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ICM Registry, LLC v. U.S. Dep't of Commerce

March 29, 2007

ICM REGISTRY, LLC, PLAINTIFF,
v.
U.S. DEPARTMENT OF COMMERCE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: James Robertson United States District Judge

MEMORANDUM

ICM Registry, LLC brings this suit against the U.S. Department of Commerce and the U.S. Department of State under the Freedom of Information Act, 5 U.S.C. § 552, et seq., seeking the disclosure of materials pursuant to three FOIA requests. The FOIA requests at issue sought information concerning the U.S. government's role in the Internet Corporation for Assigned Names and Numbers' consideration of ICM's proposal to create and maintain a new .xxx top level domain for the adult entertainment industry. The government has moved for summary judgment as to the first two FOIA claims and to dismiss the third one for failure to exhaust administrative remedies [9]. ICM has moved for summary judgment on all claims [11]. For the reasons discussed below, the government's motion for summary judgment on Counts I and II will be granted in part and denied in part, the government's to dismiss Count III will be denied, and plaintiff's motion for summary judgment on Counts I, II, and III will be denied.

Background*fn1

Plaintiff ICM Registry, LLC ("ICM") is a Delaware technology company that disavows any "former or current affiliation with the adult entertainment industry," but has sought for years to introduce a .xxx domain on the global internet. [1] ¶ 5. Its purposes, it says, are to promote self-regulation in the industry as an alternative to government intervention, and to assist families in protecting children from inappropriate web content. In pursuit of these goals, plaintiff has twice submitted applications to the Internet Corporation for Assigned Names and Numbers ("ICANN"). On November 16, 2000, ICANN declined to select ICM's first .xxx proposal. On March 16, 2004, after ICANN revised its application process and issued another request for proposals, plaintiff submitted an updated proposal again seeking approval of the .xxx sponsored top-level domain ("sTLD").*fn2 ICM maintains that its second .xxx proposal was the result of extensive outreach to stakeholders, and that its application satisfied all mandatory criteria required by ICANN of its sTLD applicants.

Throughout late 2004 and early 2005, ICM's .xxx proposal went through an extensive vetting process including an extended public comment period, discussion in numerous meetings held by ICANN, its Board, and its various committees, and finally a meeting between ICM and the ICANN Board in April. On June 1, 2005, the ICANN Board determined that the .xxx application met all eligibility criteria for sponsored domains and authorized ICANN staff to initiate contractual negotiations with ICM. After some back and forth between ICM and ICANN over the text of a draft registry agreement, ICANN's Counsel approved the a final version of the agreement on August 1, 2005. On August 9, 2005, ICANN released the agenda for its August 16, 2005 Board meeting, during which ICANN planned to finalize the .xxx sTLD agreement.

The .xxx agreement was not approved at ICANN's August 16, 2005 board meeting, however, and -- apparently in response to pressure from the U.S. government and other concerned parties*fn3 -- the Board postponed its vote on the measure at eight subsequent board meetings. On May 10, 2006, when .xxx vote finally occurred, the ICANN Board voted 9-5 against approving the contract.

On October 18, 2005, ICM submitted identical FOIA requests to the Commerce Department and State Department seeking all records from March 1, 2005 to the present:

. . . consisting of or reflecting, representing, recording or otherwise disclosing communications, written or oral . . . regarding approval by the Internet Corporation for Assigned Names and Numbers ("ICANN"), and/or by its Board of Directors, of the new ".xxx" sponsored top-level domain ("sTLD"), and/or ICANN's or its Board's approval of ICM Registry's contract to operate the .xxx sTLD . . .

. . . consisting of or reflecting, representing, recording or otherwise disclosing communications, written or oral . . . between any personnel at the Department of Commerce, or any Bureau or other component thereof, and the ICANN Board of Directors and its staff, ICANN's Governmental Advisory Committee ("GAC"), any GAC member country, or any individuals or agency in a GAC member country, regarding the .xxx sTLD.

[1] Apps. A & B. The October 18, 2005 FOIA request received by the Commerce Department was designated CRRIF No. 06-068, and the identical request received by the State Department was designated CRRIF No. 04-606. On December 2, 2005, ICM submitted another FOIA request to the Commerce Department seeking all records "pertaining to Deputy Assistant Secretary for Communications and Information John Kneuer's plans to attend, and/or his participation in," the November 30 through December 4 ICANN meeting in Vancouver, Canada. [1] App. C. This final FOIA request was designated CRRIF No. 06-127.

FOIA Request CRRIF No. 06-068

On October 19, 2005, after receiving FOIA request No. 06-068, the Commerce Department's FOIA office forwarded the request to its National Telecommunications and Information Administration ("NTIA").*fn4 By letter dated November 18, 2005, NTIA disclosed approximately 1600 pages of responsive documents, of which 120 pages were withheld in part and 98 pages were withheld in full. According to the accompanying letter, all withholdings and redactions were pre-decisional or privileged and therefore exempt from FOIA pursuant to 5 U.S.C. § 552(b)(5). ICM appealed the withholdings and redactions by letter dated December 2, 2005. Shortly thereafter, by letters dated December 19 and 21, 2005, NTIA disclosed additional responsive records, informing ICM that (1) the attached materials were the final set of responsive documents, (2) certain additional documents were exempt under the § 552(b)(5) deliberative process privilege, and (3) the Commerce Department had coordinated with other agencies before releasing these documents.

ICM communicated with the Commerce Department via teleconference in early January 2006, at which time the parties agreed to treat ICM's December 2, 2005 appeal as an appeal of all three partial denials (November 18, December 19, and December 21). By subsequent teleconference, ICM granted the Commerce Department a two week extension in responding to the administrative appeal. Despite the twenty-working-day deadline for agency responses to FOIA appeals, 5 U.S.C. § 552(a)(6)(A)(ii), the Commerce Department failed to respond to ICM's appeal until after ICM filed this complaint and the court approved a Consent Motion for Briefing Schedule requiring the Commerce Department to decide this appeal by July 14, 2006.

By letter dated July 13, 2006, the Commerce Department partially granted and partially denied ICM's appeal. The agency released 10 additional documents in full (some of which were duplicates of previously released documents), 55 additional documents in part, and continued to withhold 183 documents in part and 60 in full, relying primarily upon the deliberative process privilege in support of its withholdings and redactions.*fn5 5 U.S.C. § 552(b)(5). As to most of the withholdings, the agency asserted that there was no one Government decision to which the documents protected by the deliberative process pertain, but maintained that the documents were part of deliberative processes concerning NTIA's role in ICANN's approval of the proposed .xxx domain.

FOIA Request CRRIF No. 04-606

In response to ICM's October 18, 2005 FOIA request, a representative from the State Department's Office of Information Programs and Services ("IPS") told plaintiff on November 28, 2005 via teleconference that the State Department may not have any materials responsive to ICM's FOIA request. The following day, plaintiff sent to the State Department via facsimile certain documents received from the Commerce Department suggesting that the Commerce Department may have coordinated with the State Department in its response to FOIA request No. 06-068. By letter dated December 13, 2005, the State Department's IPS Office formally acknowledged ICM's FOIA request and informed ICM that it would begin processing the request. The IPS Office noted in the letter -- received long after the 20 working days within which a responses to FOIA requests must be received pursuant to 5 U.S.C. § 552(a)(6)(A)(I) -- that while it would "make every effort to meet the time limits cited in the Freedom of Information Act (5 USC § 552), unusual circumstances may arise for extending the time limit." [1] Ex. 2.

On December 22, 2005, ICM appealed the State Department's response to its 04-606 FOIA request, and on January 3, 2006, IPS responded that (1) the FOIA request is being processed and (2) because the State Department had not yet denied ICM access to any responsive materials, FOIA request 04-606 was not yet subject to administrative appeal. When this complaint was filed on May 19, 2006, ICM was still waiting for an official response from the State Department to its FOIA request of October 18, 2005. After telephone calls between ICM and the State Department in June 2006, and pursuant to my minute order approving the parties' briefing schedule, the State Department informed ICM by letter dated July 5, 2006 that searches of various State Department records systems had begun, and enclosed over 1,100 pages of press clippings that had not been screened for responsiveness to FOIA request 04-606. By letter dated July 14, 2006, IPS informed ICM that the search of all State Department records systems was complete. Of the 74 responsive documents located, 30 were released in full, 6 were released in part, 34 were withheld in full, and 5 required interagency coordination prior to release or withholding. After a subsequent review of the withheld and redacted documents, the State Department released 1 document in full that had been previously withheld in full, partially released 5 documents previously withheld in full, and referred 1 document previously withheld to the Commerce Department for inclusion in its Vaughn index.

FOIA Request CRRIF No. 06-127

The Commerce Department responded to FOIA request No. 06-127 via letter on January 19, 2006 transmitting approximately 250 pages of responsive materials, of which certain documents were withheld either in whole or part pursuant to exemption (b)(5). In the letter, the Commerce Department informed plaintiff that ICM had 30 calendar days within which to file an administrative appeal of the partial denial. ICM filed an appeal of the partial denial on February 21, 2006 via email received at 5:41 p.m. and facsimile received at 5:52 p.m.*fn6 The Commerce Department responded to ICM's appeal by letter of March 2, 2006, in which it informed ICM that the appeal was received after the aforementioned deadline and would therefore not be considered by the Commerce Department.

Analysis

Claim I: State Department Claim 04-606

The State Department is currently withholding, in whole or in part, 34 responsive documents pursuant to 5 U.S.C. § 552(b)(5), and 3 documents pursuant to 5 U.S.C. § 552(b)(4). Under 5 U.S.C. § 552(b)(5), otherwise responsive documents are exempt from disclosure if they are "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"; simply put, exemption (b)(5) covers those documents that are typically considered privileged within the context of civil discovery. Exemption ...


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