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TRANS UNION L.L.C. v. F.T.C.

April 9, 2001

TRANS UNION LLC, PLAINTIFF,
V.
FEDERAL TRADE COMMISSION, DEFENDANT.



The opinion of the court was delivered by: Huvelle, District Judge.

      MEMORANDUM OPINION

Before the Court is defendant's motion to dismiss or for summary judgment, plaintiffs opposition, defendant's reply, and plaintiffs supplemental opposition. Pursuant to plaintiffs request for in camera review of the redacted documents, the Court conducted such a review on April 5, 2001. Having reviewed the documents in camera and considered the pleadings and the entire record herein, the Court concludes that defendant is entitled to summary judgment.

FACTUAL BACKGROUND

This action is brought pursuant to the Freedom of Information Act ("FOIA"). 5 U.S.C. § 552 et seq. Trans Union, LLC, a consumer reporting agency, filed its original FOIA request with the Federal Trade Commission ("FTC") on September 12, 2000. In this request, Trans Union sought 22 different categories of materials that the FTC used in drafting and issuing rules pursuant to the Gramm-Leach-Bliley Act ("GLB Act"), Pub.L. No. 106-102, 113 Stat. 1338 (1999). On October 17, 2000, representatives from Trans Union and the FTC agreed that the FTC would provide the responsive documents in installments, beginning with a partial disclosure by October 31, 2000. (Complaint, Ex. C.) On December 1 and 19, 2000, the FTC produced installments of its response to Trans Union's request totaling approximately 3,600 pages of responsive documents. On January 17, 2001, the Court held a status hearing on this matter, at which time Trans Union agreed to narrow substantially the scope of its FOIA request and the FTC agreed to respond to the amended request by February 6, 2001. The narrowed request was for:

All documents that constitute, reflect, refer, or relate to, information considered by the FTC, or that was communicated by the FTC to any other agency, in connection with the preparation or promulgation of the Regulations issued pursuant to Title V of the Gramm-Leach Bliley Act, which was obtained by the FTC in connection with the FTC administrative proceeding, In re Trans Union Corp., No. 9255.

On February 6, 2001, Trans Union received a written response from the FTC to this narrowed request. The response included production of three documents: a copy of the Commission's Opinion and Order in In re Trans Union Corp., No. 9255 (FTC Feb. 10, 2000), a two-page memorandum captioned "LCG Draft: 2/9/99," and a two-page email memorandum dated February 15, 2000. Both of the memoranda were heavily redacted. On February 26, 2001, defendant filed this motion to dismiss or for summary judgment. On March 20, 2001, defendant produced a fourth document to Trans Union, a different copy of the same two-page memorandum captioned "LCG 2/9/99" that was found by Lawrence DeMille-Wagman, an attorney in the FTC's Office of the General Counsel. This supplemental copy of the memorandum was also heavily redacted. On April 4, 2001, plaintiff filed a supplemental opposition to defendant's motion to dismiss or for summary judgment and supplemental request for in camera review. On April 5, 2001, the Court granted plaintiffs request for in camera inspection of the redacted documents.

LEGAL ANALYSIS

A. Legal Standard

FOIA provides citizens a statutory right of access to government information. As its basic premise, the Act establishes that government agency records should be accessible to the public. Accordingly, FOIA instructs government agencies to disclose agency records, unless the requested records fall within one of the Act's nine enumerated exemptions. In this case, the defendant has invoked Exemption 5 to justify the nondisclosure of the three documents.

In a FOIA action, the Court may award summary judgment to the agency on the basis of affidavits when the affidavits 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 (D.C.Cir. 1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). However, in this case the Court has exercised its discretion and has examined in camera the redacted documents so that its decision is not based on the affidavits of Ms. Stiefel, but rather, the Court has undertaken to make an independent assessment of defendant's claim of Exemption 5 and its claim that it could not segregate any further portions of the documents.

B. Adequacy of the Search

Plaintiff disputes the adequacy of the agency's search because it yielded only three documents. When an agency's search for records is challenged, the agency prevails on a motion for summary judgment if it shows "beyond material doubt [] that it has conducted a search reasonably calculated to uncover all relevant documents." Weisberg v. United States Dep't of Justice, 705 F.2d 1344, 1351 (D.C.Cir. 1983). For purposes of this showing, the agency "may rely upon affidavits . . ., as long as they are relatively detailed and nonconclusory and . . . submitted in good faith." Id. (citations and quotations omitted). The affidavits must "set[] forth the search terms and the type of search performed, and aver[] that all files likely to contain responsive materials (if such records exist) were searched." Oglesby v. United States Dep't of the Army, 920 F.2d 57, 68 (D.C.Cir. 1990).

Plaintiff argues that the search was not adequate for three reasons. First, plaintiff questions the adequacy of the search because the FTC produced only those documents which expressly reference the FTC's administrative proceeding against Trans Union, although plaintiffs request was broader in scope. Yet, this fact alone does not demonstrate that the FTC improperly limited its search. Plaintiff had requested documents which were "obtained by the FTC in connection with the FTC administrative proceeding, In re Trans Union Corp. No. 9255." It is, therefore, not surprising that the responsive documents would contain references to the proceeding against Trans Union, and this does not suggest that the FTC's has misinterpreted the request.

Second, plaintiff argues that the agency's search was inadequate because the employees who reviewed their documents were unqualified to perform such a search. Defendant submitted a declaration by Alyssa M. Stiefel, an attorney employed by the FTC and charged with responding to FOIA requests. Ms. Stiefel stated in her declaration that she reviewed some of the potentially responsive documents herself and requested that other employees involved in the GLB Act rulemaking forward any responsive documents to her for review. (Stiefel Decl. ¶¶ 5, 810.) Plaintiff argues that Kelli Cosgrove, an FTC employee primarily responsible for the GLB Act rulemaking, is the only employee qualified to determine whether materials were responsive to plaintiffs request, and that Ms. Stiefel failed to involve Ms. Cosgrove in the search process. However, Ms. Stiefel asserts in her affidavit that she contacted all persons involved in the GLB Act rulemaking. (Stiefel Decl. at ¶¶ 4, 10.) Therefore, while Ms. Stiefel does not mention Ms. Cosgrove by name, plaintiff fails to demonstrate that Ms. Cosgrove was not consulted regarding this FOIA request. On the contrary, the evidence could be construed to suggest that she was in fact involved because one of the documents is ...


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