United States District Court, District of Columbia
CHRISTOPHER R. COOPER, UNITED STATES DISTRICT JUDGE.
the 2017 presidential inauguration, a wave of anonymous
accounts claiming to have ties to federal government agencies
cropped up on Twitter. The account “handles” were
styled as “@alt” followed by the particular
agency's name, such as @altFEC or @ALT_USCIS. Run by
those professing to be current or former agency employees,
these Twitter accounts publicly criticized the associated
agencies and the current Administration. This naturally
raised legal questions. After receiving a summons from U.S.
Customs and Border Protection for information related to the
@ALTUSCIS account, Twitter filed suit on First Amendment
grounds, voluntarily dismissing only after the government
withdrew the summons. See Twitter, Inc. v. U.S. Dep't
of Homeland Sec., No. 3:17-cv-01916-JCS (C.D. Cal.
2017). And, not surprisingly, journalists wanted to know what
other agencies were planning to do about the accounts.
group of journalists, the Center for Public Integrity, filed
two requests under the Freedom of Information Act
(“FOIA”) with the Federal Election Commission
(“FEC”) seeking records regarding the
“@altFEC” Twitter account and communications from
the “EOP.gov” domain. The FEC produced some
responsive documents and redacted or withheld others. The
parties have filed cross-motions for summary judgment
regarding these redactions and withholdings. For the reasons
below, the Court will grant the FEC's motion for summary
judgment and deny the Center for Public Integrity's
case involves two FOIA requests. By email on February 1,
2017, plaintiff first requested from the FEC:
Any emails, memoranda or other correspondence or
communication that discuss, mention, reference or otherwise
pertain to the Twitter account “altFEC.” This
includes direct mention of the account “@altFEC”,
as well as other obvious references to the @altFEC account,
which should include, but not be limited to: “alt FEC
Twitter, ” “alt FEC account” and
“fake @FEC account.”
of Katie A. Higginbothom Supp. Def.'s Mot. Summ. J.
(“Higginbothom Decl.”) Ex. A. The FEC's
searches generated twenty-one pages of communications.
Higginbothom Decl. ¶ 5. The agency released seven pages
of these responsive records and withheld fourteen pursuant to
FOIA Exemption 5. Id. ¶¶ 6-7. The agency
affirmed the withholding in an administrative appeal.
Id. ¶ 9.
email on February 6, 2018, plaintiff submitted a second
records request to the FEC, this time for “[a] copy of
all emails from the domain ‘EOP.gov' to senior
managers and commissioners encompassed within the required
agency system for retaining emails of senior
officials.” Higginbothom Decl. Ex. G. The FEC found
fourteen pages of responsive documents, all of which
originated from the Office of Management and Budget
(“OMB”). Higginbothom Decl. ¶ 11. The agency
referred those documents to OMB for disposition and OMB
suggested redactions pursuant to FOIA Exemptions 5 and 6.
Id. ¶¶ 12, 14. The FEC adopted those
suggestions and released all fourteen pages with
redactions. Id. ¶ 14.
parties have both moved for summary judgment, and those
motions are ripe for review.
agency bears the burden of proving that any redactions or
withheld records fall within the scope of an exemption to
FOIA. AquAlliance v. U.S. Bureau of Reclamation, 856
F.3d 101, 102-03 (D.C. Cir. 2017). Exemption 5 of FOIA, which
the FEC has invoked, permits the withholding of
“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). As relevant here, this exemption includes
documents protected by the deliberative process privilege.
Abtew v. U.S. Dep't of Homeland Sec., 808 F.3d
895, 898 (D.C. Cir. 2015). To qualify for this privilege, the
document must be both “predecisional” and
“deliberative.” Id. (citing Coastal
States Gas Corp. v. Dep't of Energy, 617 F.2d 854,
866 (D.C. Cir. 1980)). A predecisional communication is one
that “precedes, in a temporal sense, the
‘decision' to which it relates.” Id.
(citation omitted). A deliberative communication is one that
is “a part of the agency give-and-take-of the
deliberative process-by which the decision itself is
made.” Id. (citation omitted).
disputes are generally resolved on cross-motions for summary
judgment. Lantz v. U.S. Dep't of Commerce, 316
F.Supp.3d 523, 527 (D.D.C. 2018). Summary judgment is
appropriate where the pleadings and records show “that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(c). Summary judgment may be granted in the
FOIA context “on the basis of agency affidavits if they
contain reasonable specificity of detail rather than merely
conclusory statements, and if they are not called into
question by contradictory evidence in the record or by
evidence of agency bad faith.” Consumer Fed'n
of Am. v. Dep't of Agric., 455 F.3d 283, 287 (D.C.