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COMPTEL v. Federal Communications Commission

United States District Court, District of Columbia

December 19, 2012

COMPTEL, Plaintiff,
v.
FEDERAL COMMUNICATIONS COMMISSION, Defendant.

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Mary Catherine Albert, Washington, DC, for Plaintiff.

Charlotte A. Abel, Wynne Patrick Kelly, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

ROYCE C. LAMBERTH, Chief Judge.

This action concerns a Freedom of Information Act (" FOIA" ) request by COMPTEL for certain records held by the Federal Communications Commission (" FCC" ). Before the Court are plaintiff COMPTEL's [52] and defendant FCC's [53] Cross-Motions for Summary Judgment.[1] In general, COMPTEL seeks an order enjoining the FCC from withholding the records it requested and compelling the FCC to produce unredacted versions of those records, and a declaratory judgment that the FCC has violated the FOIA. The FCC seeks a judgment that it conducted a reasonable search, produced all responsive documents, and properly withheld information under statutory FOIA exemptions.

The Court cannot grant summary judgment to either party at this time. First, there is a factual dispute as to whether the FCC conducted a search in response to COMPTEL's most recent FOIA request. More importantly, the FCC has not demonstrated that it conducted an adequate search in response to that request. This alone precludes summary judgment for the FCC. However, even if the FCC had demonstrated that it conducted an adequate search, the agency has not provided sufficient detail regarding its justifications

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for withholding certain information under various FOIA exemptions. As the D.C. Circuit has reiterated numerous times, agencies cannot rely on " conclusory and generalized allegations of exemptions," as it has done here. Finally, in response to an administrative order, the FCC released additional responsive information to COMPTEL after the pending motions for summary judgment were filed and ripe. However, the FCC has not amended its submissions to the Court to account for this release and the parties appear to disagree about whether the FCC has satisfied its obligations under the administrative order. Because the Court cannot determine which information has now been released and which withheld, it cannot evaluate the FCC's remaining redactions.

Although the FCC has not met its burden for summary judgment, the Court also lacks sufficient information by which to grant summary judgment for COMPTEL. As is often the practice with FOIA cases in which the record is not sufficiently developed, the Court will DENY WITHOUT PREJUDICE the parties' motions. The FCC is directed to file an amended declaration and Vaughn index to address the issues identified in this Opinion. Upon submission of the revised declaration and index, the parties may re-file their cross-motions, as appropriate. A separate Order consistent with this Opinion shall issue this date.

I. BACKGROUND AND PROCEDURAL HISTORY

COMPTEL is a non-profit trade association whose members are communications service providers and their supplier partners. Pl.'s Mem. P. & A. in Supp. Summ. J. 1, ECF No. 52 [hereinafter Pl.'s Mem P. & A.]. COMPTEL first filed an electronic FOIA request with the FCC in April 2005. Although COMPTEL has not provided the Court with a copy of the request, the parties agree that it sought " all pleadings and correspondence" contained in File No. EB-04-IH0342, which was opened by the FCC Enforcement Bureau (" EB" ) to investigate SBC Communications, Inc., now AT & T.[2] Pl.'s Stmt. Mat. Facts ¶¶ 1-2, ECF No. 52-1 [hereinafter Pl.'s SMF]; Def.'s Stmt. Mat. Facts in Opp'n to Pl.'s Stmt. Mat. Facts ¶¶ 1-2. In August 2004, the SBC had voluntarily reported to the FCC that it may have violated the Commission's rules in connection with SBC's receipt of universal service funds for Connecticut public schools under the E-Rate, or Education-Rate program. Pl.'s SMF ¶ 2. As part of the EB's subsequent investigation, SBC provided the FCC with a variety of documents which included cost and pricing data, billing and payment dates, and other information. Lancaster Suppl. Decl. ¶ 4, July 25, 2012, ECF No. 53-2. The FCC terminated its investigation in December 2004 upon issuing an Order adopting a Consent Decree. Pl.'s SMF ¶ 3.

After COMPTEL requested records of the investigation, SBC sought confidential treatment, under FOIA Exemptions 4 and 7(C), of the materials it provided to the FCC. Pl.'s SMF ¶ 4. The FCC then notified COMPTEL via email that it was reviewing about 3200 pages of documents " potentially responsive" to the FOIA request. Id., Ex. 2.

In August 2005, the FCC granted in part and denied in part COMPTEL's FOIA request. In response to SBC's request for confidential treatment, the FCC agreed to withhold certain information in

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SBC submissions pursuant to Exemption 4, including " costs and pricing data, [SBC's] billing and payment dates, and identifying information of SBC's staff, contractors, and the representatives of its contractors and customers." Lancaster Suppl. Decl. ¶ 4. The FCC also withheld the names of individuals identified in SBC's submissions pursuant to Exemptions 6 and 7(C), and drafts of EB " pleadings and correspondence, and internal memoranda and emails discussing the SBC investigation" pursuant to Exemption 5. Id. The FCC stated that it would release any non-exempt documents to COMPTEL within ten days if AT & T failed to file an application for review with the FCC's Office of General Counsel. Pl's SMF ¶ 9. Both AT & T and COMPTEL timely filed applications for review. Lancaster Suppl. Decl. ¶ 4.

The FCC failed to act on the applications for review within the 20-day statutory period, 5 U.S.C. § 552(a)(4)(G), (a)(6)(A)(ii), and COMPTEL filed this action on October 5, 2006 to enjoin the FCC from withholding the documents requested. Pl.'s SMF ¶ 11; Compl., ECF No. 1. AT & T intervened and cross-motions for summary judgment were filed by all parties in February 2007. When the FCC argued that COMPTEL had waived its request for certain documents, COMPTEL filed a second FOIA request on April 16, 2007 for all documents " referenced in the Supplemental Declaration of Judy Lancaster [and] all correspondence with any third party contained in FCC Case file no. EB-04-IH-0342." See In the Matter of COMPTEL, 27 F.C.C.R. 7705, 2012 WL 2354823 (June 19, 2012). This 2007 FOIA request appears to be the only request at issue in the pending cross-motions. At least in theory, though, it should have resulted in a response that is at least co-extensive with a response to the 2005 request.[3]

Because the FCC administrative review process remained pending, Judge Kennedy, then assigned to the case, denied without prejudice the parties' cross-motions for summary judgment and stayed the case until final agency action was completed. ECF No. 32; Minute Order, Mar. 5, 2008. The FCC later denied AT & T's application for review, finding that Exemption 7(C) may protect the personal privacy interests of individuals identified in law enforcement documents, but not the privacy interests of corporations. Pl.'s SMF ¶ 17. AT & T appealed to the Third Circuit which ruled for them. AT & T v. FCC, 582 F.3d 490 (3rd Cir.2009). In March 2011, the Supreme Court reversed, holding that Exemption 7(C) does not protect privacy interests of corporations and that AT & T could not invoke the exemption to shield documents provided to FCC during the investigation. FCC v. AT & T, __ U.S. __, 131 S.Ct. 1177, 179 L.Ed.2d 132 (2011). When the FCC failed to release documents to COMPTEL after this decision, COMPTEL filed, and the Court granted, a motion to lift the stay in the instant litigation.

The FCC has given varying estimates of the number of pages of material responsive to COMPTEL's FOIA request. While an early FCC email response to

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COMPTEL identified 3200 pages of " potentially responsive" documents, the FCC later significantly reduced this estimate. At the time of the 2007 cross-motions for summary judgment, the FCC estimated that there were approximately 508-544 pages of responsive documents, including 191-237 pages which the FCC planned to withhold under Exemption 5.

On June 3, 2011, the FCC sent COMPTEL 362 pages of redacted documents, which appear to include all of the information for which Exemption 5 was not invoked, along with fifteen pages of material that had been identified as protected by Exemption 5.[4] On November 1, 2011, the FCC released an additional 193 pages (65 documents), bringing the total to 555 pages of material released. Redactions were made to these materials pursuant to Exemptions 4, 5, 6, and 7(C). The present controversy relates to this November 2011 release of 193 pages.

COMPTEL filed a second administrative application for review of the FCC's redactions to these documents on November 11, 2011. Pl.'s SMF ¶ 23. On June 19, 2012, the FCC issued a Memorandum Opinion and Order denying in part and granting in part the application for review. Specifically, it ordered EB to provide the names of certain SBC and FCC staff that had been publicly identified and thus had been redacted in error under Exemptions 6 and 7(C).

The instant cross-motions for summary judgment were filed in July 2012. The FCC did not release the additional information required by the June 2012 Order until the cross-motions were pending and ripe for review. Def.'s Notice Suppl. Release Info., ECF No. 58. COMPTEL replied to that supplemental release, asserting that the FCC had (strangely) included new redactions of information previously released and that it did not appear to have released information the Order required to be provided. Pl.'s Reply to Def.'s Notice Suppl. Release Info., ECF No. 59 [hereinafter Pl.'s Reply to Release]. The FCC has not filed a supplemental declaration or revised Vaughn index to account for the latest release of information.

II. LEGAL STANDARD

A. FOIA Generally

The Freedom of Information Act, 5 U.S.C. § 552, requires federal agencies to make certain records publicly available. FOIA requires that agencies, upon request, " make the records promptly available to any person." Id. § 552(a)(3)(A). The Agency shall determine within twenty business days of receipt whether to comply with a request and shall immediately notify the requester of its determination and reasons therefore. Id. § 552(a)(6)(A). However, failure to meet the time limit is not a basis for denying an agency summary judgment. See Tijerina v. Walters, 821 F.2d 789, 799 (D.C.Cir.1987).

FOIA provides nine exemptions from the disclosure requirement which are to be " narrowly construed."

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FBI v. Abramson, 456 U.S. 615, 630, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982). Four of these, Exemptions 4, 5, 6, and 7(C), are relevant to this case and described in greater detail below.

Should an agency deny a FOIA request, in whole or in part, the agency must " make a reasonable effort" to estimate and provide to the requester " the volume of any requested matter the provision of which is denied...." 5 U.S.C. § 552(a)(6)(F). Additionally, to the extent an exemption is invoked, any " reasonably segregable portion of a record shall be provided" after deletion of the exempt portions. Id. § 552(b). The " amount of information deleted, and the exemption under which the deletion is made, shall be indicated on the released portion of the record...." Id. In FOIA litigation, district courts must consider segregability sua sponte even when the parties have not raised such claims. Trans-Pac. Policing Agreement v. Customs Serv., 177 F.3d 1022, 1028 (D.C.Cir.1999).

B. Summary Judgment and FOIA

Summary judgment should be granted 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 judgment as a matter of law." Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). FOIA cases are typically and appropriately decided on motions for summary judgment. Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C.Cir.2011).

By statute, the agency bears the burden in litigation to justify withholding any records. 5 U.S.C. § 552(a)(4). This is in part because of the " strong presumption in favor of disclosure," Dep't of State v. Ray, 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991), and because FOIA requesters face an information asymmetry given that the agency possesses the requested information and decides whether it should be withheld or disclosed. See Judicial Watch, Inc. v. FDA, 449 F.3d 141, 145-46 (D.C.Cir.2006). Thus, even where the requester has moved for summary judgment, the Government " ‘ ultimately [has] the onus of proving that the [documents] are exempt from disclosure.’ " Pub. Citizen Health Research Grp. v. FDA, 185 F.3d 898, 904-05 (D.C.Cir.1999) (quoting Nat'l Ass'n of Gov't Emps. v. Campbell, 593 F.2d 1023, 1027 (D.C.Cir.1978)).

To satisfy its burden to show the applicability of an exemption, an agency may rely on detailed affidavits, declarations, a Vaughn index, in camera review, or a combination of these tools. A Vaughn index in combination with agency declarations is the typical way agencies provide courts with the information required. A Vaughn index correlates each withheld document, or portion thereof, with a particular FOIA exemption and the justification for nondisclosure. Vaughn v. Rosen, 484 F.2d 820, 827 (D.C.Cir.1973). While agency affidavits are accorded a presumption of good faith, SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.Cir.1991), they must " ‘ provide a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply.’ " Judicial Watch v. FDA, 449 F.3d at 146 (citation omitted); see also EPA v. Mink, 410 U.S. 73, 86, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973). The agency should " disclose as much information as possible without thwarting the exemption's purpose." Hall v. Dep't of Justice, 552 F.Supp.2d 23, 27 (D.D.C.2008) (quoting King v. Dep't of Justice, 830 F.2d 210, 224 (D.C.Cir.1987)). Again, " ‘ conclusory

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and generalized allegations of exemptions' are unacceptable." Morley v. CIA, 508 F.3d 1108, 1115 (D.C.Cir.2007) (citations omitted); see also Vaughn, 484 F.2d at 826.

III. DISCUSSION

A. Jurisdiction


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