Cause of Action v. Federal Trade Commission

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

________________________________
)
CAUSE OF ACTION, )
)
Plaintiff, )
)
v. ) Civ. Action No. 1:12-cv-00850-EGS
)
FEDERAL TRADE COMMISSION, )
)
Defendant. )
________________________________ )

MEMORANDUM OPINION

Cause of Action (“COA” or “plaintiff”) brings this case

regarding three requests it made to Defendant, Federal Trade

Commission (“FTC”), under the Freedom of Information Act (“FOIA”).

Plaintiff claims that the Defendant improperly denied Plaintiff’s

fee waiver requests because the disclosure of information it

requested is in the public interest or because COA is a

representative of the news media. Plaintiff also argues that the

agency improperly withheld certain documents under FOIA’s Exemption

5.1. Pending before the Court is Defendant’s motion for summary

judgment.

Upon consideration of the motion, Plaintiff’s response,

Defendant’s reply, the applicable law, and the entire record, and

1
The FTC also withheld certain documents under FOIA’s Exemption 6,
which Plaintiff concedes were properly withheld. Pl.’s Opp’n to
Mot. for Summ. J. (“Pl.’s Opp’n”) at n.20.

1
for the reasons set forth below, Defendant’s motion for summary

judgment is GRANTED with respect to the denial of fee waivers. With

respect to the withholding of documents pursuant to Exemption 5,

Defendant’s motion for summary judgment is GRANTED IN PART AND

DENIED IN PART.

I. BACKGROUND

Plaintiff is a nonpartisan, nonprofit organization that “uses

public advocacy and legal reform strategies to ensure greater

transparency in government and protect taxpayer interests and

economic freedom.” Complaint (“Compl.”) ¶ 5. The FTC publishes

“Guides Concerning the Use of Endorsements and Testimonials in

Advertising” (“Guides”). In 2009 the FTC published revisions to the

Guides, to include social media and bloggers. Compl. ¶ 9.

Following the revisions, the Plaintiff initiated three FOIA requests

in 2011 and 2012. Id. ¶¶ 12, 25, 47. Plaintiff was interested in

using the requested information to inform the public how the Guides’

revisions would impact bloggers and social media authors, and

consequently affect First Amendment rights to speech. Id. ¶ 11.

A. FOIA Request #1 (FOIA-2011-01431)

On August 30, 2011, Plaintiff submitted its first FOIA request

to the FTC, assigned FOIA Request No. 2011-01431. Complaint Exhibit

(“Compl. Ex.”) 1, 2. The request sought (1) all records relating to

the drafting, formulation, and revision of the Guides; (2) all

records concerning the results of investigations into conduct by

2
bloggers or social media authors that allegedly violated the Guides;

(3) all records concerning the results of investigations into

conduct by companies that related to alleged violations of the

Guides; and (4) copies of any other requests for information made by

outside groups through FOIA during the last two years regarding

revisions to the Guides. Compl. Ex. 1. Plaintiff stated that the

information requested is in the public interest, and accordingly

requested a complete waiver of search and duplication fees. Id.

On September 22, 2011, the FTC denied Plaintiff’s request for a

public interest fee waiver. Compl. Ex. 2. On September 26, 2011,

Plaintiff asked again for a public interest fee waiver and added a

request for a “representative of the news media” fee waiver. Compl.

Ex. 3. On October 7, 2011, the FTC denied both fee waiver requests.

Compl. Ex. 4. In the denial, the FTC designated Plaintiff as an

“Other (General Public)” requestor, which is only entitled to 100

pages of records free of charge in accordance with 16 C.F.R. §

4.8(b)(6). Id. The FTC released 100 pages of records to plaintiff

at that time. Id.

On October 28, 2011, Plaintiff administratively appealed the

FTC’s denial of its public interest fee waiver. Compl. Ex. 5. On

November 29, 2011, the FTC affirmed its denial of Plaintiff’s

request for a public interest fee waiver for this first FOIA

request, informing Plaintiff of its ability to appeal the FTC’s

decision in district court. Compl. Ex. 6.

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 On December 12, 2011, Plaintiff requested that the FTC

reconsider its denial of Plaintiff’s appeal, reiterating its

qualification for a public interest fee waiver for its first

request. Compl. Ex. 9. On December 20, 2011, the FTC denied

Plaintiff’s appeal. Compl. Ex. 10.

On January 27, 2012, Plaintiff again requested that the FTC

reconsider the denial of a public interest fee waiver for the first

request and reiterated its qualification for a “representative of

the news media” fee waiver. Compl. Ex. 12. On February 27, 2012,

the FTC once again denied Plaintiff’s request for both fee waivers.

Compl. Ex. 13.

B. FOIA Request #2 (FOIA-2012-00227)

In response to the FTC’s October 7, 2011 denial of its fee

waiver request for its first FOIA request, Plaintiff made its second

FOIA request on October 28, 2011, assigned FOIA Request No. 2012-

00227. Compl. Ex. 5, 7. Plaintiff asked for (1) all FOIA requests

where the FTC granted fee waivers under the public interest

exception since January 1, 2009 and (2) documents referring or

relating to the process in which the FTC determined the FOIA

requests identified in (1) were within the fee waiver exception.

Id. Plaintiff later requested a public interest fee waiver and

“representative of the news media” fee waiver for this request on

December 12, 2011. Compl. Ex. 8.

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 On January 6, 2012, the FTC denied Plaintiff both a public

interest fee waiver and a “representative of the news media” fee

waiver. Compl. Ex. 11. For purposes of determining fees associated

with fulfilling plaintiff’s FOIA request, the FTC once again

designated Plaintiff as an “Other (General Public)” requester and

therefore entitled to 100 pages out of 156 relevant pages free of

charge, pursuant to 16 C.F.R. § 4.8(b)(6). Compl. Ex. 11;

Defendant’s Motion for Summary Judgment Exhibit (“Def.’s Mot. Summ.

J. Ex.”) T; Declaration of Nathaniel Fairbanks Gray (“Gray Decl.”)

¶¶ 20-22. The FTC withheld eight documents consisting of twelve

pages under Exemption 5. Def.’s Mot. Summ. J. Ex. T.

On January 27, 2012, Plaintiff appealed the FTC’s denial of

both its public interest fee waiver request for its second request

and denial of its “representative of the news media” fee waiver

request. Compl. Ex. 12. On February 27, 2012, the FTC affirmed its

denial of both the public interest fee waiver request and the

“representative of the news media” fee waiver request. Compl. Ex.

13. COA did not appeal the agency’s withholding of documents

pursuant to Exemption 5, and the agency did not address this issue

in its letter denying the appeal. Compl. Exs. 12-13.

B. FOIA Request #3 (FOIA-2012-00687)

On January 27, 2012, Plaintiff made its third FOIA request,

assigned FOIA Request No. 2012-00687. Compl. Ex. 12, 14. Plaintiff

requested (1) all records relating to the drafting, formulation, and

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revision of the Guides Concerning Use of Endorsements and

Testimonials in Advertising concerning social media authors and

bloggers between January 1, 2009 and November 6, 2011; (2) all

documents, including e-mail communications, referring or relating to

FTC orders, decisions, memoranda, interpretations, instructions,

statements of policy, or guidelines to staff for the purposes of

evaluating fee waiver requests under the public interest exception;

and (3) all documents, including e-mail communications, referring to

or relating to the process the FTC used to deny Plaintiff a fee

waiver. Compl. Ex. 12.

On March 19, 2012, the FTC informed COA that it had located

ninety-five pages of information responsive to the request. Compl.

Ex. 14; Declaration of Dione Jackson Stearns (“Stearns Decl.”) ¶ 18;

Gray Decl. at ¶¶ 24, 26. The FTC released free of charge seventy-

nine pages relating to the second and third parts of the request,

and withheld five documents consisting of sixteen pages under

Exemption 5. Compl. Ex. 14; Def.’s Mot. Summ. J. Ex. T. Documents

9 and 10, consisting of one page each, are screenshots of

Plaintiff’s website which were taken by a paralegal under the

direction of his supervising attorney and withheld under Exemption

5’s deliberative process privilege and attorney work-product

privilege. Id. Document 11, consisting of four pages, Document 12,

consisting of four pages, and Document 13, consisting of six pages,

are memoranda written by a paralegal to a superior and were also

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withheld under Exemption 5’s deliberative process and attorney work-

product privileges. Id. The FTC did not determine whether

Plaintiff was entitled to a public interest fee waiver or a

“representative of the news media” fee waiver for this FOIA request,

explaining that it had only located ninety-five pages of responsive

information, which COA was entitled to receive free of charge under

16 C.F.R. § 4.8(b)(6) even without a fee waiver. Compl. Ex. 14.

On April 4, 2012, Plaintiff appealed the withholding and

asserted its entitlement to both a public interest fee waiver and a

“representative of the news media” fee waiver. Compl. Ex. 15. On

May 7, 2012, the FTC affirmed its withholding and declared the fee

waiver issue moot. Compl. Ex. 16.

Plaintiff then initiated this suit on May 25, 2012. The FTC

moved for summary judgment. The motion is ripe for resolution by

the Court.

II. STANDARD OF REVIEW

Summary judgment is granted when there is no genuine issue of

material fact and the movant is entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,

325 (1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991 (D.C.

Cir. 2002). In determining whether a genuine issue of fact exists,

the court must view all facts in the light most favorable to the

non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986). Under FOIA, all underlying facts

7
and inferences are analyzed in the light most favorable to the FOIA

requester; as such, only after an agency proves that it has fully

discharged its FOIA obligations is summary judgment appropriate.

Moore v. Aspin, 916 F. Supp. 32, 35 (D.D.C. 1996) (citing Weisberg

v. U.S. Dep't of Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983)).

FOIA cases are typically and appropriately decided on motions for

summary judgment. Gold Anti-Trust Action Comm., Inc. v. Bd. of

Governors of Fed. Reserve Sys., 762 F. Supp. 2d 123, 130 (D.D.C.

2011) (citations omitted).

In reviewing a motion for summary judgment under the FOIA, the

court must conduct a de novo review of the record. See 5 U.S.C. §

552(a)(4)(B) (2012). The court may award summary judgment solely on

the basis of information provided by the department or agency in

affidavits or declarations that describe “the documents and the

justifications for nondisclosure with reasonably specific detail,

demonstrate that the information withheld logically falls within the

claimed exemption, and are not controverted by either contrary

evidence in the record nor by evidence of agency bad faith.”

Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981);

see also Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973),

cert. denied, 415 U.S. 977 (1974). Agency affidavits or declarations

must be “relatively detailed and non-conclusory.” SafeCard Services

v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991). Such affidavits or

declarations are accorded “a presumption of good faith, which cannot

8
be rebutted by purely speculative claims about the existence and

discoverability of other documents.” Id. (internal citation and

quotation omitted). An agency has the burden of demonstrating that

“each document that falls within the class requested either has been

produced, is unidentifiable, or is wholly [or partially] exempt from

the Act's inspection requirements.” Goland v. CIA, 607 F.2d 339, 352

(D.C. Cir. 1978) (internal citation and quotation omitted).

III. ANALYSIS

The issues before this Court are (1) whether the FTC properly

determined Plaintiff’s qualification for public interest fee waivers

and “representative of the news media” fee waivers for all three of

Plaintiff’s FOIA requests and (2) whether the FTC properly withheld

documents under Exemption 5 for Plaintiff’s second and third FOIA

requests. The Court will address them in turn.

A. FEE WAIVERS

The disputes regarding COA’s fee waivers fall into three

categories. First, COA argues that the FTC improperly denied

Plaintiff a public interest fee waiver for its first and second FOIA

requests. Second, COA claims the FTC improperly denied Plaintiff a

“representative of the news media” fee waiver for the same requests.

Finally, COA argues that the FTC improperly declared the fee waiver

issue moot for Plaintiff’s third FOIA request.

For the reasons that follow, the Court finds that the FTC was

justified in denying Plaintiff a fee waiver for its first and second

9
FOIA requests. Finally, the Court finds that the FTC properly

declared the fee waiver issue moot for Plaintiff’s third request.

1. Public Interest Fee Waiver

Fee waivers are granted if the requested information is “in the

public interest because it is likely to contribute significantly to

public understanding of the operations or activities of government

and is not primarily in the commercial interest of the requestor.” 5

U.S.C. § 552(a)(4)(A)(iii) (2012).

The first prong of the test requires the requested information

be in the public interest. The FTC has promulgated a regulation

setting out four requirements a party making a FOIA request must

meet to satisfy this standard. 16 C.F.R. § 4.8(e)(2). First,

requestors must demonstrate that the information they seek concerns

the operations or activities of government. Second, they must

demonstrate that the disclosure is likely to contribute to an

understanding of the operations or activities of government. Third,

they must show that the disclosure will contribute to an

understanding of the subject by the public at large. Fourth, they

must demonstrate that the information will contribute significantly

to such understanding. Id.; see also Judicial Watch, Inc. v. U.S.

Dept. of Justice, 365 F.3d 1108, 1126 (D.C. Cir. 2004); Judicial

Watch, Inc. v. Rossotti, 326 F.3d 1309, 1312 (D.C. Cir. 2003). All

four requirements must be met in order to demonstrate that the

request is in the public interest. Id.

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 The second prong requires that the requested information not be

in the requestor’s commercial interest. First, the court must

evaluate whether the requestor has a commercial interest that would

be furthered by the information’s disclosure. Second, the court

must evaluate whether any identified commercial interest is

sufficiently large in comparison with the public interest in

disclosure, thus rendering any disclosure primarily in the

commercial interest of the requestor. 5 U.S.C. § 552(a)(4)(A)(iii);

see also 16 C.F.R. § 4.8(e)(2); Fed. CURE v. Lappin, 602 F. Supp. 2d

197, 201 (D.D.C. 2009).

Courts are to keep in mind that Congress amended FOIA to ensure

that it be “liberally construed in favor of waivers for

noncommercial requestors.” McClellan Ecological Seepage Situation

v. Carlucci, 835 F.2d 1282, 1284 (9th Cir. 1987) (citation omitted).

Fee waiver requests, however, should still be made with “reasonable

specificity,” Larson v. CIA, 843 F.2d 1481, 1483 (D.C. Cir. 1988)

(citing McClellan, 835 F.2d at 1285), and be based on more than

“conclusory allegations,” Nat’l Treasury Employees Union v. Griffin,

811 F.2d 644, 647 (D.C. Cir. 1987). The court shall review the

FTC’s fee waiver determinations de novo and its review “shall be

limited to the record before the agency.” 5 U.S.C. §

552(a)(4)(A)(vii). The requester has the burden of proving that its

request satisfies the public interest standard for fee waivers.

Larson, 843 F.2d at 1483.

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 a. Request #1 (FOIA-2011-01431)

Plaintiff is not entitled to a public interest fee waiver for

its first request because it does not satisfy the “public interest”

prong of the test.2 Plaintiff fails the “public interest” prong of

the test because the third element is not satisfied, even if the

first, second, and fourth elements are satisfied.

2
Plaintiff does not demonstrate any commercial interests in this
request. However, Plaintiff’s reasoning for satisfying the
“commercial interest” prong of the test is flawed. Plaintiff argues
that the information is not for commercial purposes since it is a
nonprofit. Plaintiff’s Opposition to Defendant’s Motion for Summary
Judgment (“Pl.’s Opp’n”) 26. The FTC, citing Forest Guardians v.
U.S. Dep’t of Interior, 416 F.3d 1173, 1177-78 (10th Cir. 2005),
responds that Plaintiff’s nonprofit status does not automatically
demonstrate its noncommercial interests in the request. Defendant’s
Reply in Support of its Motion for Summary Judgment (“Def.’s Reply”)
3.
The Court agrees with the FTC that Plaintiff’s nonprofit status
does not automatically demonstrate Plaintiff has no commercial
interests in the request. See Consumers' Checkbook, Ctr. for Study
of Servs. v. U.S. Dep’t of Health & Human Servs., 502 F. Supp. 2d
79, 89 (D.D.C. 2007) (hereinafter Consumers’ Checkbook) (holding
that the nonprofit requestor still had a commercial interest in the
requested information since it would disseminate the information for
a fee), rev'd on other grounds, 554 F.3d 1046 (D.C. Cir. 2009).
Nevertheless, the Court still finds that Plaintiff has
sufficiently demonstrated its noncommercial interests in its
request. A nonprofit will not have any commercial interests if its
primary interest in the information is to distribute it to the
public. See Consumers’ Checkbook, 502 F. Supp. 2d at 89. Here,
Plaintiff indicated that its interest in the information is to use
it to perform government oversight functions. Pl.’s Opp’n at 26.
Plaintiff has indicated that it is interested in using the
information to inform the public about the Guides’ effects on First
Amendment rights to freedom of speech. Compl. Ex. 5. As a result,
Plaintiff has demonstrated it has no commercial interests in its
first request.

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 The Court finds the first element is satisfied because the

requested information involves the operations or activities of

government. The information involves the operations and 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. Other courts in

this Circuit have found similar information to involve the

operations or activities of government. See Ctr. for Medicare

Advocacy v. U.S. Dep’t of Health & Human Servs., 577 F. Supp. 2d

221, 240-41 (D.D.C. 2008) (finding documents illustrating the

decision-making process used by agencies to create a new hearings

system involved the operations and activities of government);

Judicial Watch, Inc. v. U.S. Dep't of Transportation, No. 02-566,

2005 U.S. Dist. LEXIS 14025, at *11-12 (D.D.C. July 8, 2005)

(finding information regarding communications between a FAA Deputy

Administrator and technology companies concerned the operations or

activities of government).

Plaintiff also met its burden under the second element since

the information is likely to contribute to public understanding.

The information will likely contribute to public understanding

because it could inform social media authors and bloggers about the

Guides’ effects on their activities. See Rossotti, 326 F.3d at

1313-14 (finding that information would likely contribute to public

13
understanding as long as there is a potential for public

understanding). Plaintiff has also indicated that the information

on the FTC’s Guides would inform the public about how government

action impacts First Amendment rights. Compare Prison Legal News v.

Lappin, 436 F. Supp. 2d 17, 26 (D.D.C. 2006) (finding the requested

information satisfied the second element because it would provide

insight into how well the government managed prisons) with Judicial

Watch, Inc. v. U.S. Dep’t of Justice, 122 F. Supp. 2d 13, 18 (D.D.C.

2000) (hereinafter Judicial Watch I) (finding the requestor could

not satisfy this element without demonstrating how the requested

information will inform the public about government activities or

operations).

The fourth element is also satisfied since plaintiff has shown

the information will contribute significantly to public

understanding. The FTC argues that the requested information would

not significantly contribute to public understanding because the FTC

has already published synthesized information on the Guides’

enforcement online in a “What People Are Asking” document. See

Def.’s Mot. Summ. J. at 11; Def.’s Reply at 8. The FTC also argues

that it has published an article online regarding staff commentaries

and closing letters on investigations into violations of the Guides.

Id. Plaintiff, however, argues that not all information about the

drafting of the Guides and about all relevant FTC investigations on

possible violations of the Guides is publicly available. Pl.’s

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Opp’n at 30. Furthermore, Plaintiff argues that the “What People

are Asking” document is not sufficient to contribute to public

understanding because the document is only an eight-page summary

produced by the FTC that only vaguely illustrates how the agency

enforces the Guides. Id.

The Court agrees with Plaintiff on this issue. To show that

information will contribute significantly to public understanding,

Plaintiff must demonstrate that the requested information has not

met a threshold level of public availability. See Campbell v. U.S.

Dep’t of Justice, 164 F.3d 20, 36 (D.C. Cir. 1998). When the

requested information is not publicly available, it will more likely

contribute significantly to public understanding. See Fed. CURE,

602 F. Supp. 2d at 205-06. However, even if some of the requested

information is publicly available in synthesized form, there exists

some significant benefit to public understanding if the plaintiff

requests raw information from the agency to synthesize it and

perform a public oversight function. See Consumers' Checkbook, 502

F. Supp. 2d at 87-88. Nevertheless, the primary beneficiary of the

disclosure should still be the public. Nat'l Treasury Employees

Union, 811 F.2d at 647-48; Monroe-Bey v. FBI, 890 F. Supp. 2d 92, 98

(D.D.C. 2012); Van Fripp v. Parks, No. 97-0159, 2000 U.S. Dist.

LEXIS 20158, at *22. (D.D.C. Mar. 16, 2000).

Because Plaintiff claims not all information about the Guides’

drafting and about specific FTC investigations is in the public

15
domain, the requested information would contribute to public

understanding. Even if some synthesized information regarding the

Guides’ enforcement and investigations is available online, 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.

Nevertheless, Plaintiff did not satisfy the third element of

the public interest test because it has not demonstrated that the

requested information would increase understanding of the public at

large. 16 C.F.R. § 4.8(e)(2)(i)(C). Accordingly, the Court finds

that Plaintiff has not met the public interest prong of the public

interest fee waiver test.

To show the requested information would increase understanding

of the public at large, Plaintiff must demonstrate “in detailed and

non-conclusory terms,” that it has the intent and ability to

effectively convey the information to a broad segment of the public

and therefore, the FTC, as surrogate for the public, should foot the

bill for a fee waiver. See Rossotti, 326 F.3d at 1312; Judicial

Watch I, 122 F. Supp. 2d at 18. Although requestors are not

required to explain their dissemination plan with “pointless

specificity” to satisfy this element, they must identify several

methods of disseminating the information and provide some concrete

basis upon which the agency can conclude that those methods are

16
adequate to convey the requested information to a wide audience. See

Rossotti, 326 F.3d at 1314 (dissemination element satisfied where

plaintiff Judicial Watch identified nine ways it communicates

information to the public, including news releases, monthly

newsletters, radio and television programs it produces, and also

provided numerical estimates of the number of people reached through

some of these methods); Fed. CURE, 602 F. Supp. 2d at 204 (plaintiff

satisfied element where it “provided reasonably specific numbers

detailing its subscribers and readership” for its website,

newsletter and on-line discussion groups); Judicial Watch Inc., 185

F. Supp. 2d at 62 (plaintiff described “several mechanisms” for

disseminating information, including its website, blast faxes, and

radio and television programs); Landmark Legal Found. v. IRS, Case

No. 97-1474, 1998 U.S. Dist. LEXIS 21722 at *4-5 (D.D.C. Sept. 22,

1998)(organization identified six methods of distribution and

provided estimates of number of people reached via website,

newsletters, blast faxes, letters to Congress, etc.).

In this case, by contrast, COA has not met its burden.

Throughout its voluminous correspondence with the FTC regarding its

first FOIA request, it identified only two methods of dissemination,

which it discussed only in footnotes: its website and articles

published by news media that have relied upon COA’s past work on

other issues. See Compl. Exs. 5, 12. Plaintiff did not provide any

estimate of the number of people likely to view its website, nor did

17
it demonstrate other ways in which it would disseminate the

information itself, without relying on another source.3 Id. And

although COA provided a string cite of articles authored and

published by other outlets as a result of its past efforts to gather

information on other topics, it specified no organizations which

would disseminate this information. Id. Other courts have found

similar claims lack the specificity and certainty to support a

finding that a fee-waiver requestor has the ability to disseminate

information to a reasonably broad segment of the public. See, e.g.,

Oglesby v. Dep’t of the Army, 920 F.2d 57, 66 n.11 (D.C. Cir. 1990)

(finding a writer’s past work insufficient to justify a fee waiver);

Judicial Watch I, 122 F. Supp. 2d at 18-19 (finding the requestor

did not show its intent and ability to disseminate when it had not

identified the media contacts that would produce the requested

information); Judicial Watch, Inc. v. U.S. Dep’t of Justice, No.

Civ. 99-2315, 2000 U.S. Dist. LEXIS 19789 at *14-15 (D.D.C. Aug. 17,

2000) (finding requestor’s past record in uncovering information

“simply irrelevant” to fee waiver analysis because a FOIA analysis

3
In its January 27, 2012 letter, COA argued it should receive a fee
waiver as a representative of the news media – not under the public
interest exemption – because it had published information on
Facebook, Twitter, and via an email newsletter to “subscribers”
during the previous five months. Compl. Ex. 12 at 7. Again,
however, plaintiff provided no details about its online presence,
including any information about numbers of subscribers, viewers or
followers, nor did it mention the frequency of its posts or
publications.

18
focuses on the “subject and impact of the particular disclosure, not

the record of the requesting party”).

In its Opposition, Plaintiff argues that it meets the

dissemination element by pointing to its past experience turning raw

materials into distinct works and disseminating information to its

media contacts. Pl.’s Opp’n at 27. Plaintiff also claims it would

disseminate the information through its media contacts, on its

website, via its newsletter, and through its social media sites.

Pl.’s Opp’n at 28. The FTC, however, correctly argues that

Plaintiff did not provide most of this evidence during the lengthy

administrative process, and correctly states that judicial review of

fee waiver denials is limited to the administrative record. Def.’s

Mot. Summ. J. at 12; see Def.’s Reply at 4-7.

Based on the foregoing, the Court concludes that plaintiff has

not demonstrated with sufficient specificity that it has the ability

to convey the information in its first FOIA request to the general

public. Because the plaintiff did not satisfy the third element of

the public interest prong of the test, the FTC properly denied

Plaintiff a public interest fee waiver for its first request.

b. Request #2 (FOIA-2012-00227)

Plaintiff is not entitled to a public interest fee waiver for

its second request concerning the FTC’s history granting public

interest fee waivers. This request fails the “public interest”

19
prong because while the first and second elements of the test are

satisfied, the third and fourth elements are not.

Plaintiff satisfies the first element since the information it

requests involves the operations or activities of government. The

requested information involves the operations and activities of

government because it concerns the FTC’s decision-making process on

fee waivers. See Judicial Watch, Inc., 365 F.3d at 1126-27 (finding

information on FOIA requests regarding presidential pardons involved

the operations and activities of government).

Plaintiff satisfies the second element since the information is

likely to contribute to public understanding. The requested

information is likely to contribute to public understanding by

enlightening the public on how to obtain public interest fee waivers

for FOIA requests. See Rossotti, 326 F.3d at 1313-14; Prison Legal

News, 436 F. Supp. 2d at 26.

However, Plaintiff has not met the third element and shown that

the requested information will contribute to understanding of the

public at large. Plaintiff and the FTC largely repeat their

arguments regarding the first request for this second request. The

FTC, however, also adds that Plaintiff did not satisfy this element

because Plaintiff’s website was not even functional at the time of

this second request. Def.’s Mot. Summ. J. at 11; Def.’s Reply at 16.

Plaintiff contests this fact. Plaintiff’s Statement of Genuine

20
Issues and Response to Defendant’s Statement of Material Facts

(“Pl.’s Genuine Issues”) 2-3.

The Court finds that Plaintiff did not satisfy this third

element for the same reasons that Plaintiff did not satisfy this

third element for its first request: COA did not specifically

demonstrate its intent and ability to disseminate the requested

information to the public. Regardless of whether or not the website

was functional, Plaintiff made no attempt to explain how many people

likely view its website and thus would likely view the requested

information. See generally Pl.’s Opp’n. Plaintiff’s lack of

specificity in this matter means it has not met its burden to

indicate its intent and ability to disseminate the information to

the public. See Rossotti, 326 F.3d at 1314; Fed. CURE, 602 F. Supp.

2d at 203; Judicial Watch Inc., 2005 U.S. Dist. LEXIS 14025, at *13-

14.

Plaintiff has also not satisfied the fourth element of the test

and shown that the information would significantly contribute to

public understanding. Because the primary beneficiary of the

requested information is Plaintiff, the information is not likely to

significantly contribute to public understanding. See Nat'l

Treasury Employees Union, 811 F.2d at 647-49; Monroe-Bey, 890 F.

Supp. 2d at 98.

Plaintiff argues that it satisfies this element because it will

write a report describing how the FTC grants public interest fee

21
waivers, which will benefit the public. Opp’n at 7-8, 31-32. The

FTC argues that Plaintiff has not shown that the report would

benefit the public. Def.’s Mot. Summ. J. at 12; see Def.’s Reply at

14.

The Court agrees with the FTC. In National Treasury Employees

Union, the court denied the plaintiff a fee waiver for a FOIA

request concerning information on employees who had previously

received awards and bonuses. 811 F.2d at 648. Even though the

union’s large size meant the information could improve labor

relations and working conditions for a large part of the population,

the court still denied the union a fee waiver because the union

primarily made the request to benefit its “unique and limited”

private interests. Id.

Similar to the union’s requested information, Plaintiff’s

proposed report on the FTC’s fee waiver grants may well benefit the

public, but the record does not indicate that Plaintiff primarily

made this second request in order to write that report to benefit

the public. First, Plaintiff made this second request in the same

letter it was appealing the FTC’s denial of a public interest fee

waiver for its first request. Compl. Ex. 5. In fact, Plaintiff

made this second request contingent on the possibility that “upon

review of [its] appeal, the FTC continues to deny Cause of Action’s

claims for a fee waiver under the public interest exception.” Id.

Because Plaintiff only wanted to pursue this second request if the

22
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. Second, Plaintiff

never expressly indicated in this second request that it had plans

to use the information to inform the public about the FTC’s history

of granting fee waivers. Id. This fact has made the Court

skeptical of Plaintiff’s intentions of benefiting the public with

this second request, because Plaintiff had made clear its intentions

of informing the public when it made its first FOIA request. See

Compl. Ex. 1. Because plaintiff has not demonstrated that the

public was the primary beneficiary of the requested information,

Plaintiff does not satisfy the fourth element of the “public

interest” prong of the test.4

4
Having concluded that COA’s second FOIA request fails the public
interest prong of the test, it is unnecessary to determine whether
it meets the commercial interest prong. See 5 U.S.C. §
552(a)(4)(A)(iii) (fee waiver granted only if the requested
information contributes to “public understanding of the operations
or activities of government and is not primarily in the commercial
interest of the requestor.” (emphasis added). Even if the Court
were to consider the commercial interest prong of the test, however,
it would likely find COA’s second request fails that as well,
because of its nexus with the lawsuit plaintiff filed against the
agency. See Rozet v. HUD, 59 F. Supp. 2d 55, 57 (D.D.C.
1999)(requested information designed to further plaintiff’s
commercial position in a civil suit with agency advances plaintiff’s
commercial interest, rather than the public interest); see also
Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 816 (2d Cir. 1994)
(request for records relating to processing of plaintiff’s own FOIA
requests were in preparation for litigation with the agency over
those requests, and therefore not in the public interest).

23
 Accordingly, the FTC properly denied Plaintiff’s request for

a public interest fee waiver for its second request.

c. Request #3 (FOIA-2012-00687)

The fee waiver issue for Plaintiff’s third request is moot

because no fees were associated with the request. As set forth

above, plaintiff was designated as an “Other (General Public)”

requestor, and thus under 16 C.F.R. § 4.8(b)(3) was entitled to 100

disclosable responsive pages free of charge. Def.’s Mot. Summ. J.

at 12; Def.’s Reply at 17;. Plaintiff’s third request yielded

ninety-five responsive pages. The agency determined that sixteen

pages were exempt and provided plaintiff with seventy nine pages

free of charge. Plaintiff did not have to pay a fee for the request

and the FTC did not have to consider whether Plaintiff was entitled

to a fee waiver. Id.

Plaintiff claims, however, that the FTC should have still made

a determination on its fee waiver request regardless of how many

documents were ultimately withheld. Pl.’s Opp’n at 33. Plaintiff

contends that had it been entitled to receive more than 100 pages

under a revised search, there would have been a fee associated with

its third request. Id. Plaintiff bolsters its argument by pointing

to an instance where the FTC granted a fee waiver to another group

even when the FTC only located thirty-five pages, six of which were

exempt. Id. The FTC responds by claiming that fee waiver

24
determinations are made on a case-by-case basis. Def.’s Reply at

18.

The Court agrees with the FTC on this issue. Agencies are

discouraged from making fee waiver determinations based on the

possibility that some records may ultimately be determined to be

exempt from disclosure. Schoenman v. FBI, 604 F. Supp. 2d 174, 190

(D.D.C. 2009) (quoting Judicial Watch, Inc., 2005 U.S. Dist. LEXIS

14025, at *12); see also Carney, 19 F.3d at 815 (finding that

agencies should only deny fee waiver requests for “patently exempt

documents”). Courts do not want agencies to deny fee waivers based

on the possibility of the documents’ exempt status only because it

might permit an agency to “require a requestor who is otherwise

entitled to a fee waiver to make payment even before the agency’s

claimed exemption has been tested in court” or because it might

discourage requestors from testing the boundaries of FOIA’s

exemptions. Carney, 19 F.3d at 815; see Schoenman, 604 F. Supp. 2d

at 190; Judicial Watch, Inc., 2005 U.S. Dist. LEXIS 14025, at *12.

In Schoenman, the court found it unacceptable for the agency to deny

the requestor a fee waiver after finding that portions of the

requested documents were exempted. 604 F. Supp. 2d at 190. In

Judicial Watch, Inc., the agency was not permitted to deny the

requestor a fee waiver after finding most of the information was

exempt and the non-exempt information did not satisfy the public

interest fee waiver test. 2005 U.S. Dist. LEXIS 14025, at *12.

25
 However, unlike Schoenman and Judicial Watch, Inc., the 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. As a

result, the 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. Furthermore, the concern that the FTC made a fee

waiver determination before the exemptions were tested in court is

not relevant here. 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 under 16 C.F.R. § 4.8(b)(3).

Moreover, Plaintiff’s arguments that it might be required to

pay a fee if a revised search produces more than 100 pages is

unpersuasive. It is inappropriate to speculate about the existence

of other responsive documents for Plaintiff’s request that may have

entitled Plaintiff to more than 100 pages. See SafeCard Services,

926 F.2d at 1200 (finding that agency affidavits or declarations are

accorded “a presumption of good faith, which cannot be rebutted by

purely speculative claims about the existence and discoverability of

other documents”). The FTC’s affidavits indicate it performed a

thorough and diligent search regarding Plaintiff’s request, Gray

Decl. at ¶¶ 24-26, and COA does not challenge the adequacy of the

26
search in this litigation. Thus, the fee waiver issue for

Plaintiff’s third request is moot.

2. “Representative of the News Media” Fee Waiver

Fees associated with FOIA requests are “limited to reasonable

standard charges for document duplication when records are not

sought for commercial use and the request is made by . . . a

representative of the news media.” 5 U.S.C. § 552(a)(4)(A)(ii)(II)

(2012). A representative of the news media is a person or entity

that (1) gathers information of potential interest to a segment of

the public; (2) uses its editorial skills to turn the raw materials

into a distinct work; and (3) distributes that work to an audience.

Nat’l Sec. Archive v. U.S. Dep’t of Def., 880 F.2d 1381, 1387 (D.C.

Cir. 1989). The Court’s review of the agency’s denial is de novo.

See Id., 880 F.2d at 1383; Elec. Privacy Info. Ctr. v. U.S. Dep’t of

Def., 241 F. Supp. 2d 5, 9 (D.D.C. 2003) (hereinafter “EPIC”);

Judicial Watch, Inc. v. U.S. Dep’t of Justice, 185 F. Supp. 2d at

59. The Court’s review is also limited to the record before the

agency. Judicial Watch, Inc., 185 F. Supp. 2d at 59. The requestor

has the burden of proving it is a representative of the news media.

Id. at 60; Hall v. CIA, Case 04-814, 2005 U.S. Dist. LEXIS 6638, *21

(D.D.C. Apr. 13, 2005).

For the reasons set forth in Section III.A.1.C above,

plaintiff’s request for a fee waiver for its third request is moot

because no fees were associated with the request. Accordingly, the

27
Court must determine whether Plaintiff sufficiently demonstrated its

qualification for a “representative of the news media” fee waiver

for its first and second FOIA requests.5

The Court concludes Plaintiff has not sufficiently demonstrated

it is entitled to “representative of the news media” for either

request. Plaintiff satisfies the first element of the definition

but not the second or third elements.

Plaintiff satisfies the first element because it gathers

information of potential interest to a segment of the public.

Plaintiff’s first request regarding the FTC’s Guides satisfies this

element because the request involves gathering information on social

media authors and blogger’s First Amendment rights. See EPIC, 241 F.

Supp. 2d at 11 (finding information on privacy issues and civil

liberties was of potential interest to the public). Plaintiff’s

second request regarding fee waiver denials also satisfies this

element because it involves gathering information on government

decisions that can affect parts of the population. See Nat’l Sec.

5
The FTC claims COA did not exhaust its administrative remedies for
its first request because it failed to raise the news media issue in
its initial appeal of FTC’s denial of a fee waiver. See Compl. Ex.
5, Compl. Ex. 6 n.1. Plaintiff responds that it “continuously
asserted that it was a news media requestor” throughout its
voluminous correspondence with the FTC, which often addressed
multiple FOIA requests and asserted multiple theories for fee
waivers within the same letters. Opp’n at 5, citing Compl. Ex. 3 at
2, Ex. 8 at 5, Ex. 12 at 7. Assuming without deciding that
plaintiff exhausted its administrative remedies, plaintiff’s request
is denied on the merits for the reasons set forth below.

28
Archive, 880 F.2d at 1386 (finding information on U.S. foreign

affairs was of potential interest to the public).

Plaintiff, however, does not satisfy the second element by

showing it uses its editorial skills to turn raw material into a

distinct work. To satisfy the second element, Plaintiff must

demonstrate that it would use information from a range of sources to

independently produce a unique product. Nat’l Sec. Archive, 880

F.2d at 1386; EPIC, 241 F. Supp. 2d at 11-12. In National Security

Archive, the requestor satisfied this element because it was

gathering raw material from a wide variety of sources in addition to

the FOIA requests at issue in order to create “document sets” on

specific topics, as it previously had done in a published book. 880

F.2d at 1386. The requestor in EPIC identified seven books it

previously published that contained information derived from various

sources beyond FOIA requests to substantiate its intent and ability

to do so again. 241 F. Supp. 2d at 11-12.

COA has not shown it is like the plaintiffs in those cases.

The 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. Pl.’s Opp’n at 36-37, see also Compl. ¶¶ 12,25, Ex. 8 at

29
4, Ex. 12 at 7.6 Also unlike those plaintiffs, COA 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. See

Compl. Ex. 12. Accordingly, it did not satisfy the second element

of the news media requestor definition.

Even if it had satisfied the second element, however, COA would

not qualify for the news media fee waiver because it did not satisfy

the third element: that it has an intent and ability to disseminate

its work. To satisfy this element, Plaintiff must demonstrate that

it has the intent and ability to disseminate the requested

information to the public rather than merely make it available;

Plaintiff must also demonstrate that its operational activities are

especially organized around doing so. See EPIC, 241 F. Supp. 2d. at

12-13; Nat’l Sec. Archive, 880 F.2d at 1386-87; Judicial Watch,

Inc., 185 F. Supp. 2d at 59-60; Judicial Watch I, 122 F. Supp. 2d at

21.

Plaintiff points to its periodical newsletter, website, social

media sites, and relationships with media contacts as proof of its

intent and ability to disseminate the information. Pl.’s Opp’n at

36-38. The FTC argues that Plaintiff did not demonstrate it could

6
Plaintiff provided slightly more information regarding its
publishing practices in its April 4, 2012 letter to the FTC, but
this letter was solely in reference to its third FOIA request. It
was not before the Agency in its determination regarding plaintiff’s
first two requests. See Compl. Ex. 15.

30
disseminate its work to an audience because it characterized its

actions as more like a middleman for dissemination to the media than

a representative of the media itself. Def.’s Mot. Summ. J. at 11-

12; Def.’s Reply at 11. Furthermore, the FTC argues that

Plaintiff’s website was not functioning at the time of the second

request and that its list of media contacts is not part of the

administrative record. Id.

Upon review of the administrative record, the Court finds

Plaintiff did not satisfy the third element of the news media

requestor definition. First, Plaintiff has not specifically

demonstrated its intent and ability to disseminate the requested

information to the public rather than merely make it available. In

EPIC, the requestor satisfied this element by indicating that its

newsletter reached 15,000 readers and had been published every two

weeks for the past eight years. 241 F. Supp. 2d at 12-13. By

contrast, COA’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. Although COA claimed it would

disseminate the requested information through its periodical

newsletter, website, social media sites, and media contacts,

Plaintiff 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. Moreover, even assuming

COA’s media contacts would publish articles or reports involving the

31
information, this is still not enough; COA “cannot simply borrow

[its media contacts’] credentials for purposes of proving its own

entitlement to a “representative of the news media” fee limitation.”

Hall v. CIA, 2005 U.S. Dist. LEXIS 6638, *22 n.11. Thus, even

assuming Plaintiff’s website was functioning and its list of media

contacts was in the administrative record, Plaintiff’s website and

media contacts would not have been sufficient to satisfy this

element.

Second, the administrative record does not show that

Plaintiff’s activities are organized especially around

dissemination. For a “representative of the news media” fee waiver

request, the requestor should be identified by its activities rather

than by its description. EPIC, 241 F. Supp. 2d at 11-12; Nat’l Sec.

Archive, 880 F.2d at 1385-86. In EPIC, the plaintiff was organized

around dissemination since it was an educational institution engaged

in publishing books and contributing to other publications. 241 F.

Supp. 2d at 1112; see also Nat’l Sec. Archive, 880 F.2d at 1386

(finding the plaintiff archivist engaged in scholarly research was a

representative of the news media). In the Judicial Watch, Inc.

cases, on the other hand, the requestor did not satisfy this element

because while it had shown it would provide the information to

reporters, post it on its website, blast press releases, and convey

the information in its radio and television appearances, the

requestor ultimately admitted that its activities mainly involved

32
performing nonprofit government watchdog functions. Judicial Watch,

Inc., 185 F. Supp. 2d at 59-60; Judicial Watch I, 122 F. Supp. 2d at

21. As a result, the Courts found the requestor was more like a

middleman for dissemination to the public rather than a

representative of the news media. Id.

Similar to the Judicial Watch, Inc. cases, Plaintiff has

admitted to this Court that it is an “independent 501(c)(3) public

interest organization” and that its activities involve “us[ing]

public advocacy and legal reform strategies to ensure greater

transparency in government, protect taxpayer interests, and promote

economic freedom.” Compl. ¶ 5; Ex. 8. Unlike the research

organizations in EPIC and National Security Archive, Plaintiff

performs its activities to aid in government accountability and is

thus more like a middleman for dissemination to the media. Because

Plaintiff did not demonstrate that it distributes work to an

audience and is especially organized around doing so, it cannot be

defined as a representative of the news media.

B. EXEMPTION 5

The final issue before this Court is whether the FTC properly

withheld documents responsive to Plaintiff’s second and third FOIA

requests under Exemption 5.7 Because plaintiff did not exhaust its

administrative remedies for this issue with respect to its second

7
The FTC released in full 100 pages of responsive records in
response to COA’s first request, claiming no exemptions from
withholding. Gray Decl. ¶¶ 14-15.

33
request, the Court cannot address whether documents for Plaintiff’s

second request were properly withheld. With regard to Plaintiff’s

third request, the Court finds that the FTC properly withheld the

memoranda under Exemption 5’s deliberative process privilege and

Exemption 5’s attorney work-product privilege but improperly

withheld the screenshots under both privileges.

1. FOIA Request #2 (FOIA-2012-00227)

The FTC argues that this Court cannot review the issue of FTC’s

withholding of documents for Plaintiff’s second request since

Plaintiff did not exhaust its administrative remedies. Def.’s Mot.

Summ. J. at 16; Def.’s Reply at 19-20. Specifically, the FTC

contends that plaintiff did not appeal the agency’s withholding of

documents pursuant to Exemption 5 that were responsive to

plaintiff’s second FOIA request. Def.’s Reply at 20. However,

Plaintiff claims that its April 4, 2012 letter in which it asked for

a Vaughn index demonstrates its challenge to the FTC’s withholding

of documents for its second request. Pl.’s Opp’n at 38 n.19.

Plaintiff argues that any full appeal of the FTC’s withholding for

its second request would have been premature because the FTC had not

yet provided a Vaughn index to satisfy its burden of proving the

documents’ eligibility for the claimed exemptions. Id.

The Court agrees with the FTC. Requestors must exhaust all

administrative remedies before seeking judicial review of agency

actions. Oglesby, 920 F.2d at 62-63; Dettmann v. U.S. Dep’t of

34
Justice, 802 F.2d 1472, 1476-77 (D.C. Cir. 1986). A requestor who

does not make any objections to the agency’s actions regarding a

FOIA request has not exhausted its administrative remedies with

respect to that agency action. Dettmann, 802 F.2d at 1477 (holding

that it is possible to exhaust administrative remedies with respect

to one aspect of a FOIA request but not another). Exhaustion is

usually required so that the agency has an opportunity to exercise

its discretion and expertise on the matter and to make a factual

record to support its decision before a court interferes. Hidalgo

v. FBI, 344 F.3d 1256, 1258 (D.C. Cir. 2003).

In this case, Plaintiff did not specifically object to the

FTC’s withholding of documents responsive to its second request.

Plaintiff points to its April 4, 2012 letter as proof of its appeal

but that letter only referred to Plaintiff’s third FOIA request.

See Compl. Exs. 15-16. Because Plaintiff did not specifically

appeal the withholding with regard to its second request, the FTC

did not have a chance to address the exemptions relating to the

second request before Plaintiff filed this suit. See Compl. Exs.

15, 16. Consequently, the purposes of exhaustion were not satisfied

in this case as the FTC has not been able to consider Plaintiff’s

issue before this Court interferes.

Furthermore, Plaintiff’s claims that an administrative appeal

would have been premature because no Vaughn index had yet been

provided are unavailing. Plaintiff was not entitled to a Vaughn

35
index during the FTC’s administrative appeals process. See Citizens

for Resp. & Ethics in Wash. v. FEC, 711 F.3d 180, 187 n.5 (D.C. Cir.

2013). As a result, Plaintiff’s appeal could not have been

contingent on the provision of a Vaughn index.

2. FOIA Request #3 (FOIA-2012-00687)

The FTC also argues that Plaintiff did not exhaust its

administrative remedies regarding the agency’s withholding of

documents responsive to its third request. Def.’s Reply at 17.

Unlike Plaintiff’s second request, however, the Court finds

Plaintiff did exhaust its administrative remedies for this request

by objecting to the FTC’s conclusory withholding of documents for

its third FOIA request in its April 4, 2012 letter of appeal. See

Compl. Ex. 15 at 1-4. The purposes of the exhaustion requirement

have been met since the FTC had an opportunity to address the matter

when it responded to Plaintiff’s appeal in its May 7, 2012 letter.

See Compl. Ex. 16, see also Hidalgo, 344 F.3d at 1258. Thus, the

Court can address whether the FTC properly withheld the documents

under Exemption 5 for the third request.

The defendant withheld two categories of documents under

Exemption 5: (1) two screen shots of COA’s website taken in December

2011; and (2) three short memoranda, between four and six pages in

length, prepared by paralegals for agency counsel between September

and December 2011 regarding COA’s FOIA requests. The agency relies

on two privileges to justify withholding under Exemption 5: the

36
deliberative process privilege and the attorney work product

privileges. See Compl. Ex. 14. The privileges will be addressed in

turn.

a. Deliberative Process Privilege

Exemption 5 allows agencies to withhold “inter-agency or intra-

agency memorandums or letters which would not be available by law to

a party other than an agency in litigation with the agency.” 5

U.S.C. § 552(b)(5). Exemption 5’s deliberative process privilege

protects agency documents that are both (1) predecisional and (2)

deliberative. Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151 (D.C.

Cir. 2006); Baker & Hoestetler LLP v. U.S. Dep’t of Commerce, 473

F.3d 312, 321 (D.C. Cir. 2006). To be predecisional, documents must

precede an identifiable agency decision, and the information must

have been used in the decision making process. Morley v. CIA, 508

F.3d 1108, 1127 (D.C. Cir. 2007). Documents are deliberative if

they reflect the give-and-take of the consultative process. Coastal

States Gas Corp. v. U.S. Dep’t of Energy, 617 F.2d 854, 866 (D.C.

Cir. 1980). The analysis is a functional approach and courts must

determine whether disclosure of the document would “stifle honest

and frank communication within the agency.” Id. at 866. Documents

made by a subordinate for a superior, which contain recommendations

or legal advice based on opinion to aid in making complex decisions,

are considered deliberative. Id. at 868-869; Brinton v. U.S. Dep't

of State, 636 F.2d 600, 604 (D.C. Cir. 1980). Even factual material

37
prepared by staff for a superior can be deliberative when the

documents likely incorporate staff opinions on which facts are

important for the superior to make a decision. Mapother v. U.S.

Dep't of Justice, 3 F.3d 1533, 1538 (D.C. Cir. 1993); Montrose Chem.

Corp. of California v. Train, 491 F.2d 63, 67-68 (D.C. Cir. 1974).

It does not appear that Plaintiff challenges the FTC’s

invocation of the deliberative process privilege in response to

Plaintiff’s third request. See Opp’n at 43-44. Nevertheless,

because Plaintiff clearly intended to challenge the withholding

under Exemption 5, the Court addresses the issue and concludes that

the FTC properly withheld the memoranda but not the screenshots

under Exemption 5’s deliberative process privilege.

The FTC argues that the memoranda were properly withheld under

the deliberative process privilege because they consist of the

subordinate employee’s “personal thoughts, opinions and analysis,

and his predecisional recommendations to his supervisor.” Def.’s

Mot. Summ. J. at 17; see Def.’s Reply at 23. The Court agrees. The

memoranda were specifically written with regards to Plaintiff’s FOIA

requests. Stearns Decl. at ¶¶ 33-34. The memoranda are

deliberative 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. Def.’s Mot. Summ. J. Ex. T;

Stearns Decl. at ¶ 33-34. Even if the memoranda contain facts, the

38
affidavits demonstrate that these facts involve the subordinate’s

opinions since the facts “[reflect] the author’s judgment and

assessment of the relevant data.” Def.’s Mot. Summ. J. Ex. T.

To the extent Plaintiff raises a segregability challenge, it is

unavailing. The Court finds that the FTC sufficiently met its duty

to detail whether any segregable items could have been disclosed.

The Stearns declaration, see Stearns Decl. at ¶ 38, and the Vaughn

index, see Def.’s Mot. Summ. J. Ex. T, indicate that no information

could be segregated because the information was inextricably

intertwined with the subordinate’s thoughts and personal opinions

regarding the agency’s response to COA’s FOIA requests. See Mead

Data Cent., Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 260

(D.C. Cir. 1977) (requiring an agency to explain if non-exempt

portions are “inextricably intertwined with exempt portions” and

thus cannot be disclosed); Edmonds Inst. v. U.S. Dep’t of the

Interior, 383 F. Supp. 2d 105, 109-10 (D.D.C. 2005) (requiring an

agency to “explain whether there is any information that can be

segregated as non-exempt from the rest of the document”). The Court

therefore finds that, as to the three withheld memoranda, any

nonexempt portions are so intertwined with exempt portions that no

portion can be disclosed.

However, the FTC improperly withheld the screenshots under the

deliberative process privilege. “Factual material is not protected

under the deliberative process unless it is ‘inextricably

39
intertwined’ with the deliberative material.” Judicial Watch, Inc.

v. U.S. Dep't of Justice, 432 F.3d 366, 372 (D.C. Cir. 2005) (citing

In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997); Bristol-Myers

Co. v. FTC, 424 F.2d 935, 939 (D.C. Cir. 1970); Am. Civil Liberties

Union v. FBI, 429 F. Supp. 2d 179, 190 (D.D.C. 2006). The

screenshots are factual material because according to the FTC’s

affidavits, the screenshots are “images, derived from accessing

COA’s website, that depict the functionality, or the lack thereof,

of COA’s website.” Suppl. Decl. of Dione Jackson Stearns ¶ 6. 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. Def.’s Mot. Summ. J. Ex. T. Thus, there

is also no “deliberative” material upon which the screenshots could

be “inextricably intertwined.” As a result, the screenshots cannot

be properly withheld under Exemption 5’s deliberative process

privilege.

As a result, the FTC has met its burden to demonstrate that the

memoranda, but not the screenshots, were properly withheld under the

deliberative process privilege.

40
 b. Attorney Work-Product Privilege

Exemption 5 can be construed as exempting documents that are

normally privileged in the civil discovery context, including

documents protected by the attorney work-product privilege. NLRB v.

Sears, Roebuck & Co., 421 U.S. 132, 154 (1985). The work-product

doctrine protects materials “prepared in anticipation of litigation

or for trial by or for another party or its representative. . . .”

Fed. R. Civ. P. 26(b)(3)(A). The privilege is narrow and is

primarily applied to protect the adversarial process by allaying

attorneys’ fears that their thoughts and opinions could be exposed

to their adversaries. Coastal States Gas Corp., 617 F.2d at 864

(citing Jordan v. U.S. Dep’t of Justice, 591 F.2d 753, 775 (D.C.

Cir. 1978)). Thus, documents that would not be “routinely” or

“normally” available to parties during litigation fall under the

attorney work-product privilege of Exemption 5. Sears, Roebuck &

Co., 421 U.S. at 148-49.

In assessing whether the proponent has carried its burden to

show a document is protected as work-product, the relevant inquiry

is “whether, in light of the nature of the document and the factual

situation in the particular case, the document can fairly be said to

have been prepared . . . because of the prospect of litigation.”

EEOC v. Lutheran Soc. Servs., 186 F.3d 959, 968 (D.C. Cir. 1999).

Although the agency need not have a specific claim in mind when

preparing the documents, there must exist some articulable claim

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that is likely to lead to litigation in order to qualify the

documents as attorney work-product. Coastal States Gas Corp., 617

F.2d at 865; Schiller v. NLRB, 964 F.2d 1205, 1208 (D.C. Cir. 1992)

abrogated on other grounds by Milner v. Dep't of Navy, 131 S. Ct.

1259 (2011); Am. Immigration Council v. Dep’t of Homeland Security,

905 F. Supp. 2d 206, 221 (D.D.C. 2012) (work product encompasses

documents prepared for litigation that is “foreseeable,” if not

necessarily imminent). As another judge on this Court recently

observed:

The Circuit has drawn a line between neutral, objective
analyses of agency regulations and more pointed documents that
recommend how to proceed further with specific investigations
or advise the agency of the types of legal challenges likely to
be mounted against a proposed program, potential defenses
available to the agency, and the likely outcome. Neutral,
objective analysis is like an agency manual, fleshing out the
meaning of the law, and thus is not prepared in anticipation of
litigation. More pointed advice, however, anticipates
litigation.

Am. Immigration Council, 905 F. Supp. 2d at 221-222 (citations and

quotation marks omitted).

The FTC argues that the memoranda were properly withheld under

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. Def.’s Mot.

Summ. J. at 16-17; see Def.’s Reply at 23-24. Indeed, the final

withheld memorandum, dated December 16, 2011, was prepared after COA

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had explicitly threatened the agency with litigation. See Compl.

Ex. 9, Letter from COA to FTC dated Dec. 12, 2011 at 3 (“We question

your purported reliance on Ogelsby, but will be more than happy to

take that issue up with the District Court should you persist in

denying our fee waiver.”).

Because the FTC’s affidavits and Vaughn index consistently

demonstrate that the documents were prepared in reasonable

anticipation of litigation with Plaintiff, the FTC has met its

burden to show that the memoranda fall under Exemption 5’s attorney

work-product privilege. As a result, there is no need to perform an

in-camera inspection of the memoranda. See Elec. Privacy Info.

Center v. U.S. Dep’t of Justice, 584 F. Supp. 2d 65, 83 (D.D.C.

2008) (finding in-camera review appropriate where agency affidavits

in support of a claim of exemption were insufficiently detailed);

Mehl v. EPA, 797 F. Supp. 43, 46 (D.D.C. 1992) (deciding to perform

an in-camera review of the documents in question because a publicly

available report describing the documents contradicted the agency’s

affidavits describing the same documents). Moreover, a document

protected by the work product privilege “is fully protected,”

thereby requiring no segregability analysis. Judicial Watch, Inc.

v. DOJ, 432 F.3d at 371.

However, the FTC improperly withheld the screenshots under the

attorney work-product privilege. It is true that Exemption 5’s

attorney work-product privilege protects any part of a document

43
prepared in anticipation of litigation, including the opinions and

legal theories as well as the facts. Judicial Watch, Inc., 432 F.3d

at 371; Martin v. Office of Special Counsel, 819 F.2d 1181, 1187

(D.C. Cir. 1987); Tax Analysts v. IRS, 117 F.3d 607, 620 (D.C. Cir.

1997). Furthermore, unlike the deliberative process privilege, the

attorney work-product privilege does not require segregability of

the facts from the opinions. This practice ensures that the

attorney’s appraisal of factual evidence is protected. Exxon Corp.

v. FTC, 476 F. Supp. 713, 722-723 (D.D.C. 1979). Nevertheless, when

documents are purely factual, Exemption 5’s attorney work-product

privilege no longer applies. Mervin v. FTC, 591 F.2d 821, 826 (D.C.

Cir. 1978) (“[T]he government cannot exempt pure statements of fact

from disclosure by calling them attorney work-product”); Exxon

Corp., 476 F. Supp. at 722-23. Thus, the same reasoning that

precluded the screenshots as exempted under the deliberative process

privilege precludes them as exempted under the attorney work-product

privilege. As 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 were

improperly withheld under Exemption 5’s attorney work-product

privilege.

Thus, the FTC properly withheld the memoranda under Exemption

5’s attorney work-product privilege but improperly did so for the

screenshots.

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IV. CONCLUSION

For the foregoing reasons, Defendant’s motion for summary

judgment is GRANTED IN PART AND DENIED IN PART. The motion is

GRANTED with respect to Plaintiff’s applications for fee waivers,

and is further GRANTED with respect to the Defendant’s withholding

of documents responsive to Plaintiff’s second FOIA request, and its

withholding of memoranda responsive to Plaintiff’s third FOIA

request. The motion is DENIED with respect to the FTC’s decision to

withhold screenshots of Plaintiff’s website responsive to its third

FOIA request. A separate order accompanies this memorandum opinion.

Signed: Emmet G. Sullivan
United States District Judge
August 19, 2013

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