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Wilson v. FCC, No. 21-895, 2022 WL 4245485 (D.D.C. Sept. 15, 2022) (Meriweather, Mag. J.)


Wilson v. FCC, No. 21-895, 2022 WL 4245485 (D.D.C. Sept. 15, 2022) (Meriweather, Mag. J.)

Re:  Request for records that FCC obtained from Sinclair Broadcast Group (“Sinclair”) after company’s proposed acquisition of another television broadcast company, Tribune Media Company (“Tribune”)

Disposition:  Denying plaintiff’s first motion for summary judgment as moot; denying without prejudice plaintiff’s amended motion for summary judgment; denying defendant’s cross-motion for summary judgment; granting in part defendant’s motion for protective order

  • Litigation Considerations, In Camera Inspection:  The court relates that “[a]ccording to [plaintiff], [a] later production demonstrates that the FCC improperly withheld the documents in the first instance, misrepresented itself in its initial Vaughn Index and supporting affidavit, and therefore acted in bad faith.”  “The FCC responds with caselaw suggesting that, standing alone, an agency’s voluntary reevaluation and revision of FOIA withholdings is no reason to infer that the agency acted in bad faith or that its affidavits are suspect.”  “Updated affidavits from the agency explain that FCC legal advisors reviewed the memorandum [plaintiff] submitted in support of her initial motion for summary judgment, at which point agency staff ‘realized’ that [certain documents] were responsive to [plaintiff’s] FOIA request and had been omitted from the initial production.”  “The agency also sought to ‘narrow the scope of the parties’ dispute’ and so reassessed whether it was possible to segregate and release additional material Sinclair submitted to the FCC.”  “[The] Court is satisfied that the agency’s updated Vaughn Index and affidavits are sufficiently detailed, reliable, and untainted by evidence of government bad faith, and will not order in camera review.”
  • Exemption 4:  First, the court finds that “[s]everal of the Exemption 4 considerations are not presently in dispute.”  “The FCC has not suggested that the materials withheld from [plaintiff] are ‘trade secrets’ or ‘privileged.’”  “The agency describes the withheld documents as confidential ‘commercial or financial information’ concerning the market value and proposed sale prices for various broadcast stations, negotiations and possible structures for divestiture deals, and discussions surrounding the planned Sinclair-Tribune transaction.”  “This kind of information fits snugly within the ‘ordinary meanings’ of the terms ‘commercial’ and ‘financial’ . . . and [plaintiff] does not seriously contend otherwise.”  “Additionally, [plaintiff] specifically requested ‘documents or filings Sinclair submitted to the FCC or its Bureaus.’”  “Any responsive documents must therefore have been ‘obtained from a person.’”  “The only remaining issues, then, are whether the withheld information is ‘confidential’ within the meaning of 5 U.S.C. § 552(b)(4) and whether the FCC ‘reasonably foresees that disclosure’ of the information ‘would harm an interest protected by an exemption.’”  The court relates that “[c]ommercial or financial information is ‘confidential’ within the meaning of FOIA Exemption 4 ‘at least’ where the information ‘is both [(i)] customarily and actually treated as private by its owner and [(ii)] provided to the government under an assurance of privacy.’”  “The first condition – that the information be ‘customarily kept private, or at least closely held, by the person imparting it’ – is mandatory.”  “The second condition – the government’s assurance of privacy – is relevant but not strictly required.”

    The court holds that “[t]he information is . . . ‘confidential’ within the meaning of FOIA Exemption 4.”  Regarding whether the information is customarily and actually treated as private, the court finds that “[t]he FCC says Sinclair provided all the information the agency has withheld from [plaintiff] under cover of confidentiality requests and that the company does not typically make any of the information public.”  “That assessment is based on representations Sinclair made to the FCC about its policies and practices in its requests for confidentiality, as well as Sinclair’s responses to emails from the FCC regarding the company’s objections, if any, to the disclosure of documents responsive to [plaintiff’s] FOIA request.”  Responding to one of plaintiff’s arguments, the court finds that “[w]hether the FCC’s rules and form applications for station transfers would have required Sinclair to disclose the contested information is an open question that cannot be resolved on summary judgment.”  “Ultimately, the issue is not material.”  “Confidentiality under FOIA Exemption 4 is a matter of how the owner of withheld information customarily treats the information, ‘not how the industry as a whole treats the information.’”  “Even if [plaintiff] is correct that every other broadcast company would have submitted detailed information about the future control of planned divestiture stations, either generally or under the circumstances surrounding the proposed Sinclair-Tribune deal, or whether copies of Sinclair’s financial agreements with its commercial partners were or should have been required by the rules, at the end of the day, Sinclair did not publicly disclose any of that information.”  “There is thus no reason to think that Sinclair ‘customarily’ or ‘actually treated’ this or any other information withheld from [plaintiff] by the FCC as anything other than private.”  Regarding the government’s assurance of privacy, the court relates that “[u]nder FCC rules, when an outside entity submits materials to the agency together with a confidentiality request, . . . ‘the materials will not be made routinely available for inspection’ by the public ‘[i]f it is shown in the request that the materials contain . . . confidential commercial, financial or technical data.’”  “A member of the public who wishes to inspect such materials must make ‘a persuasive showing as to the reasons for inspection,’ which the agency evaluates under its FOIA regulations.”  “Sinclair requested confidential treatment under these provisions for each of its four submissions to the FCC at issue in this case.”  “As [plaintiff] points out, . . . there was no guarantee the agency would grant the requests.”  “But the agency’s regulations are enough to show that the FCC advertised that confidentiality was available to Sinclair if Sinclair followed appropriate procedures, and Sinclair followed the procedures.”  The court also notes that “[plaintiff] correctly points out that the FCC can make confidential materials publicly available ‘if it [is] in the public interest to do so.’”  However, the court also notes that “[t]he FCC decided not to release the information [plaintiff] seeks . . . .”  The court notes that “the FCC did not indicate to Sinclair that it would disregard the company's confidentiality requests, and . . . there is no evidence that the agency has consistently released similar information in the past . . . .”

    Regarding foreseeable harm, the court holds that “[b]oth parties may supplement the record on this point, but neither has satisfied its burden on the undisputed facts currently before the Court.”  The court relates that “[o]ne harm identified by the agency is a reduction in candid communications from companies – that disclosure of the information withheld from [plaintiff] ‘would foreseeably discourage broadcast television companies in future Commission proceedings from sharing useful but sensitive commercial information with the agency.’”  “[Defendant] calls this a ‘chilling effect’ triggered by reduced trust in the agency’s ability to ‘prevent public disclosure of . . . confidential information.’”  “[Plaintiff] objects that this harm is ‘contradicted by FCC rules and practice,’ which in certain circumstances affirmatively require disclosure of sensitive information if a company wishes to obtain (legally mandatory) agency approval for commercial transactions in the highly regulated commercial broadcast media market.”  “Neither party has met its summary judgment burden on this point.”  “The undisputed facts do not as a matter of law demonstrate that the agency’s fear of reduced company candidness is reasonable, because if broadcast media companies are required to disclose sensitive commercial information or risk agency rejection of their transfer applications, . . . those companies are unlikely to withhold information solely because the information might become public through FOIA proceedings.”  “The incentives simply do not align.”  “On the other hand, the undisputed facts also do not make clear that companies must disclose sensitive commercial information every time they seek agency approval for their dealings in the broadcast market.”  “If disclosure of that sort of information is rare, an order by this Court compelling disclosure here may indeed make companies more circumspect when communicating with the FCC.”  “There is simply too much ambiguity in the record to justify summary judgment to either party on this point.”  “Reduced company candor is not the only harm the agency foresees.”  “The FCC is also concerned that Sinclair and other media companies could suffer competitive or commercial harm if Sinclair’s confidential information is disclosed.”  “This concern about harm appears more speculative, however.”  “The agency couches its competitive harm concerns in the language of ‘could’ rather than ‘would’ or ‘will.’”  “Summary judgment is also inappropriate because the FCC has failed to meaningfully pair the provisional competitive harms it foresees with the categories of information withheld.”  “Some of the connections might be reasonably clear once the agency clarifies how it anticipates competitive harm to Sinclair and other broadcast media companies.”  “Other connections are explicit but vague, and consequently will require additional explanation.”  “The agency has also failed to articulate any anticipated harm at all for [one] category of information . . . .”  “Summary judgment must also be denied to [plaintiff].”  “Although the agency has so far failed to carry its burden with respect to its Exemption 4 withholdings, the undisputed material facts do not establish that the agency will be unable to do so as a matter of law.”
  • Litigation Considerations:  The court relates that “[t]he FCC also moved for a protective order shielding from further disclosure information inadvertently revealed to [plaintiff] in the agency’s production of October 22, 2021.”  “The inadvertently disclosed material consists of the final paragraph of Sinclair’s May 2019 submission to the FCC and a single sentence on the third page of Sinclair’s July 2019 response to the FCC's LOI.”  “The agency requested protective relief only as to the mistakenly disclosed paragraph in the May 2019 communication, referred to hereafter as the ‘Inadvertent Disclosure.’”  “The agency has thus waived any objection to [plaintiff’s] use of the other mistakenly disclosed material in Sinclair’s July 2019 LOI response.”  “To the extent that the parties have interpreted the Court’s Order of November 5, 2021 as reaching that sentence, [plaintiff] is no longer required to refrain from disclosing, disseminating, or making use of that information.”  “The Court will partially grant the agency’s motion for protective order and order [plaintiff] to refrain from disclosing, disseminating, or making use of the Inadvertent Disclosure until the Court resolves the merits of the government’s Exemption 4 withholding decisions.”  “To aid its decision, the Court will require supplemental briefs on the issue of foreseeable harm.”  “Although FOIA does not provide for protective orders or the compelled return or destruction of inadvertently produced material, federal courts have ‘long “understood that certain implied powers must necessarily result to our Courts of justice from the very nature of their institution,” which “are governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.”’”  “The more robust record developed through supplemental briefing will provide further insight into the harm likely to occur if the Inadvertent Disclosure is left public and whether the FCC properly invoked FOIA Exemption 4.”  “However, in the interim, [plaintiff] should not be allowed to use or further publicize the inadvertently disclosed information.”
Court Decision Topic(s)
District Court opinions
Exemption 4
Litigation Considerations, In Camera Inspection
Litigation Considerations, Supplemental to Main Categories
Updated October 26, 2022