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Comptel v. Federal Communications Commission

United States District Court, District of Columbia

May 20, 2013

COMPTEL, Plaintiff,

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For COMPTEL, Plaintiff: Mary Catherine Albert, LEAD ATTORNEY, COMPTEL, Washington, DC.

For FEDERAL COMMUNICATIONS COMMISSION, Defendant: Charlotte A. Abel, LEAD ATTORNEY, UNITED STATES ATTORNEY'S OFFICE, Washington, DC; Wynne Patrick Kelly, LEAD ATTORNEY, U.S. Attorney's Office, Civil Division, Washington, DC.

For AT& T INC., Intervenor Defendant: Brendan J. Crimmins, KELLOGG, HUBER, HANSEN, TODD, EVANS & FIGEL, PLLC, Washington, DC.

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Royce C. Lamberth, Chief United States District Judge.

This action concerns a Freedom of Information Act (" FOIA" ) request by COMPTEL for records held by the Federal Communications Commission (" FCC" ). Before the Court are plaintiff COMPTEL's [70] and defendant FCC's [71] Cross-Motions for Summary Judgment. [1] In general, the FCC seeks a judgment

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that it conducted a reasonable search, produced all responsive documents, and properly withheld information under statutory FOIA exemptions. COMPTEL seeks a judgment that the FCC has failed to conduct an adequate search, has improperly withheld documents, and has violated the FOIA by engaging in unreasonable delays. It also seeks an order enjoining the FCC from withholding requested records.

The Court will GRANT the FCC's motion except as to documents 64a, 64b, 64e, and 64f; the Court will GRANT COMPTEL's motion as to those four documents and order their release but will otherwise DENY COMPTEL's motion. Specifically, the Court holds that the FCC performed an adequate search and that it has produced all responsive documents and properly withheld information on all documents except documents 64a, 64b, 64e, and 64f. The Court declines to grant COMPTEL's request for additional declaratory and injunctive relief.


The facts of this case are described in greater detail in the Court's December Memorandum Opinion. See COMPTEL v. FCC, No. 06-1718, 910 F.Supp.2d 100, 2012 WL 6604528, at *5 (D.D.C. 2012). In short, COMPTEL filed a FOIA request with the FCC in April 2005 seeking " all pleadings and correspondence" contained in File No. EB-04-IH-0342, which was opened by the FCC Enforcement Bureau during a 2004 investigation of SBC Communications, Inc., now AT& T. [2] The FCC terminated its investigation upon the adoption of a Consent Decree.

The FCC notified COMPTEL in July 2005 that it was reviewing about 3200 pages of documents " potentially responsive" to the FOIA request. In August 2005, the FCC granted in part and denied in part COMPTEL's FOIA request. The agency withheld certain information 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." The FCC also withheld the names of individuals identified in SBC's submissions pursuant to Exemptions 6 and 7(C), and drafts of enforcement bureau " pleadings and correspondence, and internal memoranda and emails discussing the SBC investigation" pursuant to Exemption 5.

The FCC stated that it would release any non-exempt documents to COMPTEL if AT& T did not file an application for review. Both AT& T and COMPTEL timely filed applications for review. After the FCC failed to act on the applications within the 20-day statutory period, COMPTEL filed this action on October 5, 2006 to enjoin the FCC from withholding the requested documents. 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."

Judge Kennedy, then assigned to the case, denied the first motions for summary judgment without prejudice and stayed the case until final agency action was completed. This Court denied a second set of cross motions for summary judgment for several reasons. See COMPTEL, 2012 WL 6604528. First, there was a fact

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dispute as to whether the FCC conducted a search in response to COMPTEL's 2007 FOIA request; the FCC had not demonstrated that it conducted an adequate search in response to that request. Second, the FCC failed to sufficiently justify withholding information under various FOIA exemptions. Because the Court lacked adequate information by which to grant summary judgment for COMPTEL, it denied without prejudice the parties' motions and directed the FCC to file an amended declaration and Vaughn index to address the issues identified in the Court's Memorandum Opinion.

After submission of the revised declaration and Vaughn index, ECF No. 64, the parties filed a third set of cross-motions for summary judgment. With these motions, the parties have considerably narrowed the issues in dispute. The present controversy concerns only the adequacy of the search performed in response to the 2007 FOIA request, corresponding redactions made pursuant to Exemptions (b)(4) and (b)(5), and whether additional declaratory and injunctive relief for COMPTEL is warranted.


A. FOIA Generally

The Freedom of Information Act, 5 U.S.C. § 552, requires federal agencies to make certain records available to any person upon request. The Agency must 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). 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, 261 U.S.App. D.C. 301 (D.C. Cir. 1987).

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

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); see also 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, 395 U.S.App. D.C. 155 (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

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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, 337 U.S.App. D.C. 343 (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, 157 U.S.App. D.C. 340 (D.C. Cir. 1973). While agency affidavits are accorded a presumption of good faith, SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200, 288 U.S.App. D.C. 324 (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. ...

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