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Center for Public Integrity v. Federal Election Commission

United States District Court, District of Columbia

September 18, 2018

CENTER FOR PUBLIC INTEGRITY, Plaintiff,
v.
FEDERAL ELECTION COMMISSION, Defendant.

          MEMORANDUM OPINION

          CHRISTOPHER R. COOPER, UNITED STATES DISTRICT JUDGE.

         Following 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.

         One 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.[1] 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 cross-motion.

         I. Background

         This 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.”

         Decl. 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.

         By 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.[2] Id. ¶ 14.

         The parties have both moved for summary judgment, and those motions are ripe for review.

         II. Legal Standard

         The 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).

         FOIA 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. Cir. 2006).

         III. Analysis

         A. @a ...


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