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Carter, Fullerton & Hayes, LLC v. Federal Trade Commission

July 24, 2009

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



The opinion of the court was delivered by: Royce C. Lamberth, Chief Judge

MEMORANDUM OPINION

This matter comes before the Court on defendant's Second Motion [31] for Summary Judgment. In sum, plaintiff Carter, Fullerton & Hayes, LLC brought the original action pursuant to the Freedom of Information Act, 5 U.S.C. § 552, for injunctive relief and seeking the disclosure and release of agency records withheld from plaintiff by defendant Federal Trade Commission ("FTC" or "defendant"). Plaintiff's FOIA request essentially seeks the disclosure of documents pertaining to FTC's involvement with alcohol issues and the alcohol industry.

Defendant's first motion for summary judgment was granted in part and denied in part. This Court denied this summary judgment motion without prejudice with regard to its segregability analysis as to information withheld in full pursuant to Exemption 5 of the Freedom of Information Act ("FOIA"). Defendant's summary judgment motion was granted as to all other claimed exceptions. The Court further allowed defendant to submit a new motion for summary judgment containing a more detailed explanation as to why no factual portions can be segregated from the documents withheld in full under FOIA Exemption 5. Defendant's Second Motion [31] for Summary Judgment is now before the Court. Before the defendant filed the instant motion, it located and produced further documents between June, 2008 and August, 2008 in response to plaintiff's FOIA requests.

Upon consideration of defendant's motion, plaintiff's opposition, defendant's reply brief, the applicable law, and the entire record herein, the Court concludes that defendant's motion shall be granted. The Court's reasoning is set forth below.

I. LEGAL STANDARD

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Mills v. Winter, 540 F. Supp. 2d 178, 183 (D.D.C. 2008) (Friedman, J.); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995).

To determine if there is any genuine issue of material fact, this Court is to view the record, facts, and all reasonable inferences in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157--59 (1970). A genuine issue of material fact is one which could affect the outcome of the litigation. Celotex, 477 U.S. at 322; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Summary judgment may be granted in a FOIA case when, viewing the facts in the light most favorable to the plaintiff, there is no genuine issue of material fact with regard to the agency's compliance with the Freedom of Information Act. Steinberg v. Department of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994) (citing Weisberg v. Department of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984), reh'g denied, 763 F.2d 1436 (D.C. Cir. 1985)).

II. DISCUSSION

A. Defendant's FOIA Exemption 5 Segregability Analysis With Regard to Documents Withheld In Full From Its Original Production

Defendant claimed in its first motion for summary judgment that documents withheld in full pursuant to FOIA Exemption 5 are nonsegregable. Exemption 5 does not require the disclosure of "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). FOIA requires that "[a]ny reasonably segregable portion of a record shall be provided.after deletion of the portions which are exempt." 5 U.S.C. § 552(b). This Court gave defendant a second opportunity to "sufficiently explain why there was no reasonable means of segregating factual material from exempt material." (Mem. Op. [12] at 21.) Defendant has attempted to do so in its Second Motion for Summary Judgment.

Defendant argues that the FTC conducted a reasonable search, provided all responsive and non-exempt materials, and disclosed reasonably segregable factual portions of these documents. When searching for requested documents pursuant to FOIA, "the agency must show that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested." Campbell v. Department of Justice, 164 F.3d 20, 27 (D.C. Cir. 1998), quoting Oglesby v. Department of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). This Court found that the FTC engaged in the requisite good faith effort. The actual results are less important than the search itself, and "[a]n agency fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was 'reasonably calculated to uncover all relevant documents.'" Valencia-Lucena v. United States Coast Guard, 180 F.3d 321, 325(D.C. Cir. 1999) (quoting Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990)).

Defendant further maintains that it has met its obligations under FOIA and is thus entitled to judgment as a matter of law. To withhold documents responsive to a FOIA request, an agency must show that the withheld materials fall squarely within one of FOIA's statutory exemptions. Weisberg v. Department of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1984). In order to make such a showing, an agency may submit affidavits and declarations describing the documents withheld and the statutory basis for the withholdings. See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir 1973). Vaughn essentially requires agencies to prepare an itemized index correlating withheld documents or portions of documents with a FOIA exemption as well as the relevant part of the agency's nondisclosure justification.

In addition, and central to defendant's summary judgment motion, any reasonably segregable portions of documents must be disclosed once the exempt portions have been redacted. Oglesby v. Department of the Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996). "[I]t is error for a district court to simply approve the withholding of an entire document without entering a finding on segregability or the lack thereof." Schiller v. NLRB, 964 F.2d 1205, 1210 (D.C. Cir. 1992). Defendant's Second Motion for Summary Judgment has attempted to fix the Court's observation that "defendant's generic declaration that deliberative factual content is inextricably intertwined with the basis for withholding and is therefore, not segregable, does not constitute a sufficient explanation of segregability."

(Mem. Op. [12] at 21.) FTC's second supplementary declaration and Vaughn Index do, indeed, provide additional information about documents withheld in their entirety beyond simple assertions that the factual information is inextricably intertwined with exempt portions.

To show that all reasonably segregable materials have been released, an agency must provide a reasonably "detailed justification" rather than mere "conclusory statements." Mead Data Center, Inc. v. Department of the Air Force,566 F.2d 242, 261 (D.C. Cir. 1977). This is to assist the Court in conducting de novo review of defendant's Vaughn Index. After defendant's submission of its Second Motion for Summary Judgment, plaintiff still argues that "defendant has not provided a detailed justification as to why the FTC is incapable of segregating out the factual information contained in the documents at issue." (Pl. Mem. in Opp. to Def.'s Second Mot. for Summ. J., 11.) The Court will now address defendant's segregability analysis as to previously produced responsive documents.

Defendant's simple assertion that certain factual information withheld is "inextricably intertwined" is not a proper "detailed justification" for nonsegregability. Johnson v. Executive Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002). However, factual information may in fact be "inextricably intertwined with exempt portions" so that disclosure is not required. Mead Data Center, 566 F.2d at 260; Wolfe v. Dep't of Health and Human Services, 839 F.2d at 768, 774-76 (D.C. Cir. 1988). This is to prevent the potentially harmful effect the release of such information could have on agency deliberations. In addition, "factual material is itself privileged when it appears within documents that are attorney work-product. If a document is fully protected as work product, then segregability is not required." Judicial Watch, Inc. v Dep't of Justice, 432 F.3d 366, 371 (D.C. Cir. 2005). According to the Second Declaration of Joan Fina, the supervisory attorney for ...


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