Cause of Action v. Federal Trade Commission
419 U.S. App. D.C. 74
| D.C. Cir. | 2015Background
- Cause of Action (a nonprofit formed in 2011) submitted three FOIA requests to the FTC about the FTC’s endorsement guides and the agency’s fee-waiver practices; it sought fee waivers under FOIA’s public-interest and news-media provisions.
- FTC treated Action as a "general public" requester, released the first 100 pages free under its rule, withheld exempt material, and denied fee-waiver requests for the first two requests for lack of adequate evidence of dissemination ability and news‑media status.
- Action supplemented its submissions over time (seven letters total), including detail about its newsletter, website, social media, planned reports, and prior press placements; those supplemental materials were submitted with the third FOIA request.
- The FTC declined to process parts of the third request as duplicative and released fewer-than-100 non-exempt pages without charge, then declined to decide fee-waiver eligibility for remaining materials, calling the question moot; Action appealed administratively and sued in district court.
- The district court granted summary judgment for the FTC on fee waivers for the first two requests and declared the fee-waiver issue moot for the third; this court reviews de novo, holds the third-request fee-waiver issue is not moot, clarifies legal standards, and remands for reconsideration on the full administrative record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness of fee-waiver claims for third request | FTC did not moot claims because it had not produced all non-exempt responsive pages without charge; supplemental evidence was part of the record. | FTC argued release of some pages and 100-page rule rendered the fee-waiver issue moot. | Not moot: FTC failed to produce all unpaid pages; district court must review fee-waiver denials on the complete agency record. |
| Public-interest fee waiver (5 U.S.C. §552(a)(4)(A)(iii)) | Action: disclosure would significantly contribute to public understanding and it is noncommercial; supplemental materials show dissemination plans. | FTC/district court: Action failed to show ability to disseminate to a broad public; some submissions were conclusory. | Court clarifies statutory test: no requirement to reach the "public at large"; must show likely significant contribution to public understanding and reasonable specificity about dissemination to a reasonably broad audience of interest; remand to apply correct standard using full record. |
| News-media fee waiver (5 U.S.C. §552(a)(4)(A)(ii)) | Action: qualifies as a "representative of the news media" (gathers info, uses editorial skill, distributes via newsletter, website, social media, press contacts). | FTC/district court: Action lacked record of distribution, editorial production, and organization "organized and operated" to publish news. | Court adopts statutory (and National Security Archive) five-part test (gathers info; for segment of public; uses editorial skill to create distinct work; distributes that work; to an audience) and rejects an "organized and operated" requirement; remand to evaluate Action’s evidence (including supplemental materials). |
| Commercial-use bar to news-media waiver | Action: nonprofit educational mission and noncommercial use. | FTC: suggested nexus to litigation or self-interest could be commercial. | Court: information serving a requester’s litigation or advocacy interest is not per se "commercial"; commercial-use analysis remains fact-specific and separate from the news-media inquiry. |
Key Cases Cited
- Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309 (D.C. Cir. 2003) (fee-waiver applications must be supported with reasonable specificity; court reviews agency denial de novo)
- National Sec. Archive v. U.S. Dep't of Def., 880 F.2d 1381 (D.C. Cir. 1989) (formulates the three-part/expanded test for news-media status and describes the ‘‘gather-use-distribute’’ framework)
- Carney v. U.S. Dep't of Justice, 19 F.3d 807 (2d Cir. 1994) (dissemination need only reach a reasonably broad audience of interested persons; not required to reach the public at large)
- Larson v. CIA, 843 F.2d 1481 (D.C. Cir. 1988) (administrative record must identify dissemination plans with reasonable specificity)
- Nat'l Treasury Emps. Union v. Griffin, 811 F.2d 644 (D.C. Cir. 1987) (pre-1986 public-benefit test; discussed as superseded by 1986 amendments)
- Tax Analysts v. Dep't of Justice, 965 F.2d 1092 (D.C. Cir. 1992) (small readership does not disqualify an entity from news-media status)
- Spannaus v. Dep't of Justice, 824 F.2d 52 (D.C. Cir. 1987) (refiling FOIA requests permitted; administrative process can be restarted)