Cause of Action v. FTC, No. 1:12-cv-00850-EGS, 2013 WL 4406875 (D.D.C. Aug. 19, 2013) (Sullivan, J.)

Date: 
Monday, August 19, 2013
Re: Request for records concerning guides published by the FTC concerning the use of endorsements and testimonials in advertising and revisions to guide to include social media and bloggers; request for records concerning FTC's history of granting fee waivers and request for records concerning FTC's evaluation of plaintiff's fee waiver requests Disposition: Granting defendant's motion for summary judgment with respect to fee waiver denial; granting defendant's motion in part and denying in part with respect to Exemption 5 withholdings
  • Fee waiver:  The court holds that plaintiff was not entitled to a fee waiver with respect to its first request for records concerning guides published by the FTC concerning the use of endorsements and testimonials in advertising and revisions to the guides to include social media and bloggers as well as records concerning investigations related to violations of the guides.  The court finds that the requested "information involves the operations or activities of government because it would provide insight into the FTC's decision-making process regarding the enforcement of the Guides; it concerns government investigations; and it involves communications between the government and other outside agencies."  Thus the first requirement for a fee waiver is met.  The court concludes that the second requirement is also met because the plaintiff has shown that the information would contribute to public understanding because it "could inform social media authors and bloggers about the Guides' effects on their activities" and "would inform the public about how government action impacts First Amendment rights."  In addition, the court agrees that the fourth requirement is met because the information would likely contribute significantly to public understanding.  While the court acknowledges that the FTC has made some information available in the form of a synthesized article discussing the guides, the court agrees with plaintiff that "there may be some public benefit to Plaintiff receiving all relevant raw information from the FTC regarding the enforcement and investigations into the Guides to do an independent analysis and synthesis of the information."  However, the court concludes that plaintiff has failed to "to show that the requested information would increase understanding of the public at large" because it has not demonstrated that it "has the intent and ability to effectively convey the information to a broad segment of the public."  To do so requesters "must identify several methods of disseminating the information and provide some concrete basis upon which the agency can conclude that these methods are adequate to convey the requested information to a wide audience."  Plaintiff only pointed to "its website and articles published by news media that have relied on [plaintiff's] past work on other issues."  "Plaintiff did not provide any estimate of the number of people likely to view its website, nor did it demonstrate other ways in which it would disseminate the information itself, without relying on another source."  In addition, plaintiff "specified no organizations which would disseminate this information," and thus fails the third element of the test for fee waiver eligibility.  In response to arguments made here regarding the dissemination element, the court notes that "Plaintiff did not provide most of this evidence during the lengthy administrative process," and "judicial review of fee waiver denials is limited to the administrative record." The court also holds that the FTC properly denied plaintiff's request for a fee waiver regarding its request for records concerning "the FTC's history [of] granting public interest fee waivers."  Again, the court determines that the request indeed "involves the operations and activities of government because it concerns the FTC's decision-making process on fee waivers."  The second element is also met because "[t]he requested information is likely to contribute to public understanding by enlightening the public on how to obtain public interest fee waivers for FOIA requests."  However, for the same reasons as with respect to plaintiff's first request, plaintiff does not meet the third requirement because it has not shown the public at large will benefit because it has not shown intent and ability to disseminate the information.  Additionally, here the fourth element is not met because plaintiff has not "shown that the information would significantly contribute to public understanding."  "Because Plaintiff only wanted to pursue this second request if the FTC found it was not entitled to a public interest fee waiver on the first request, it is clear that Plaintiff's primary interest in the second request was its desire to better prepare itself for an appeal of its fee waiver denial of its first request."  This made the court "skeptical of Plaintiff's intentions of benefiting the public with this second request."
  • Fee waiver/Mootness:  With respect to plaintiff's third request for information concerning the Guides, records concerning the FTC evaluation of fee waiver requests, and the FTC's evaluation of plaintiff's fee waiver requests, the court determines that the fee waiver issue is moot.  Plaintiff's request "yielded ninety-five responsive pages."  All but sixteen pages were released free of charge.  "FTC declared Plaintiff's fee waiver issue moot not based on the number of pages that were exempt, but based on the fact that it only found less than 100 responsive pages for Plaintiff's third request."  The court notes that "FTC could not have been discouraging Plaintiff from testing the bounds of FOIA's exemptions because it did not base Plaintiff's fee waiver determination on the number of pages that were exempted."  "Even if this Court found that the FTC improperly withheld the sixteen pages from Plaintiff, Plaintiff would still only receive ninety-five pages and Plaintiff would still not be required to pay a fee."
  • Fee category:  The court finds that plaintiff does not qualify for representative of the news media fee status.  Plaintiff "satisfies the first element because it gathers information of potential interest to a segment of the public."  However, plaintiff does not meet the second element because it has not demonstrated that "it uses its editorial skills to turn raw material into a distinct work."  Instead, "[t]he only information it identified as 'published' is unspecified information it posts on its website, social media sites such as Facebook and Twitter, and through an email newsletter it began publishing to subscribers beginning in September 2011, after it made its first FOIA request and just one month before it filed its second request."  Plaintiff also "did not indicate any distinct work it planned to create based on the requested information or that it would use any information beyond that obtained in the FOIA requests to create any unique product."  Likewise, plaintiff fails to satisfy the third element required for representative of the news media status.  "Plaintiff has not specifically demonstrated its intent and ability to disseminate the requested information to the public rather than merely make it available."  The court notes that plaintiff's "newsletter did not even exist until after it made its first FOIA request, and had only been published for a month when it filed its second request."  In addition, "[p]laintiff has not estimated how many people view its website or social media, nor has it indicated whether its media contacts would write about the requested information."  The court further opines that even if plaintiff's media contacts published articles involving the information requested, plaintiff "'cannot simply borrow [its media contacts'] credentials for purposes of proving its own entitlement to a 'representative of the news media' fee limitation.'"  In addition, plaintiff is not "organized especially around dissemination."  "Plaintiff performs its activities to aid in government accountability and is thus more like a middleman for dissemination to the media."
  • Exhaustion of Administrative Remedies & Vaughn Index: The court holds that plaintiff did not exhaust its administrative remedies with respect to its second request.  "Plaintiff did not specifically object to the FTC's withholding of documents response to its second request."  An April 4, 2012 letter submitted by plaintiff "only referred to Plaintiff's third FOIA request."  The court rejects "[p]laintiff's claims that an administrative appeal would have been premature because no Vaughn index had yet been provided."  The court notes that "[p]laintiff was not entitled to a Vaughn index during the FTC's administrative appeals process."  Accordingly, "[p]laintiff's appeal could not have been contingent on the provision of a Vaughn index."
  • Exemption 5:  The court finds that the FTC properly withheld certain memoranda pursuant to the deliberative process privilege because "they contain legal advice and recommendations from a subordinate paralegal to a supervising attorney on how the FTC should make a complex decision, Plaintiff's qualification for fee waivers for its FOIA requests."  With regard to plaintiff's segregability challenge, the court finds that the FTC declaration adequately details that with regard to the memoranda, "no information could be segregated because the information was inextricably intertwined with the subordinate's thoughts and personal opinions." The court concludes that these memoranda were also properly withheld pursuant to "the attorney work-product privilege because they were prepared by the paralegal under the direction of an attorney and in anticipation of litigation specifically with Plaintiff, over Plaintiff's FOIA requests, and the agency's responses to those requests."  The court notes that "the final withheld memorandum, dated December 16, 2011, was prepared after [plaintiff] had explicitly threatened the agency with litigation."  The court further remarks that because the memoranda are protected by the attorney work product privilege, "no segregability analysis" is required. However, the court rejects FTC's contention that screenshots of plaintiff's website were properly withheld pursuant to either the deliberative process privilege or the attorney work-product privilege.  The court finds that "[t]he screenshots are factual material."  "Even if the paralegal took the screenshots in order to help the supervising attorney make an informed decision on Plaintiff's fee waiver request, the paralegal did not express any opinions in taking the screenshots."  "When he took the screenshots, the paralegal was simply capturing images of Plaintiff's website at the direction of his supervising attorney."  Thus, the deliberative process privilege cannot apply to them.  Similarly, the court reasons that "[a]s purely factual material that contains no opinions or strategic thinking of the paralegal who prepared them, or the attorney for whom they were prepared," the screenshots also cannot be covered by the attorney work-product privilege.
Topic: 
District Court
Exemption 5
Exhaustion
Fees and Fee Waiver
Mootness
Vaughn Index
Updated August 6, 2014