N.Y. Times Co. v. FCC, No. 18-8607, 2020 WL 2097623 (S.D.N.Y. Apr. 30, 2020) (Schofield, J.)

N.Y. Times Co. v. FCC, No. 18-8607, 2020 WL 2097623 (S.D.N.Y. Apr. 30, 2020) (Schofield, J.)

Re:  Request for records concerning FCC's "'API proxy server log,'" specifically regarding comments on FCC's notice of proposed rulemaking regarding "net neutrality"

Disposition:  Granting plaintiffs' motion for summary judgment; denying defendant's motion for summary judgment; denying plaintiffs' motion for attorney fees without prejudice to renew

• Exemption 6:  The court holds that "[w]eighing the private and public interests as discussed above, and in light of the 'strong presumption in favor of disclosure,' Exemption 6 does not shield from disclosure the requested IP addresses and User-Agent fields in the API proxy server log in this case."  First, the court finds that "[o]riginating IP addresses and User-Agent header data are 'similar files' for Exemption 6 purposes, and Plaintiffs do not dispute this conclusion."  "Data that provides information about a particular person without revealing his or her complete identity can qualify for Exemption 6 balancing."  Second, the court holds that "[e]very commenter was provided with a privacy notice, stating that '[a]ll information submitted, including names and addresses, will be publicly available via the web.'"  "Commenters arguably consented to the release of their IP addresses and other device-specific information, even though they may not have realized that the information was being divulged."  "On the other hand, the strongest argument in favor of finding a substantial privacy interest is that digital advertisers and digital platforms could combine this data with other available information to create a detailed and intimate profile that might include information about a person's race or ethnicity, political affiliation, religious belief, sexual identity and activity, income level, purchasing habits and medical information."  "If the record provided further insight into how likely it is that this risk would materialize, then the agency might have sustained its burden of showing that the disclosure of IP addresses and User-Agent headers would compromise a substantial privacy interest."  "But the general statements in the agency's declaration that IP addresses and other digital identifiers 'often can be reliably linked to individual persons' to create 'detailed profiles' fall short."  "Although the Court could grant Plaintiff's motion on this basis alone, the Court is reluctant to find on a less than developed record that the disclosure of IP addresses and User-Agent headers would affect only a de minimis privacy interest."  "In addition, the public interest in disclosure is sufficiently important here that it merits discussion, regardless of how the privacy interest is characterized."  Regarding the public interest, the court finds that "[h]ere, disclosing the originating IP addresses and User-Agent headers would help clarify whether and to what extent fraudulent activity interfered with the comment process for the FCC's rulemaking No. 17-108, and more generally, the extent to which administrative rulemaking may be vulnerable to corruption."  "This serves a vital public interest because of the importance of public comments in agency rulemaking."  The court relates that "[t]he FCC contends that even if disclosure serves a public interest, that interest is diminished because of alternative sources of similar information . . . ."  "But the FCC does not assert that these investigations would reveal the same information that Plaintiffs seek here, or reveal the FCC's operations and activities in the same way as the information Plaintiffs request."
   
• Procedural Requirements:  The court relates that "[t]he FCC contends that because producing the requested information is unreasonably burdensome and unreliable, FOIA does not require compliance."  The court notes that "the FCC objects to producing the relevant materials from the API proxy server log because to do so requires creating a script, which demands 'research' rather than simply a 'search.'"  The court holds that "FOIA 'clearly require[s] agencies to sort a pre-existing database of information to make information intelligible so that it may be transmitted to the public.'"  "'Accordingly, conducting such a search cannot constitute . . . conducting research so as to fall outside of agency disclosure requirements.'"  "In addition, the FCC has made no showing that creating and running such a script would require more than 'reasonable efforts to search' or 'would significantly interfere with the operation of the agency's automated information system.'"  Additionally, "the FCC contends that the script will not precisely extract information associated with rulemaking No. 17-108, such that the results will be unreliable."  Observing that "over 99% of comments submitted . . . relate to rulemaking No. 17-108," [t]he court finds that "the risk of producing inaccurate information is insufficient to overcome the 'strong presumption in favor of disclosure.'"
   
• Attorney Fees:  The court holds that "[t]he parties have not briefed this issue."  "Accordingly, Plaintiffs' motion for reasonable attorneys' fees and other litigation costs is denied without prejudice to renew the request."