Case Detail

FOIA Project Annotation: Judge Emmet Sullivan has ruled that the FTC acted properly in denying Cause of Action a fee waiver and refusing to categorize the organization as a representative of the news media for fee purposes. In resolving fee issues spanning three sequential requests, Sullivan also found that the agency had properly withheld several memos under Exemption 5 (privileges), but that computer screenshots of the organization's website were not privileged. COA's first request asked for information about the drafting and implementation of the agency's "Guides Concerning the Use of Endorsements and Testimonials in Advertising." COA also asked for a fee waiver, which was denied. The organization again asked for a fee waiver and added a request to be considered a representative of the news media. The agency denied both requests, indicating that COA was put in the general fee category, and released 100 pages. Subsequently, the agency affirmed its decision of its denial on the fee issues in response to COA's administrative appeal. COA then asked for all FOIA requests since January 2009 where the FTC granted a fee waiver and records pertaining to how those decisions were made. The organization also asked for a fee waiver and to be considered a representative of the news media. The agency once again denied COA's fee requests, disclosing 100 pages, but withholding 12 pages under Exemption 5. In its third request, COA asked for records concerning the Guides, the agency's fee policies, and how the agency decided to deny COA's fee requests. The agency disclosed 75 pages and withheld 16 pages consisting of several memos written by a paralegal to an attorney, including two screenshots of COA's website, under Exemption 5. COA appealed the withholdings and reasserted its claim for a fee waiver. The agency upheld the withholdings and found the fee issue moot since no fees were assessed. COA then filed suit, primarily claiming that the FTC improperly denied their fee requests. Sullivan found that on its first request COA had shown that the disclosure of the records was in the public interest, but failed to show that it had the ability to disseminate the information widely. Sullivan noted that "throughout its voluminous correspondence with the FTC regarding its first FOIA request, [COA] identified only two methods of dissemination, which it discussed only in footnote: its website and articles published by news media that have relied upon COA's past work on other issues. Plaintiff did not provide any estimate of the number of people likely to view its website, nor did it demonstrate other ways in which it would disseminate the information itself, without relying on another source." Turning to its second request, Sullivan found again that COA failed the dissemination prong, but added that "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" and, thus, "plaintiff has not demonstrated that the public was the primary beneficiary of the requested information." Sullivan agreed with the agency that COA did not qualify as a representative of the new media. Noting that the leading cases on the news media category concluded that the National Security Archive and EPIC qualified because of their publishing capabilities, Sullivan explained that "Plaintiff performs its activities to aid in government accountability and is thus more like a middleman for dissemination to the media." While Sullivan agreed that the paralegal's memos were protected by both the deliberative process and attorney work-product privileges, he indicated that the computer screenshots were not. "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." He added that "when documents are purely factual, Exemption 5's attorney work-product privilege no longer applies."
Issues: Fee Category - Media or Educational, Public Interest Fee Waiver

Date Filed	Doc #	Docket Text
2012-05-25	1	COMPLAINT against FEDERAL TRADE COMMISSION ( Filing fee $ 350 receipt number 0090-2947740) filed by CAUSE OF ACTION. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Civil Cover Sheet, # 18 Summons AG, # 19 Summons US ATTORNEY, # 20 Summons FTC)(Rubinstein, Reed) (Entered: 05/25/2012)
2012-05-25	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by CAUSE OF ACTION (Rubinstein, Reed) (Entered: 05/25/2012)
2012-05-25		Case Assigned to Judge Emmet G. Sullivan. (sth, ) (Entered: 05/25/2012)
2012-05-25	3	ELECTRONIC SUMMONS (3)Issued as to FEDERAL TRADE COMMISSION, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons, # 2 Summons, # 3 Summons)(sth, ). (Entered: 05/25/2012)
2012-06-01	4	MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Dale L. Wilcox, :Firm- Cause of Action, :Address- 2100 M Street, NW, Suite 170-247, Washington, DC 20037. Phone No. - (202) 507-5882. Fax No. - (202) 372-9141 by CAUSE OF ACTION (Attachments: # 1 Declaration Declaration of Dale L. Wilcox, # 2 Text of Proposed Order)(Rubinstein, Reed) (Entered: 06/01/2012)
2012-06-04		MINUTE ORDER granting 4 Dale L. Wilcox's Motion for Leave to Appear Pro Hac Vice in the above captioned action. Signed by Judge Emmet G. Sullivan on June 4, 2012. (lcegs4) (Entered: 06/04/2012)
2012-06-12	5	NOTICE of Appearance by Mitchell P. Zeff on behalf of FEDERAL TRADE COMMISSION (Zeff, Mitchell) (Entered: 06/12/2012)
2012-06-21	6	Unopposed MOTION for Extension of Time to Answer or Otherwise Respond to Plaintiff's Complaint by FEDERAL TRADE COMMISSION (Attachments: # 1 Text of Proposed Order)(Zeff, Mitchell) (Entered: 06/21/2012)
2012-06-21		MINUTE ORDER granting 6 defendant's unopposed motion for extension of time to respond to the Complaint. Defendant shall respond to the Complaint by no later than August 8, 2012. Signed by Judge Emmet G. Sullivan on June 21, 2012. (lcegs4) (Entered: 06/21/2012)
2012-06-21		Set/Reset Deadlines: Answer due by 8/8/2012, (clv, ) (Entered: 06/21/2012)
2012-08-07	7	Consent MOTION for Extension of Time to Answer or Otherwise Respond to Plaintiff's Complaint by FEDERAL TRADE COMMISSION (Attachments: # 1 Text of Proposed Order)(Zeff, Mitchell) (Entered: 08/07/2012)
2012-08-07		MINUTE ORDER granting 7 defendant's consent motion for extension of time to respond to the complaint. Defendant shall respond to the complaint by no later than September 7, 2012. Signed by Judge Emmet G. Sullivan on August 7, 2012. (lcegs4) (Entered: 08/07/2012)
2012-08-08		Set/Reset Deadlines: Answer due by 9/7/2012, (clv, ) (Entered: 08/08/2012)
2012-08-10	8	NOTICE of Appearance by Karen Marie Groen on behalf of CAUSE OF ACTION (Groen, Karen) (Entered: 08/10/2012)
2012-08-10	9	NOTICE OF WITHDRAWAL OF APPEARANCE as to CAUSE OF ACTION. Attorney Dale L. Wilcox terminated. (Wilcox, Dale) (Entered: 08/10/2012)
2012-09-06	10	Consent MOTION for Extension of Time to Answer or Otherwise Respond to Plaintiff's Complaint by FEDERAL TRADE COMMISSION (Attachments: # 1 Text of Proposed Order)(Zeff, Mitchell) (Entered: 09/06/2012)
2012-09-07		MINUTE ORDER granting 10 consent motion for extension of time for defendant to respond to Complaint. Defendant shall file its response to the Complaint by no later than September 28, 2012. Signed by Judge Emmet G. Sullivan on September 7, 2012. (lcegs4) (Entered: 09/07/2012)
2012-09-07		Set/Reset Deadlines: Answer due by 9/28/2012, (clv, ) (Entered: 09/07/2012)
2012-09-28	11	MOTION for Summary Judgment by FEDERAL TRADE COMMISSION (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Text of Proposed Order)(Zeff, Mitchell) (Entered: 09/28/2012)
2012-10-10	12	Joint MOTION to Amend/Correct Briefing Schedule by CAUSE OF ACTION (Attachments: # 1 Text of Proposed Order)(Groen, Karen) (Entered: 10/10/2012)
2012-10-11		MINUTE ORDER granting 12 joint motion to amend the summary judgment briefing schedule. Plaintiff's opposition and cross motion for summary judgment, if any, shall be filed by no later than November 17, 2012, and defendant's reply and opposition to the cross motion, if any, shall be filed by no later than December 7, 2012, and plaintiff's reply in support of its cross motion, if any, shall be filed by no later than December 14, 2012. SO ORDERED. Signed by Judge Emmet G. Sullivan on October 11, 2012. (lcegs4) (Entered: 10/11/2012)
2012-10-11		Set/Reset Deadlines: Plaintiff's response and Cross Motions due by 11/17/2012; defendants reply and response due by 12/7/2012; plaintiff's reply due by 12/14/2012. (clv, ) (Entered: 10/11/2012)
2012-11-01	13	NOTICE of Change of Address by Karen Marie Groen (Groen, Karen) (Entered: 11/01/2012)
2012-11-15	14	Unopposed MOTION for Extension of Time to File Response/Reply to Motion for Summary Judgment by CAUSE OF ACTION (Attachments: # 1 Text of Proposed Order)(Groen, Karen) (Entered: 11/15/2012)
2012-11-19		MINUTE ORDER granting 14 unopposed motion for extension of time. Plaintiff's opposition shall be shall be filed no later than November 28, 2012. If plaintiff chooses to file a cross-motion, it shall be combined with the opposition and filed on the same date. Defendants reply and, if applicable, combined opposition shall be filed no later than December 19, 2012. Plaintiffs reply, if applicable, shall be filed no later than January 4, 2013. Signed by Judge Emmet G. Sullivan on November 19, 2012. (lcegs4) (Entered: 11/19/2012)
2012-11-19		Set/Reset Deadlines: Cross Motions and response due by 11/28/2012; Response to Cross Motions and reply due by 12/19/2012. Reply to Cross Motions due by 1/4/2013. (clv, ) (Entered: 11/19/2012)
2012-11-28	15	Memorandum in opposition to re 11 MOTION for Summary Judgment filed by CAUSE OF ACTION. (Attachments: # 1 Exhibit to Opposition to Def's MSJ, # 2 Memorandum in Support of Opposition to Def's MSJ, # 3 Statement of Genuine Issues and Material Facts, # 4 Declaration of M. Connelly, # 5 Declaration of D. Epstein, # 6 Text of Proposed Order)(Groen, Karen) (Entered: 11/28/2012)
2012-12-14	16	Consent MOTION for Extension of Time to File Response/Reply by FEDERAL TRADE COMMISSION (Attachments: # 1 Text of Proposed Order)(Weinstein, Laurie) (Entered: 12/14/2012)
2012-12-17		MINUTE ORDER granting 16 Defendant's Consent Motion for Extension of Time. Defendant shall file its reply in support of its motion for summary judgment by no later than January 18, 2013. Signed by Judge Emmet G. Sullivan on December 17, 2012. (lcegs4) (Entered: 12/17/2012)
2012-12-17		Set/Reset Deadlines: Reply to Motion for Summary Judgment due by 1/18/2013. (clv, ) (Entered: 12/17/2012)
2013-01-17	17	MOTION for Extension of Time to File Reply by FEDERAL TRADE COMMISSION (Attachments: # 1 Text of Proposed Order)(Zeff, Mitchell) (Entered: 01/17/2013)
2013-01-18		MINUTE ORDER treating as opposed and granting over opposition 17 defendant's motion for one week extension of time to file reply in support of motion for summary judgment. Defendant shall file its reply by no later than January 25, 2013. Signed by Judge Emmet G. Sullivan on January 18, 2013. (lcegs4) (Entered: 01/18/2013)
2013-01-22		Set/Reset Deadlines: Defendant's Reply to Motion for Summary Judgment due by 1/25/2013. (clv, ) (Entered: 01/22/2013)
2013-01-25	18	REPLY in Support of Defendant's Motion for Summary Judgment filed by FEDERAL TRADE COMMISSION. (Attachments: # 1 Exhibit)(Zeff, Mitchell) (Entered: 01/25/2013)
2013-08-19	19	ORDER granting in part and denying in part 11 Motion for Summary Judgment. Signed by Judge Emmet G. Sullivan on August 19, 2013. (lcegs4) (Entered: 08/19/2013)
2013-08-19	20	MEMORANDUM AND OPINION. Signed by Judge Emmet G. Sullivan on August 19, 2013. (lcegs4) (Entered: 08/19/2013)
2013-08-19		Set/Reset Deadlines: Status Report due by 9/10/2013 (mac) (Entered: 08/19/2013)
2013-09-06	21	NOTICE OF WITHDRAWAL OF APPEARANCE as to CAUSE OF ACTION. Attorney Karen Marie Groen terminated. (Groen, Karen) (Entered: 09/06/2013)
2013-09-06	22	NOTICE of Appearance by Patrick Joseph Massari on behalf of CAUSE OF ACTION (Massari, Patrick) (Entered: 09/06/2013)
2013-09-06	23	NOTICE of Appearance by Daniel Zachary Epstein on behalf of CAUSE OF ACTION (Epstein, Daniel) (Entered: 09/06/2013)
2013-09-10	24	STATUS REPORT Joint Status Report and Recommendation by CAUSE OF ACTION. (Epstein, Daniel) (Entered: 09/10/2013)
2013-09-10	25	STATUS REPORT [Proposed] Judgment by CAUSE OF ACTION. (Epstein, Daniel) (Entered: 09/10/2013)
2013-09-12	26	CONSENT JUDGMENT Ordered That The FTC Produce The Two Screenshots It Withheld To Cause Of Action On Or Before 9/20/13 Signed by Judge Emmet G. Sullivan on 09/11/13. (mac) (Entered: 09/12/2013)
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