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Prechtel v. Federal Communications Commission

United States District Court, District of Columbia

September 13, 2018




         In 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.

         Prechtel 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.

         An API, 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.

         Prechtel 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.

         I. Background

         On June 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 regarding .CSV comment submissions to the Proceeding.” Id. ¶ 16.

         On June 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.

         After 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 “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. at 1-2.

         The 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.

         II. Legal Standards

         FOIA 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).

         FOIA 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 faith.” Id.

         III. Analysis

         The 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; .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.

         A. Email Threads

         Prechtel requested all email inquiries to the Commission's “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.[1] See Defs.' SUMF Ex. B, at 2. The Court concludes that this withholding was proper.[2]

         Exemption 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).

         The 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.

         According 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, ...

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