United States District Court, District of Columbia
CHRISTOPHER R. COOPER, UNITED STATES DISTRICT JUDGE
spring of 2017, the Federal Communications Commission
(“FCC” or “Commission”) promulgated a
proposed rule to establish regulations for broadband internet
service providers. Captioned “Restoring Internet
Freedom, ” the rulemaking sought to repeal prior
regulations promoting “net neutrality”-the
principle that internet service providers afford equal access
to all internet-enabled data. The proposal received
significant public attention, garnering an unprecedented
twenty-four million public comments on the administrative
record. The number of fraudulent, duplicative, or otherwise
dubious comments was equally unprecedented. These
questionable comments have drawn the attention of FCC
Commissioners, Members of Congress, and journalists including
Jason Prechtel, the plaintiff in this case.
filed Freedom of Information Act (“FOIA”)
requests seeking details about the use of two electronic
comment-submission tools that the FCC had enabled to
facilitate public participation in the regulatory process:
comma-separated value (“.CSV”) files and an
Application Programming Interface (“API”). These
tools allowed members of the public to comment on the
proposal without going directly to the Commission's
website and accessing its comment platform (or Electronic
Comment Filing System (“ECFS”)). A .CSV file is a
template provided by the FCC-essentially, a spreadsheet in
which every row contains a separate comment-that allows an
individual or organization to solicit and compile multiple
comments and upload them into ECFS in one fell swoop. These
submissions are sometimes referred to as “bulk
comments.” By way of example, if an organization wanted
its membership to submit comments supporting the FCC's
proposed actions, it might ordinarily be forced to encourage
each member to access the ECFS website and submit an
individual comment. The bulk comment submission process
enabled the organization to collect its members'
comments, format them into the .CSV spreadsheet, and submit
them all at once by transmitting that spreadsheet to ECFS.
in turn, is a mechanism that facilitates communication
between ECFS and other websites. As relevant here, it allows
website developers to place comment-submission tools on
third-party websites, meaning that visitors to those websites
can submit comments to ECFS directly from those websites. For
example, if a group opposing the Commission's proposed
actions wanted visitors to its website to submit comments
into the record, it might ordinarily include a link to ECFS,
forcing a visitor to leave its website to submit a comment.
The API instead enabled the group to place a comment form
directly on its own website, allowing a visitor to type a
comment and submit it into ECFS without leaving the site.
Those seeking to host an API capable of communicating with
ECFS must register for a “key, ” which confirms
to ECFS that the information being transmitted comes from a
registered source-essentially, a unique code that opens the
door to ECFS so a comment can be left inside.
filed two FOIA requests: one with the Commission and one with
the General Services Administration (“GSA”), the
executive agency that manages the Commission's API
system. See Compl. Ex. A; Pl.'s Statement of
Undisputed Material Facts (“SUMF”) Ex. B. In this
suit, Prechtel challenges how the agencies handled his
requests. Specifically, he challenges the adequacy of the
FCC's search for the requested records, its invocation of
several statutory exemptions to withhold or redact those
records, and the GSA's constructive denial of his FOIA
request. Am. Compl. ¶¶ 24, 27-28; Pl.'s Mot.
Summ. J. & Opp'n at 1. The Court addresses only the
second challenge, aimed at the Commission's withholdings.
Prechtel belatedly served the GSA and it has not had the
opportunity to submit an affidavit clarifying its response to
his FOIA request. Accordingly, the Court reserves judgment on
the GSA's actions. And because a GSA affidavit should
clarify ownership of the API keys, which implicates the
adequacy of the FCC's search, the Court also reserves
judgment on Prechtel's challenge to that search. The
Court will thus deny without prejudice all parties'
motions for summary judgment on those issues. Regarding
Prechtel's challenge to the Commission's
withholdings: The Court will grant the Commission's
motion for summary judgment on its withholding of certain
privileged emails and its server logs; grant Prechtel's
motion for summary judgment on the email addresses used to
submit .CSV files; and direct the parties to confer regarding
the .CSV files themselves.
4, 2017, Prechtel filed FOIA requests with the GSA and the
FCC. Am. Compl. ¶¶ 9, 16. His request to the GSA
sought two sets of documents: (1) all public API keys used to
submit online comments relating to the “Restoring
Internet Freedom” proceeding, including the associated
registration names and email addresses, and copies of all
data files submitted through those API keys; and (2) logs of
all dates and times that those API keys were used to submit
comments. Id. ¶ 9. Prechtel's FOIA request
to the FCC sought the same information as well as: (1)
“the email addresses associated with .CSV comment
uploads, along with all .CSV files uploaded in response to
[the] Proceeding”; (2) “logs of all dates and
times the email addresses submitted comments”; and (3)
“all email inquiries to ECFSHelp@fcc.gov regarding .CSV
comment submissions to the Proceeding.” Id.
5, the GSA informed Prechtel that the requested files were
not within its “jurisdiction.” Pl.'s SUMF Ex.
B, at 1 (GSA response to Prechtel's FOIA request). After
several email exchanges, the GSA elaborated that the FCC was
the “API owner” and therefore that Prechtel's
request was “more appropriate[ly]” addressed to
the FCC. Id. at 7.
receiving no substantive response from the FCC, Prechtel
filed this suit on September 7, 2017. See Compl.;
id. ¶¶ 9-12. Twenty days later, the
Commission released fifteen pages of documents responsive to
the fifth part of his request-that seeking communications to
the ECFSHelp@fcc.gov “help desk” email address.
See Defs.' SUMF Ex. B, at 2 (FCC response to
Prechtel's FOIA request). It redacted several emails
within these records and withheld all records responsive to
other aspects of Prechtel's request, invoking several of
FOIA's statutory exemptions to justify its redactions and
withholdings. Id. at 2-4. Further, it indicated that
it did not maintain documents responsive to Prechtel's
request for the API keys and associated information,
asserting that the GSA maintains these records. Id.
parties filed cross-motions for summary judgment, after which
Prechtel amended his complaint to add the GSA as a defendant.
See Am. Compl. ¶¶ 9-15, 21-24. However,
Prechtel did not serve the GSA until after briefing had
commenced. The GSA has joined the FCC's motion for
summary judgment. But it has not provided an affidavit or
declaration explaining its response to Prechtel or the extent
to which it is in tension with the FCC's response
regarding API keys and attendant information. The Court held
a telephonic status conference with the parties regarding
this issue, after which Prechtel served the GSA. Based on the
status conference, the Court expects that the GSA will
provide a declaration detailing how it handled Prechtel's
FOIA request, which will clarify the issues surrounding the
API keys and associated information. Consequently, the Court
will deny without prejudice all parties' motions for
summary judgment on matters not resolved in this opinion. The
parties may renew such motions in the future, if necessary.
requires federal executive agencies to produce their records
upon request unless one of the Act's nine exemptions
protects those records from disclosure. See 5 U.S.C.
§ 552(b). These exemptions “balance the
public's interest in governmental transparency against
‘legitimate governmental and private interests [that]
could be harmed by release of certain types of
information.'” United Techs. Corp. v. DOD,
601 F.3d 557, 559 (D.C. Cir. 2010) (alteration in original)
(quoting Critical Mass. Energy Project v. Nuclear
Regulatory Comm'n, 975 F.2d 871, 872 (D.C. Cir.
1992) (en banc)). “But these limited exemptions do not
obscure the basic policy that disclosure, not secrecy, is the
dominant objective of the Act.” Dep't of Air
Force v. Rose, 425 U.S. 352, 361 (1976). Accordingly,
when a plaintiff challenges an agency's withholding of
records, the agency must show that one of FOIA's
exemptions applies. ACLU v. DOD, 628 F.3d 612, 619
(D.C. Cir. 2011).
disputes are generally resolved on cross-motions for summary
judgment. In evaluating each motion, the Court must view the
record in the light most favorable to the non-movant. The
agency may satisfy its burden of showing that a FOIA
exemption applies through an affidavit or declaration that
“describes the justifications for withholding the
information with specific detail, demonstrates that the
information withheld logically falls within the claimed
exemption, and is not contradicted by contrary evidence in
the record or by evidence of the agency's bad
Commission withheld all or part of three categories of
records responsive to Prechtel's request: email exchanges
between agency staff regarding how to respond to an inquiry
to ECFSHelp@fcc.gov; .CSV files used to submit bulk comments
and the email addresses of those who submitted them; and
Commission server logs detailing the dates and times that
.CSV files were submitted. The Court will evaluate each
withholding in turn.
requested all email inquiries to the Commission's
ECFSHelp@fcc.gov “help desk” email address
regarding .CSV submissions to the Restoring Internet Freedom
proceeding. Am. Compl. ¶ 16. The Commission released
fifteen pages of responsive documents and invoked the
deliberative process privilege under FOIA Exemption 5 to
redact certain email threads. See Defs.' SUMF Ex.
B, at 2. The Court concludes that this withholding was
5 allows agencies to withhold “inter-agency or
intra-agency memorandums or letters that 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).
In other words, it shields information that would be
“normally privileged in the civil discovery
context.” NLRB v. Sears, Roebuck & Co.,
421 U.S. 132, 149 (1975).
Commission invoked the deliberative process privilege
protected by Exemption 5. An agency invoking that privilege
must show that withheld documents are both
“predecisional” and “deliberative.”
Coastal States Gas Corp. v. Dep't of Energy, 617
F.2d 854, 866 (D.C. Cir. 1980). Predecisional communications
are those that “occurred before any final agency
decision on the relevant matter.” Nat'l Sec.
Archive v. CIA, 752 F.3d 460, 463 (D.C. Cir. 2014).
Deliberative communications are those that “reflect
the give-and-take of the consultative process.”
Coastal States, 617 F.2d at 866.
to the Commission's declaration, the emails contain
“internal deliberations among IT staff regarding how to
respond” to an inquiry about comment submissions, and
“include a back-and-forth conversation regarding the
best method for handling [the] . . . request, including
options considered and discarded.” Decl. of Ryan J.
Yates Supp. Defs.' Mot. for Summ. J. (“First Yates
Decl.”) ¶ 15. The agency withheld the exchange
after concluding “that its release would chill the
candid exchange of ideas among staff.” Id.
This is precisely what the deliberative process privilege is
designed to protect: the agency staff's ability to have
candid discussions and weigh options before making a final
decision. See, e.g., Petroleum Info. Corp. v.
Dep't of Interior, 976 F.2d 1429, ...