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Carter, Fullerton & Hayes LLC v. Federal Trade Commission

October 25, 2007

CARTER, FULLERTON & HAYES LLC, PLAINTIFF,
v.
FEDERAL TRADE COMMISSION, DEFENDANT.



The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge

MEMORANDUM OPINION

Plaintiff, Carter, Fullerton & Hayes LLC, filed this suit pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 522, against defendant, the United States Federal Trade Commission ("FTC"), requesting that FTC disclose and release various documents related to the regulation of alcohol. Presently before the Court is the defendant's motion [5] for summary judgment. Upon consideration of the government's motion, the plaintiff's opposition thereto, and the reply, defendant's [5] motion for summary judgment shall be granted in part and denied in part without prejudice as to its renewal.

I. BACKGROUND

Plaintiff is a Virginia law firm that filed a FOIA request on behalf of a non-profit organization. Compl. ¶ 3. Defendant FTC is an independent administrative agency of the government of the United States. Id. at ¶ 4. By letter dated, October 13, 2006, plaintiff submitted a FOIA request to the FTC for all documents . . . relating to malt beverages; malt beverage manufacturers; malt beverage wholesalers/distributors; wine and distilled spirits manufacturers; wine and distilled spirits wholesalers/distributors; malt beverage, wine and distilled spirits retailers; any organizations representing the aforementioned and any entity communicating with FTC or any division or office thereof . . . on any aspect of the regulation of alcohol from January 2002 to present."

Id. at ¶ 5. Defendant FTC acknowledged receipt of plaintiff's request by letter dated October 20, 2006. See Fina Decl., ¶ 6. Also on October 20, 2006, FTC initiated a search for responsive documents in the Agency's Office of Policy Planning, the Bureau of Consumer Protection, and the Records and Filing Office.

Defendant FTC provided plaintiff with responsive documents on a rolling basis beginning on December 13, 2006. See Fina Decl., ¶ 14. Over a three-month period, the FTC provided plaintiff with four additional productions totaling 4,017 pages. See Compl. ¶ 10. The FTC withheld or redacted several hundred pages pursuant to FOIA Exemptions 2, 5, and 6, 5 U.S.C. §§ 552(b)(2), (b)(5), and (b)(6). See Fina Decl., ¶ 14.

By letter dated March 26, 2007, plaintiff appealed the FTC's withholding and redaction of documents and sought an explanation as to the delays in the production. See Compl. at ¶ 15. The defendant's general counsel granted plaintiff's appeal as to one document but otherwise affirmed the Agency's initial decision as to the documents that were withheld or redacted, and the cited exemptions. See Compl. at ¶ 15; Fina Decl., ¶ 17.

Plaintiff filed the instant FOIA action on June 12, 2007, seeking, inter alia, an order requiring defendant to "disclose the requested records in their entireties and make copies available to the plaintiff." See Compl. at 4. In connection with the instant action, defendant discovered additional responsive pages and released twelve pages that had initially been withheld or redacted. See Fina Decl., n.3. Defendant also discovered an additional seventy-one page responsive document, of which only one page was released. The remaining seventy pages were withheld pursuant to Exemption (b)(5). See id. at ¶ 18.

Defendant filed a motion for summary judgment on August 16, 2007. This was followed by a memorandum in opposition filed by plaintiff on August 27, 2007 and a subsequent reply by defendant filed September 14, 2007.

According to the index produced by defendant pursuant to Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973) (see Vaughn Index, Attach. 6 to Fina Decl.) as well as the declaration by Joan Fina (see Fina Decl.), certain responsive documents to plaintiff's FOIA request were redacted and/or withheld in full pursuant to Exemptions under 5 U.S.C. §§ 552(b)(2), (b)(5), and (b)(6). Defendant asserts that it properly applied the FOIA Exemptions to these documents. See Def.'s Mot. for Summ. J.

Plaintiff challenges the adequacy of the FTC's search. See Pl.'s Opp'n at 8-12. Plaintiff also asserts that defendant FTC "has wrongfully withheld the requested records." See Compl. at ¶ 21.*fn1 Plaintiff further alleges that the defendant's Vaughn index fails to adequately describe the withheld documents to allow the Court to determine the FTC's claims of exemption. See Pl.'s Opp'n at 12-15.

II. ANALYSIS

A. Legal Standard

Under Federal Rule of Civil Procedure 56(c), summary judgment is proper when the evidence in the record demonstrates that there are no disputed issues of material fact and that the moving party is entitled to judgment on the undisputed facts as a matter of law. FED. R. CIV. P. 56(c). A genuine issue of material fact exists if the evidence, when viewed in light most favorable to the non-moving party, "is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). However, a party must provide more than "a scintilla of evidence" in support of its position; the quantum of evidence must be such that a jury could reasonably find for the moving party. Id. at 252. The burden is on the movant to make the initial showing of the absence of a genuine issue of material fact in dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party is then entitled to a judgment as a matter of law if the non-moving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322.

For an agency to prevail on a motion for summary judgment in a FOIA action, it must prove that no genuine issue of material fact exists, viewing the facts in the light most favorable to the requester. Weisberg v. U.S. Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). The agency must demonstrate that "it has conducted a search reasonably calculated to uncover all relevant documents" to satisfy this burden. Id. at 1485 (citations omitted). Whether or not the agency's search is reasonably calculated depends on the adequacy of the search, not on the results; and the adequacy of an agency's search is determined on a case-by-case basis, guided by a standard of reasonableness. Id. As this Court has previously noted, reiterating the de-emphasis on results, "in assessing the reasonableness of a search, a court is not guided by whether the search actually uncovered every document or whether the search was exhaustive." Ferranti v. Bureau of Alcohol, Tobacco & Firearms, 177 F. Supp. 2d 41, 47 (D.D.C. 2001) (Lamberth, J.) (citation omitted). In order to prove this adequacy threshold has been met, the agency may rely upon "reasonably detailed, nonconclusory affidavits submitted in good faith." Id.

There is no set formula for a Vaughn index; so long as the agency provides the Court with materials providing a "reasonable basis to evaluate the claim of privilege," the precise form of the agency's submission-whether it be an index, a detailed declaration, or a narrative-is immaterial. Gallant v. Nat'l Labor Relations Bd., 26 F.3d 168, 173 (D.C. Cir. 1994) (internal citations omitted). While Vaughn indices are generally discretionary, affidavits alone may not suffice once it is established that records and documents are in a governmental agency's possession. Miscavige v. Internal Revenue Serv., 2 F.3d 366, 368 (11th Cir. 1993) (citing Stephenson v. Internal Revenue Serv., 629 F.2d 1140, 1144-45 (5th Cir. 1980)). Therefore, it is in a governmental agency's best interest to provide a Vaughn index when claiming privilege, should it seek to satisfy its disclosure burden.

Further, the agency must detail what proportion of the information in a document is non-exempt and how that material is dispersed throughout the document. Mead Data Cent., Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977). Any non-exempt information that is reasonably segregable from the requested records must be disclosed. See Oglesby v. U.S. Dep't of Army, 79 F.3d 1172, 1178 (D.C. Cir. 1996). In addition, district courts are required to consider segregability issues sua sponte even when the parties ...


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