Cause of Action v. Federal Trade Commission, 961 F. Supp. 2d 142

Background

Cause of Action (COA), a nonprofit government-transparency group, submitted three FOIA requests to the FTC (2011–2012) seeking documents about revisions and enforcement of the FTC’s Endorsements and Testimonials Guides and about the FTC’s fee-waiver practices.
FTC designated COA as "Other (General Public)," released 100 pages free under its regulation, and denied COA’s requests for (1) public-interest fee waivers and (2) treatment as a "representative of the news media" for the first two requests; the third request produced 95 responsive pages (79 released, 16 withheld).
COA administratively appealed the fee-waiver denials and some withholdings; FTC affirmed denials for fee waivers and withheld certain records under FOIA Exemption 5 (deliberative process and attorney work-product).
COA sued in district court challenging (a) the FTC’s denial of fee waivers and (b) the FTC’s withholding of specific documents under Exemption 5; cross-motions for summary judgment followed.
The Court reviewed fee-waiver issues de novo on the administrative record and applied standard FOIA exemptions law to withheld documents; it found FTC’s denials of fee waivers proper and split on Exemption 5 withholdings.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether FTC improperly denied a public-interest fee waiver for Request #1 (Guides/enforcement)	COA: disclosure would significantly advance public understanding of FTC activities and affect bloggers’ First Amendment rights; COA would disseminate via website, newsletter, media contacts	FTC: COA failed to show it would convey results to the public at large with sufficient specificity; some material already publicly available	Denied — COA failed the dissemination element (public at large) of the public-interest test
Whether FTC improperly denied a public-interest fee waiver for Request #2 (FTC fee-waiver history/process)	COA: information about FTC fee-waiver practices is of public interest and would be used to inform the public	FTC: COA sought the records primarily to aid its own litigation/appeal and did not show public dissemination or significant public benefit	Denied — COA failed to show dissemination to the public and failed to show primary public benefit
Whether fee-waiver issue for Request #3 (95 pages located) was ripe / required decision	COA: FTC should have ruled on fee-waiver regardless because a later/revised search could produce >100 pages and fees	FTC: only <100 responsive pages were located; COA received fewer than 100 pages free under agency rule so fee-waiver decision was moot	Held moot — no fees were due because responsive pages ≤100; agency need not decide fee waiver
Whether FTC properly withheld documents under Exemption 5 for Request #3 (screenshots and paralegal memoranda)	COA: withholding improper; screenshots are factual and memoranda not protected in full	FTC: memoranda are predecisional/deliberative and attorney work-product; screenshots were collected in anticipation of litigation but withheld under privileges	Split — memoranda properly withheld under deliberative process and attorney work-product; screenshots improperly withheld (purely factual)

Key Cases Cited

Celotex Corp. v. Catrett, 477 U.S. 317 (Sup. Ct. 1986) (summary-judgment standard)
Military Audit Project v. Casey, 656 F.2d 724 (D.C. Cir. 1981) (agency declarations may support FOIA summary judgment if detailed)
Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344 (D.C. Cir. 1983) (FOIA review and agency burden)
Nat'l Sec. Archive v. U.S. Dep't of Def., 880 F.2d 1381 (D.C. Cir. 1989) (definition and treatment of "representative of the news media")
Judicial Watch, Inc. v. U.S. Dep't of Justice, 365 F.3d 1108 (D.C. Cir. 2004) (public-interest fee-waiver standard)
NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (Sup. Ct. 1975) (Exemption 5 and discovery-privilege analogues)
Judicial Watch, Inc. v. U.S. Dep't of Justice, 432 F.3d 366 (D.C. Cir. 2005) (deliberative-process and segregability principles)