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Cause of Action v. Federal Trade Commission

United States District Court, District Circuit

August 19, 2013

CAUSE OF ACTION, Plaintiff,
v.
FEDERAL TRADE COMMISSION, Defendant.

MEMORANDUM OPINION

EMMET G. SULLIVAN, District Judge.

Cause of Action ("COA" or "plaintiff") brings this case regarding three requests it made to Defendant, Federal Trade Commission ("FTC"), under the Freedom of Information Act ("FOIA"). Plaintiff claims that the Defendant improperly denied Plaintiff's fee waiver requests because the disclosure of information it requested is in the public interest or because COA is a representative of the news media. Plaintiff also argues that the agency improperly withheld certain documents under FOIA's Exemption 5.[1]. Pending before the Court is Defendant's motion for summary judgment.

Upon consideration of the motion, Plaintiff's response, Defendant's reply, the applicable law, and the entire record, and for the reasons set forth below, Defendant's motion for summary judgment is GRANTED with respect to the denial of fee waivers. With respect to the withholding of documents pursuant to Exemption 5, Defendant's motion for summary judgment is GRANTED IN PART AND DENIED IN PART.

I. BACKGROUND

Plaintiff is a nonpartisan, nonprofit organization that "uses public advocacy and legal reform strategies to ensure greater transparency in government and protect taxpayer interests and economic freedom." Complaint ("Compl.") ¶ 5. The FTC publishes "Guides Concerning the Use of Endorsements and Testimonials in Advertising" ("Guides"). In 2009 the FTC published revisions to the Guides, to include social media and bloggers. Compl. ¶ 9. Following the revisions, the Plaintiff initiated three FOIA requests in 2011 and 2012. Id. ¶¶ 12, 25, 47. Plaintiff was interested in using the requested information to inform the public how the Guides' revisions would impact bloggers and social media authors, and consequently affect First Amendment rights to speech. Id. ¶ 11.

A. FOIA Request #1 (FOIA-2011-01431)

On August 30, 2011, Plaintiff submitted its first FOIA request to the FTC, assigned FOIA Request No. 2011-01431. Complaint Exhibit ("Compl. Ex.") 1, 2. The request sought (1) all records relating to the drafting, formulation, and revision of the Guides; (2) all records concerning the results of investigations into conduct by bloggers or social media authors that allegedly violated the Guides; (3) all records concerning the results of investigations into conduct by companies that related to alleged violations of the Guides; and (4) copies of any other requests for information made by outside groups through FOIA during the last two years regarding revisions to the Guides. Compl. Ex. 1. Plaintiff stated that the information requested is in the public interest, and accordingly requested a complete waiver of search and duplication fees. Id.

On September 22, 2011, the FTC denied Plaintiff's request for a public interest fee waiver. Compl. Ex. 2. On September 26, 2011, Plaintiff asked again for a public interest fee waiver and added a request for a "representative of the news media" fee waiver. Compl. Ex. 3. On October 7, 2011, the FTC denied both fee waiver requests. Compl. Ex. 4. In the denial, the FTC designated Plaintiff as an "Other (General Public)" requestor, which is only entitled to 100 pages of records free of charge in accordance with 16 C.F.R. § 4.8(b)(6). Id. The FTC released 100 pages of records to plaintiff at that time. Id.

On October 28, 2011, Plaintiff administratively appealed the FTC's denial of its public interest fee waiver. Compl. Ex. 5. On November 29, 2011, the FTC affirmed its denial of Plaintiff's request for a public interest fee waiver for this first FOIA request, informing Plaintiff of its ability to appeal the FTC's decision in district court. Compl. Ex. 6.

On December 12, 2011, Plaintiff requested that the FTC reconsider its denial of Plaintiff's appeal, reiterating its qualification for a public interest fee waiver for its first request. Compl. Ex. 9. On December 20, 2011, the FTC denied Plaintiff's appeal. Compl. Ex. 10.

On January 27, 2012, Plaintiff again requested that the FTC reconsider the denial of a public interest fee waiver for the first request and reiterated its qualification for a "representative of the news media" fee waiver. Compl. Ex. 12. On February 27, 2012, the FTC once again denied Plaintiff's request for both fee waivers. Compl. Ex. 13.

B. FOIA Request #2 (FOIA-2012-00227)

In response to the FTC's October 7, 2011 denial of its fee waiver request for its first FOIA request, Plaintiff made its second FOIA request on October 28, 2011, assigned FOIA Request No. 2012-00227. Compl. Ex. 5, 7. Plaintiff asked for (1) all FOIA requests where the FTC granted fee waivers under the public interest exception since January 1, 2009 and (2) documents referring or relating to the process in which the FTC determined the FOIA requests identified in (1) were within the fee waiver exception. Id. Plaintiff later requested a public interest fee waiver and "representative of the news media" fee waiver for this request on December 12, 2011. Compl. Ex. 8.

On January 6, 2012, the FTC denied Plaintiff both a public interest fee waiver and a "representative of the news media" fee waiver. Compl. Ex. 11. For purposes of determining fees associated with fulfilling plaintiff's FOIA request, the FTC once again designated Plaintiff as an "Other (General Public)" requester and therefore entitled to 100 pages out of 156 relevant pages free of charge, pursuant to 16 C.F.R. § 4.8(b)(6). Compl. Ex. 11; Defendant's Motion for Summary Judgment Exhibit ("Def.'s Mot. Summ. J. Ex.") T; Declaration of Nathaniel Fairbanks Gray ("Gray Decl.") ¶¶ 20-22. The FTC withheld eight documents consisting of twelve pages under Exemption 5. Def.'s Mot. Summ. J. Ex. T.

On January 27, 2012, Plaintiff appealed the FTC's denial of both its public interest fee waiver request for its second request and denial of its "representative of the news media" fee waiver request. Compl. Ex. 12. On February 27, 2012, the FTC affirmed its denial of both the public interest fee waiver request and the "representative of the news media" fee waiver request. Compl. Ex. 13. COA did not appeal the agency's withholding of documents pursuant to Exemption 5, and the agency did not address this issue in its letter denying the appeal. Compl. Exs. 12-13.

B. FOIA Request #3 (FOIA-2012-00687)

On January 27, 2012, Plaintiff made its third FOIA request, assigned FOIA Request No. 2012-00687. Compl. Ex. 12, 14. Plaintiff requested (1) all records relating to the drafting, formulation, and revision of the Guides Concerning Use of Endorsements and Testimonials in Advertising concerning social media authors and bloggers between January 1, 2009 and November 6, 2011; (2) all documents, including e-mail communications, referring or relating to FTC orders, decisions, memoranda, interpretations, instructions, statements of policy, or guidelines to staff for the purposes of evaluating fee waiver requests under the public interest exception; and (3) all documents, including e-mail communications, referring to or relating to the process the FTC used to deny Plaintiff a fee waiver. Compl. Ex. 12.

On March 19, 2012, the FTC informed COA that it had located ninety-five pages of information responsive to the request. Compl. Ex. 14; Declaration of Dione Jackson Stearns ("Stearns Decl.") ¶ 18; Gray Decl. at ¶¶ 24, 26. The FTC released free of charge seventy-nine pages relating to the second and third parts of the request, and withheld five documents consisting of sixteen pages under Exemption 5. Compl. Ex. 14; Def.'s Mot. Summ. J. Ex. T. Documents 9 and 10, consisting of one page each, are screenshots of Plaintiff's website which were taken by a paralegal under the direction of his supervising attorney and withheld under Exemption 5's deliberative process privilege and attorney work-product privilege. Id. Document 11, consisting of four pages, Document 12, consisting of four pages, and Document 13, consisting of six pages, are memoranda written by a paralegal to a superior and were also withheld under Exemption 5's deliberative process and attorney work-product privileges. Id. The FTC did not determine whether Plaintiff was entitled to a public interest fee waiver or a "representative of the news media" fee waiver for this FOIA request, explaining that it had only located ninety-five pages of responsive information, which COA was entitled to receive free of charge under 16 C.F.R. § 4.8(b)(6) even without a fee waiver. Compl. Ex. 14.

On April 4, 2012, Plaintiff appealed the withholding and asserted its entitlement to both a public interest fee waiver and a "representative of the news media" fee waiver. Compl. Ex. 15. On May 7, 2012, the FTC affirmed its withholding and declared the fee waiver issue moot. Compl. Ex. 16.

Plaintiff then initiated this suit on May 25, 2012. The FTC moved for summary judgment. The motion is ripe for resolution by the Court.

II. STANDARD OF REVIEW

Summary judgment is granted when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). In determining whether a genuine issue of fact exists, the court must view all facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Under FOIA, all underlying facts and inferences are analyzed in the light most favorable to the FOIA requester; as such, only after an agency proves that it has fully discharged its FOIA obligations is summary judgment appropriate. Moore v. Aspin, 916 F.Supp. 32, 35 (D.D.C. 1996) (citing Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983)). FOIA cases are typically and appropriately decided on motions for summary judgment. Gold Anti-Trust Action Comm., Inc. v. Bd. of Governors of Fed. Reserve Sys., 762 F.Supp.2d 123, 130 (D.D.C. 2011) (citations omitted).

In reviewing a motion for summary judgment under the FOIA, the court must conduct a de novo review of the record. See 5 U.S.C. § 552(a)(4)(B) (2012). The court may award summary judgment solely on the basis of information provided by the department or agency in affidavits or declarations that describe "the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); see also Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). Agency affidavits or declarations must be "relatively detailed and non-conclusory." SafeCard Services v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991). Such affidavits or declarations are accorded "a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents." Id. (internal citation and quotation omitted). An agency has the burden of demonstrating that "each document that falls within the class requested either has been produced, is unidentifiable, or is wholly [or partially] exempt from the Act's inspection requirements." Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978) (internal citation and quotation omitted).

III. ANALYSIS

The issues before this Court are (1) whether the FTC properly determined Plaintiff's qualification for public interest fee waivers and "representative of the news media" fee waivers for all three of Plaintiff's FOIA requests and (2) whether the FTC properly withheld documents under Exemption 5 for Plaintiff's second and third FOIA requests. The Court will address them in turn.

A. FEE WAIVERS

The disputes regarding COA's fee waivers fall into three categories. First, COA argues that the FTC improperly denied Plaintiff a public interest fee waiver for its first and second FOIA requests. Second, COA claims the FTC improperly denied Plaintiff a "representative of the news media" fee waiver for the same requests. Finally, COA argues that the FTC improperly declared the fee waiver issue moot for Plaintiff's third FOIA request.

For the reasons that follow, the Court finds that the FTC was justified in denying Plaintiff a fee waiver for its first and second FOIA requests. Finally, the Court finds that the FTC properly declared the fee waiver issue moot for Plaintiff's third request.

1. Public Interest Fee Waiver

Fee waivers are granted if the requested information is "in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of government and is not primarily in the commercial ...


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