Comptel v. FCC, No. 06-1718, 2013 WL 2171793 (D.D.C. May 20, 2013) (Lamberth, C.J.)

Date: 
Monday, May 20, 2013
Re: Request for "'all pleadings and correspondence'" in a specific file opened by the FCC Enforcement Bureau during a 2004 investigation of SBC Communications, Inc., now AT&T Disposition: Granting in part and denying in part plaintiff's and defendant's cross-motions for summary judgment
  • Adequacy of the Search:  The court finds that defendant's search was reasonable.  The court first notes that an "'agency must show beyond material doubt . . . that it has conducted a search reasonably calculated to uncover all relevant documents.'"  However, the court notes that "the adequacy of an agency's search is measured by a case-by-case standard of reasonableness that examines the method of the search, not whether additional responsive documents might exist."  The court states that "[a]gency affidavits may be submitted by an official who coordinated, or has personal knowledge of, the search, and need not be from each individual who participated in the search."  "However, summary judgment is improper where “agency affidavits . . . do not denote which files were searched, or by whom, do not reflect any systematic approach to document location, and do not provide information specific enough to enable [the requester] to challenge the procedures utilized."  Plaintiff contended that defendant's search was inadequate based on defendant's failure to "clarif[y] why the case file searched contained emails from only [one employee], despite the fact that as many as seventeen [of defendant's] employees appear to have been involved in the investigation," as well as defendant's failure to "identify or produce clean versions" of a draft consent decree and compliance plan that contained handwritten notes.  The court rejects each of plaintiff's arguments in turn.  First, the court notes that while defendant "has not explained why all of the e-mails are from [one employee's e-mail account], [defendant] has clarified that [it] searched only [one file]."  The court states that plaintiff "did not request that [defendant] search all agency e-mails for the information," but rather, "requested information from a discrete source," the one file searched by defendant. Second, the court finds that "the fact that defendant produced one version of a particular document and not two different versions of the same document does not necessarily suggest that the search method was inadequate [because defendant] requested information only from a discrete [defendant] file."  Therefore, the court "holds that [defendant] has produced sufficient evidence that it conducted an adequate search."
  • Exemption 4:  The court denies defendant's motion for summary judgment concerning its withholding of portions of two documents pursuant to Exemption 4.  The court notes that defendant "has the burden to show that the information redacted is commercial or financial, in addition to demonstrating that it was obtained from a person and is privileged or confidential."  The court notes that "[t]o address the first element, [defendant] merely asserts, without any supporting detail, that [the two documents] contain 'confidential commercial information' . . . and 'commercial and competitively sensitive financial information.'"  The court states that "although the terms commercial and financial are defined broadly, they are not without limits" and "[e]ven with an incredibly broad definition of commercial or financial information, the government must at least provide the court with sufficient, non-conclusory detail to show that the information falls into this category."  Regarding the second element, the court finds that defendant "does not explain how all portions of a document originally prepared by its own staff can be considered 'obtained from a person.'"  The court notes that "[w]hile it is possible that [defendant] relied on information [obtained from a person] to draft parts of the original version, it seems unlikely, and [defendant] has not met its burden to show, that this is true for the entire document."  Regarding the third element, the court determines that "[w]ithout more detail about the nature of the information, the court cannot evaluate whether [defendant's] assertion" that the documents are "privileged or confidential" is correct.  The court also notes that while "[defendant] has asserted that there are 'no segregable portions of the document[s],'" "[a]ny portions of the redacted documents mirroring the public versions cannot be redacted here, and that, given the nature of the documents, "it seems unlikely that there are no segregable portions."  The court also finds that defendant "cannot justify its Exemption 4 redactions from these documents merely by linking the documents to settlement discussions."  Finally, regarding defendant's argument that plaintiff "'wish[es] to use FOIA 'as an end-run attempt to obtain commercially confidential information,'" the court notes that "the identity of a FOIA requester and the purpose of the request are irrelevant to whether Exemption 4 applies" and are "irrelevant to whether the agency has met its own burden to justify the invocation of a FOIA exemption."  Thus, the court orders the release of the documents in their entirety.
  • Exemption 5:  The court finds that defendant "has not sufficiently justified the redaction of [two documents] and . . . order[s] [defendant] to produce these documents in full."  The documents consist of a draft consent decree and draft compliance plan which contain the handwritten notes of an FCC attorney.  Defendant withheld these notes "because they 'reflect[ ] opinions and impressions of [defendant's] proposed revisions to the draft consent decree, as well as strategies regarding the potential settlement.'"  Defendant argues that "the notes are protected from disclosure under the deliberative process privilege because they relate to settlement negotiations that resulted in the consent decree."  Defendant "also argues that they are 'attorney work product made in furtherance of resolution of the case and mental impressions and opinions of settlement options.'"  Plaintiff argued that defendant's declaration "suggests that [the] notes may have been shared with [the subject of the investigation]."  Defendant responded in its opposition that the notes were "only shared with other Agency personnel."  However, the court finds that "it cannot base its decision on statements included only in the FCC's Opposition, rather than in the agency's Declaration or Vaughn Index.  Statements made by counsel in briefs are not admissible evidence upon which summary judgment may be granted."  Therefore, the court orders production of the documents.
  • Litigation Considerations, Waiver of Exemptions in Litigation:  The court grants summary judgment to defendant regarding its use of Exemption 6 and 7(C).  "By failing to respond to these arguments in its Opposition, [plaintiff] has conceded [defendant's] arguments."
  • Litigation Considerations, Declaratory Judgment:  The court denies plaintiff's request for declaratory relief concerning its contention that defendant misstated the amount of responsive material and engaged in unreasonable delays.  The court notes that it "previously indicated its reluctance to issue such relief."  "'[A] declaration that an agency's initial refusal to disclose requested information was unlawful, after the agency made that information available, would constitute an advisory opinion.'"  "'A party whose FOIA request has been satisfied, however, may seek declaratory relief if an "agency policy or practice will impair the party's lawful access to information in the future."'"  However, the court finds that plaintiff "has not provided any evidence that [defendant] has an 'agency policy or practice' that would impair [plaintiff's] access to information in the future."  Therefore, the court finds that declaratory relief would be unwarranted. 
Topic: 
Adequacy of Search
Declaratory
District Court
Exemption 4
Exemption 5
Litigation Considerations
Waiver
Updated August 6, 2014