid in government accountability and is
thus more like a middleman for dissemination to the media. Because
Plaintiff did not demonstrate that it distributes work to an
audience and is especially organized around doing so, it cannot be
defined as a representative of the news media.
B. EXEMPTION 5
The final issue before this Court is whether the FTC properly
withheld documents responsive to Plaintiff’s second and third FOIA
requests under Exemption 5.7 Because plaintiff did not exhaust its
administrative remedies for this issue with respect to its second
7
The FTC released in full 100 pages of responsive records in
response to COA’s first request, claiming no exemptions from
withholding. Gray Decl. ¶¶ 14-15.
33
request, the Court cannot address whether documents for Plaintiff’s
second request were properly withheld. With regard to Plaintiff’s
third request, the Court finds that the FTC properly withheld the
memoranda under Exemption 5’s deliberative process privilege and
Exemption 5’s attorney work-product privilege but improperly
withheld the screenshots under both privileges.
1. FOIA Request #2 (FOIA-2012-00227)
The FTC argues that this Court cannot review the issue of FTC’s
withholding of documents for Plaintiff’s second request since
Plaintiff did not exhaust its administrative remedies. Def.’s Mot.
Summ. J. at 16; Def.’s Reply at 19-20. Specifically, the FTC
contends that plaintiff did not appeal the agency’s withholding of
documents pursuant to Exemption 5 that were responsive to
plaintiff’s second FOIA request. Def.’s Reply at 20. However,
Plaintiff claims that its April 4, 2012 letter in which it asked for
a Vaughn index demonstrates its challenge to the FTC’s withholding
of documents for its second request. Pl.’s Opp’n at 38 n.19.
Plaintiff argues that any full appeal of the FTC’s withholding for
its second request would have been premature because the FTC had not
yet provided a Vaughn index to satisfy its burden of proving the
documents’ eligibility for the claimed exemptions. Id.The Court agrees with the FTC. Requestors must exhaust all
administrative remedies before seeking judicial review of agency
actions. Oglesby, 920 F.2d at 62-63; Dettmann v. U.S. Dep’t of
34
Justice, 802 F.2d 1472, 1476-77 (D.C. Cir. 1986). A requestor who
does not make any objections to the agency’s actions regarding a
FOIA request has not exhausted its administrative remedies with
respect to that agency action. Dettmann, 802 F.2d at 1477 (holding
that it is possible to exhaust administrative remedies with respect
to one aspect of a FOIA request but not another). Exhaustion is
usually required so that the agency has an opportunity to exercise
its discretion and expertise on the matter and to make a factual
record to support its decision before a court interferes. Hidalgo
v. FBI, 344 F.3d 1256, 1258 (D.C. Cir. 2003).
In this case, Plaintiff did not specifically object to the
FTC’s withholding of documents responsive to its second request.
Plaintiff points to its April 4, 2012 letter as proof of its appeal
but that letter only referred to Plaintiff’s third FOIA request.
See Compl. Exs. 15-16. Because Plaintiff did not specifically
appeal the withholding with regard to its second request, the FTC
did not have a chance to address the exemptions relating to the
second request before Plaintiff filed this suit. See Compl. Exs.
15, 16. Consequently, the purposes of exhaustion were not satisfied
in this case as the FTC has not been able to consider Plaintiff’s
issue before this Court interferes.
Furthermore, Plaintiff’s claims that an administrative appeal
would have been premature because no Vaughn index had yet been
provided are unavailing. Plaintiff was not entitled to a Vaughn
35
index during the FTC’s administrative appeals process. See Citizens
for Resp. & Ethics in Wash. v. FEC, 711 F.3d 180, 187 n.5 (D.C. Cir.
2013). As a result, Plaintiff’s appeal could not have been
contingent on the provision of a Vaughn index.
2. FOIA Request #3 (FOIA-2012-00687)
The FTC also argues that Plaintiff did not exhaust its
administrative remedies regarding the agency’s withholding of
documents responsive to its third request. Def.’s Reply at 17.
Unlike Plaintiff’s second request, however, the Court finds
Plaintiff did exhaust its administrative remedies for this request
by objecting to the FTC’s conclusory withholding of documents for
its third FOIA request in its April 4, 2012 letter of appeal. See
Compl. Ex. 15 at 1-4. The purposes of the exhaustion requirement
have been met since the FTC had an opportunity to address the matter
when it responded to Plaintiff’s appeal in its May 7, 2012 letter.
See Compl. Ex. 16, see also Hidalgo, 344 F.3d at 1258. Thus, the
Court can address whether the FTC properly withheld the documents
under Exemption 5 for the third request.
The defendant withheld two categories of documents under
Exemption 5: (1) two screen shots of COA’s website taken in December
2011; and (2) three short memoranda, between four and six pages in
length, prepared by paralegals for agency counsel between September
and December 2011 regarding COA’s FOIA requests. The agency relies
on two privileges to justify withholding under Exemption 5: the
36
deliberative process privilege and the attorney work product
privileges. See Compl. Ex. 14. The privileges will be addressed in
turn.
a. Deliberative Process Privilege
Exemption 5 allows agencies to withhold “inter-agency or intra-
agency memorandums or letters which would not be available by law to
a party other than an agency in litigation with the agency.” 5
U.S.C. § 552(b)(5). Exemption 5’s deliberative process privilege
protects agency documents that are both (1) predecisional and (2)
deliberative. Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151 (D.C.
Cir. 2006); Baker & Hoestetler LLP v. U.S. Dep’t of Commerce, 473
F.3d 312, 321 (D.C. Cir. 2006). To be predecisional, documents must
precede an identifiable agency decision, and the information must
have been used in the decision making process. Morley v. CIA, 508
F.3d 1108, 1127 (D.C. Cir. 2007). Documents are deliberative if
they reflect the give-and-take of the consultative process. Coastal
States Gas Corp. v. U.S. Dep’t of Energy, 617 F.2d 854, 866 (D.C.
Cir. 1980). The analysis is a functional approach and courts must
determine whether disclosure of the document would “stifle honest
and frank communication within the agency.” Id. at 866. Documents
made by a subordinate for a superior, which contain recommendations
or legal advice based on opinion to aid in making complex decisions,
are considered deliberative. Id. at 868-869; Brinton v. U.S. Dep't
of State, 636 F.2d 600, 604 (D.C. Cir. 1980). Even factual material
37
prepared by staff for a superior can be deliberative when the
documents likely incorporate staff opinions on which facts are
important for the superior to make a decision. Mapother v. U.S.
Dep't of Justice, 3 F.3d 1533, 1538 (D.C. Cir. 1993); Montrose Chem.
Corp. of California v. Train, 491 F.2d 63, 67-68 (D.C. Cir. 1974).
It does not appear that Plaintiff challenges the FTC’s
invocation of the deliberative process privilege in response to
Plaintiff’s third request. See Opp’n at 43-44. Nevertheless,
because Plaintiff clearly intended to challenge the withholding
under Exemption 5, the Court addresses the issue and concludes that
the FTC properly withheld the memoranda but not the screenshots
under Exemption 5’s deliberative process privilege.
The FTC argues that the memoranda were properly withheld under
the deliberative process privilege because they consist of the
subordinate employee’s “personal thoughts, opinions and analysis,
and his predecisional recommendations to his supervisor.” Def.’s
Mot. Summ. J. at 17; see Def.’s Reply at 23. The Court agrees. The
memoranda were specifically written with regards to Plaintiff’s FOIA
requests. Stearns Decl. at ¶¶ 33-34. The memoranda are
deliberative because they contain legal advice and recommendations
from a subordinate paralegal to a supervising attorney on how the
FTC should make a complex decision, Plaintiff’s qualification for
fee waivers for its FOIA requests. Def.’s Mot. Summ. J. Ex. T;
Stearns Decl. at ¶ 33-34. Even if the memoranda contain facts, the
38
affidavits demonstrate that these facts involve the subordinate’s
opinions since the facts “[reflect] the author’s judgment and
assessment of the relevant data.” Def.’s Mot. Summ. J. Ex. T.
To the extent Plaintiff raises a segregability challenge, it is
unavailing. The Court finds that the FTC sufficiently met its duty
to detail whether any segregable items could have been disclosed.
The Stearns declaration, see Stearns Decl. at ¶ 38, and the Vaughn
index, see Def.’s Mot. Summ. J. Ex. T, indicate that no information
could be segregated because the information was inextricably
intertwined with the subordinate’s thoughts and personal opinions
regarding the agency’s response to COA’s FOIA requests. See Mead
Data Cent., Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 260
(D.C. Cir. 1977) (requiring an agency to explain if non-exempt
portions are “inextricably intertwined with exempt portions” and
thus cannot be disclosed); Edmonds Inst. v. U.S. Dep’t of the
Interior, 383 F. Supp. 2d 105, 109-10 (D.D.C. 2005) (requiring an
agency to “explain whether there is any information that can be
segregated as non-exempt from the rest of the document”). The Court
therefore finds that, as to the three withheld memoranda, any
nonexempt portions are so intertwined with exempt portions that no
portion can be disclosed.
However, the FTC improperly withheld the screenshots under the
deliberative process privilege. “Factual material is not protected
under the deliberative process unless it is ‘inextricably
39
intertwined’ with the deliberative material.” Judicial Watch, Inc.
v. U.S. Dep't of Justice, 432 F.3d 366, 372 (D.C. Cir. 2005) (citing
In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997); Bristol-Myers
Co. v. FTC, 424 F.2d 935, 939 (D.C. Cir. 1970); Am. Civil Liberties
Union v. FBI, 429 F. Supp. 2d 179, 190 (D.D.C. 2006). The
screenshots are factual material because according to the FTC’s
affidavits, the screenshots are “images, derived from accessing
COA’s website, that depict the functionality, or the lack thereof,
of COA’s website.” Suppl. Decl. of Dione Jackson Stearns ¶ 6. Even
if the paralegal took the screenshots in order to help the
supervising attorney make an informed decision on Plaintiff’s fee
waiver request, the paralegal did not express any opinions in taking
the screenshots. When he took the screenshots, the paralegal was
simply capturing images of Plaintiff’s website at the direction of
his supervising attorney. Def.’s Mot. Summ. J. Ex. T. Thus, there
is also no “deliberative” material upon which the screenshots could
be “inextricably intertwined.” As a result, the screenshots cannot
be properly withheld under Exemption 5’s deliberative process
privilege.
As a result, the FTC has met its burden to demonstrate that the
memoranda, but not the screenshots, were properly withheld under the
deliberative process privilege.
40
b. Attorney Work-Product Privilege
Exemption 5 can be construed as exempting documents that are
normally privileged in the civil discovery context, including
documents protected by the attorney work-product privilege. NLRB v.
Sears, Roebuck & Co., 421 U.S. 132, 154 (1985). The work-product
doctrine protects materials “prepared in anticipation of litigation
or for trial by or for another party or its representative. . . .”
Fed. R. Civ. P. 26(b)(3)(A). The privilege is narrow and is
primarily applied to protect the adversarial process by allaying
attorneys’ fears that their thoughts and opinions could be exposed
to their adversaries. Coastal States Gas Corp., 617 F.2d at 864
(citing Jordan v. U.S. Dep’t of Justice, 591 F.2d 753, 775 (D.C.
Cir. 1978)). Thus, documents that would not be “routinely” or
“normally” available to parties during litigation fall under the
attorney work-product privilege of Exemption 5. Sears, Roebuck &
Co., 421 U.S. at 148-49.
In assessing whether the proponent has carried its burden to
show a document is protected as work-product, the relevant inquiry
is “whether, in light of the nature of the document and the factual
situation in the particular case, the document can fairly be said to
have been prepared . . . because of the prospect of litigation.”
EEOC v. Lutheran Soc. Servs., 186 F.3d 959, 968 (D.C. Cir. 1999).
Although the agency need not have a specific claim in mind when
preparing the documents, there must exist some articulable claim
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that is likely to lead to litigation in order to qualify the
documents as attorney work-product. Coastal States Gas Corp., 617
F.2d at 865; Schiller v. NLRB, 964 F.2d 1205, 1208 (D.C. Cir. 1992)
abrogated on other grounds by Milner v. Dep't of Navy, 131 S. Ct.
1259 (2011); Am. Immigration Council v. Dep’t of Homeland Security,
905 F. Supp. 2d 206, 221 (D.D.C. 2012) (work product encompasses
documents prepared for litigation that is “foreseeable,” if not
necessarily imminent). As another judge on this Court recently
observed:
The Circuit has drawn a line between neutral, objective
analyses of agency regulations and more pointed documents that
recommend how to proceed further with specific investigations
or advise the agency of the types of legal challenges likely to
be mounted against a proposed program, potential defenses
available to the agency, and the likely outcome. Neutral,
objective analysis is like an agency manual, fleshing out the
meaning of the law, and thus is not prepared in anticipation of
litigation. More pointed advice, however, anticipates
litigation.
Am. Immigration Council, 905 F. Supp. 2d at 221-222 (citations and
quotation marks omitted).
The FTC argues that the memoranda were properly withheld under
the attorney work-product privilege because they were prepared by
the paralegal under the direction of an attorney and in anticipation
of litigation specifically with Plaintiff, over Plaintiff’s FOIA
requests and the agency’s responses to those requests. Def.’s Mot.
Summ. J. at 16-17; see Def.’s Reply at 23-24. Indeed, the final
withheld memorandum, dated December 16, 2011, was prepared after COA
42
had explicitly threatened the agency with litigation. See Compl.
Ex. 9, Letter from COA to FTC dated Dec. 12, 2011 at 3 (“We question
your purported reliance on Ogelsby, but will be more than happy to
take that issue up with the District Court should you persist in
denying our fee waiver.”).
Because the FTC’s affidavits and Vaughn index consistently
demonstrate that the documents were prepared in reasonable
anticipation of litigation with Plaintiff, the FTC has met its
burden to show that the memoranda fall under Exemption 5’s attorney
work-product privilege. As a result, there is no need to perform an
in-camera inspection of the memoranda. See Elec. Privacy Info.
Center v. U.S. Dep’t of Justice, 584 F. Supp. 2d 65, 83 (D.D.C.
2008) (finding in-camera review appropriate where agency affidavits
in support of a claim of exemption were insufficiently detailed);
Mehl v. EPA, 797 F. Supp. 43, 46 (D.D.C. 1992) (deciding to perform
an in-camera review of the documents in question because a publicly
available report describing the documents contradicted the agency’s
affidavits describing the same documents). Moreover, a document
protected by the work product privilege “is fully protected,”
thereby requiring no segregability analysis. Judicial Watch, Inc.
v. DOJ, 432 F.3d at 371.
However, the FTC improperly withheld the screenshots under the
attorney work-product privilege. It is true that Exemption 5’s
attorney work-product privilege protects any part of a document
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prepared in anticipation of litigation, including the opinions and
legal theories as well as the facts. Judicial Watch, Inc., 432 F.3d
at 371; Martin v. Office of Special Counsel, 819 F.2d 1181, 1187
(D.C. Cir. 1987); Tax Analysts v. IRS, 117 F.3d 607, 620 (D.C. Cir.
1997). Furthermore, unlike the deliberative process privilege, the
attorney work-product privilege does not require segregability of
the facts from the opinions. This practice ensures that the
attorney’s appraisal of factual evidence is protected. Exxon Corp.
v. FTC, 476 F. Supp. 713, 722-723 (D.D.C. 1979). Nevertheless, when
documents are purely factual, Exemption 5’s attorney work-product
privilege no longer applies. Mervin v. FTC, 591 F.2d 821, 826 (D.C.
Cir. 1978) (“[T]he government cannot exempt pure statements of fact
from disclosure by calling them attorney work-product”); Exxon
Corp., 476 F. Supp. at 722-23. Thus, the same reasoning that
precluded the screenshots as exempted under the deliberative process
privilege precludes them as exempted under the attorney work-product
privilege. As purely factual material that contains no opinions or
strategic thinking of the paralegal who prepared them, or the
attorney for whom they were prepared, the screenshots were
improperly withheld under Exemption 5’s attorney work-product
privilege.
Thus, the FTC properly withheld the memoranda under Exemption
5’s attorney work-product privilege but improperly did so for the
screenshots.
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IV. CONCLUSION
For the foregoing reasons, Defendant’s motion for summary
judgment is GRANTED IN PART AND DENIED IN PART. The motion is
GRANTED with respect to Plaintiff’s applications for fee waivers,
and is further GRANTED with respect to the Defendant’s withholding
of documents responsive to Plaintiff’s second FOIA request, and its
withholding of memoranda responsive to Plaintiff’s third FOIA
request. The motion is DENIED with respect to the FTC’s decision to
withhold screenshots of Plaintiff’s website responsive to its third
FOIA request. A separate order accompanies this memorandum opinion.
Signed: Emmet G. Sullivan
United States District Judge
August 19, 2013
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