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Carter, Fullerton & Hayes v. FTC, No. 1:12-cv-448, 2013 WL 5538061 (E.D. Va. Oct. 4, 2013) (O'Grady, J.)

Friday, October 4, 2013
Re: Request for records of FTC's interactions with alcoholic beverage industry Disposition: Granting defendant's second motion for summary judgment; denying plaintiff's motion for summary judgment
  • Adequacy of the Search:  Upon order of the court after defendant's first motion for summary judgment was denied, defendant conducted additional searches for potentially responsive records in the office where defendant originally expected many of the responsive records would be found.  Defendant searched "by using the names of each FTC employee working within the [Bureau of Economics (BoE)] whose name also appeared in one of the responsive records previously provided to Plaintiff and the Court."  "The BoE FOIA contact worked with the heads and deputy heads of the BoE to disseminate Plaintiff's FOIA request to any employees, new or old, who might possess responsive records."  "The FTC also asked each BoE employee it contacted to identify any additional employees who might possess responsive records."  The court concludes that "[h]aving dedicated considerable resources to the search, the FTC satisfies its burden of demonstrating that its search was reasonably calculated to turn up all responsive records."  Plaintiff further challenged the search when records of a former director of BoE had been destroyed.  The court notes that "Defendant did not know that any documents in the BoE would be subject to this litigation and, therefore, should be retained."  "While the conclusion was undoubtedly flawed, it was due to consistently employed document retention policies and not underlying bad faith."  "[T]he FTC cannot be expected to search for and disclose what no longer exists."
  • Exemption 3 & Exemption 4:  "[T]he Federal Trade Commission Act provides that the FTC may not publicly disclose any trade secret or commercial information that is privileged or confidential."  "Similarly, Exemption (b)(4), allows the agency to withhold or redact information if that information is a trade secret."  "After review, all the information withheld or redacted by the FTC found in the randomly sampled files were appropriately redacted or withheld due to trade secrets, pricing information, or other proprietary information."
  • Exemption 5/Deliberative Process Privilege:  The court concludes that the "FTC's withholdings and redactions involving Mr. Wright all concerned documents that were created at the time Mr. Wright was either a full-time employee or consultant."  The "precise relationship between Joshua Wright and the FTC at all times relevant to this FOIA request" was a point of contention between the parties.  "Having reviewed Mr. Wright's affidavit and the timing of the documents listed in the Vaughn Index that include him as an author or as the subject of the conversations, the Court is satisfied that no genuine issues of material fact remain." For other records withheld pursuant to Exemption 5, "[m]any of the files consisted of draft versions of documents that were disclosed to Plainitff [sic] in a final form as well as other documents such as hand written notes or line-edited memoranda."  "Each of these documents demonstrated an ongoing deliberative process within the agency that is not subject to disclosure."  "Other documents included email exchanges between staff and consultants that squarely fit within the deliberative-process exemption under (b)(5)."
Adequacy of Search
District Court
Exemption 3
Exemption 4
Exemption 5
Updated August 6, 2014