Case Detail

FOIA Project Annotation: A federal court in New York has ruled that the FCC failed to show that IP addresses and User-Agent headers provided in public comments to the agency concerning its decision to repeal the net neutrality rules promulgated during the Obama administration can be withheld under Exemption 6 (invasion of privacy) or that processing the comments would be unduly burdensome. New York Times reporters Nicholas Confessore and Gabriel Dance requested the comments, many of which were attached only to IP addresses and contained no obvious personal data. After the agency failed to respond within the statutory time limit, the reporters filed suit. The agency justified its withholdings under Exemption 6 and its contention that processing the information would be too burdensome. The agency argued that even so some personal information could be gleaned by a sophisticated requester. Judge Lorna Schofield found the agency had not sufficiently made it case on that issue, noting that "if the record provided further insight into how likely it is that this risk would materialize, then the agency might have sustained its burden of showing that the disclosure of IP addresses and User-Agent headers would compromise a substantial privacy interest. But the general statements in the agency's declaration that IP addresses and other digital identifiers 'often can reliably be linked to individual persons' to create 'detailed profiles' fall short." In contrast, Schofield found a public interest in disclosure. She pointed out that "disclosing the requested data in this case informs the public understanding of the operations and activities of government in two ways â€" at the micro level with regard to the integrity of the FCC's repeal of the particular net neutrality rules at issue, and at the macro level with regard to the vulnerability of agency rulemaking in general." The agency claimed that it had considered all public comments in its final rule. But Schofield observed that "this misunderstands the public interest at stake. The concern in not whether the FCC was appropriately responsive to certain comments. Rather, the concern is whether the notice-and-comment process functioned as a check on agency rulemaking authority as prescribed by federal administrative law." Schofield also rejected the agency's contention that writing a computer script to search for the records the reporters had requested would be unduly burdensome. However, Schofield pointed out that "this 'matching and sorting' process is closer to an automated search for responsive records than a scavenger hunt for disparate information." She added that "the FCC has made no showing that creating and running such a script would require more than 'reasonable efforts to search' or 'would significantly interfere with the operation of the agency's automated system.'"
Issues: Exemption 6 - Invasion of privacy, Choice of format - Burdensome

Date Filed	Doc #	Docket Text
2018-09-20	1	COMPLAINT against Federal Communications Commission. (Filing Fee $ 400.00, Receipt Number 0208-15594454)Document filed by The New York Times Company, Gabriel Dance, Nicholas Confessore.(McCraw, David) (Entered: 09/20/2018)
2018-09-20	2	CIVIL COVER SHEET filed. (McCraw, David) (Entered: 09/20/2018)
2018-09-20	3	RULE 7.1 CORPORATE DISCLOSURE STATEMENT. Identifying Other Affiliate Grupo Financiero Inbursa for The New York Times Company. Document filed by The New York Times Company.(McCraw, David) (Entered: 09/20/2018)
2018-09-20	4	REQUEST FOR ISSUANCE OF SUMMONS as to Federal Communications Commission, re: 1 Complaint. Document filed by Nicholas Confessore, Gabriel Dance, The New York Times Company. (McCraw, David) (Entered: 09/20/2018)
2018-09-21		CASE OPENING INITIAL ASSIGNMENT NOTICE: The above-entitled action is assigned to Judge John G. Koeltl. Please download and review the Individual Practices of the assigned District Judge, located at http://nysd.uscourts.gov/judges/District . Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at http://nysd.uscourts.gov/ecf_filing.php . (jgo) (Entered: 09/21/2018)
2018-09-21		Magistrate Judge Sarah Netburn is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: http://nysd.uscourts.gov/forms.php . (jgo) (Entered: 09/21/2018)
2018-09-21		Case Designated ECF. (jgo) (Entered: 09/21/2018)
2018-09-24	5	ELECTRONIC SUMMONS ISSUED as to Federal Communications Commission. (jgo) (Entered: 09/24/2018)
2018-09-24		NOTICE OF CASE REASSIGNMENT to Judge Lorna G. Schofield. Judge John G. Koeltl is no longer assigned to the case. (ma) (Entered: 09/24/2018)
2018-10-02	6	ORDER: Initial Conference set for 11/15/2018 at 10:30 AM in Courtroom 1106, Thurgood Marshal Courthouse, 40 Foley Square, New York, NY 10007 before Judge Lorna G. Schofield. (Signed by Judge Lorna G. Schofield on 10/2/2018) (jca) (Entered: 10/02/2018)
2018-10-05	7	NOTICE OF APPEARANCE by Tomoko Onozawa on behalf of Federal Communications Commission. (Onozawa, Tomoko) (Entered: 10/05/2018)
2018-10-11	8	LETTER MOTION for Extension of Time to File Answer re: 1 Complaint addressed to Judge Lorna G. Schofield from AUSA Tomoko Onozawa dated 10/11/2018. Document filed by Federal Communications Commission.(Onozawa, Tomoko) (Entered: 10/11/2018)
2018-10-12	9	ORDER granting in part 8 Letter Motion for Extension of Time to Answer. Application GRANTED. Defendant shall file its Answer by November 2, 2018. (Signed by Judge Lorna G. Schofield on 10/12/2018) (jca) Modified on 10/12/2018 (jca). (Entered: 10/12/2018)
2018-10-12		Set/Reset Deadlines: Federal Communications Commission answer due 11/2/2018. (jca) (Entered: 10/12/2018)
2018-10-16	10	MEMO ENDORSEMENT on re: 8 LETTER MOTION for Extension of Time to File Answer re: 1 Complaint addressed to Judge Lorna G. Schofield from AUSA Tomoko Onozawa dated 10/11/2018. filed by Federal Communications Commission. ENDORSEMENT: Application GRANTED. Defendant shall file its Answer by November 9, 2018. Federal Communications Commission answer due 11/9/2018. (Signed by Judge Lorna G. Schofield on 10/16/2018) (cf) (Entered: 10/16/2018)
2018-11-08	11	LETTER addressed to Judge Lorna G. Schofield from David McCraw dated November 8, 2018 re: Initial Pretrial Conference. Document filed by Nicholas Confessore, Gabriel Dance, The New York Times Company.(McCraw, David) (Entered: 11/08/2018)
2018-11-09	12	MEMO ENDORSEMENT on re: 11 Letter filed by The New York Times Company, Gabriel Dance, Nicholas Confessore. ENDORSEMENT: Application GRANTED. The initial pretrial conference scheduled for November 15, 2018, is CANCELLED. The FCC shall file its motion for summary judgment by December 17, 2018. The Times shall file its cross-motion for summary judgment and opposition to the FCCs motion by January 17, 2019. The FCC shall file its opposition to The Times's cross-motion and reply in support of its motion by February 15, 2019. The Times shall file its reply in support of its cross-motion by February 22, 2019. Each party is limited to a total of 45 pages of briefing, to be allocated between the two memoranda of law. (Cross Motions due by 1/17/2019, Motions due by 12/17/2018, Responses due by 2/15/2019, Replies due by 2/22/2019.) (Signed by Judge Lorna G. Schofield on 11/9/2018) (jca) Modified on 11/9/2018 (jca). (Entered: 11/09/2018)
2018-11-09	13	ANSWER to 1 Complaint. Document filed by Federal Communications Commission.(Onozawa, Tomoko) (Entered: 11/09/2018)
2018-12-13	14	LETTER MOTION for Extension of Time to File Cross-Motions for Summary Judgment addressed to Judge Lorna G. Schofield from AUSA Tomoko Onozawa dated 12/13/2018. Document filed by Federal Communications Commission.(Onozawa, Tomoko) (Entered: 12/13/2018)
2018-12-14	15	ORDER: granting 14 Letter Motion for Extension of Time to File. Application GRANTED. The deadline for the Government to file its summary judgment motion is extended from December 17, 2018, to January 4, 2019. Plaintiffs shall file their opposition and cross-motion for summary judgment by February 5, 2019. The Government shall file its opposition to Plaintiffs' cross-motion for summary judgment and its reply in further support of its summary judgment motion by March 5, 2019. Plaintiffs shall file their reply in further support of their cross-motion for summary judgment by March 12, 2019. (Signed by Judge Lorna G. Schofield on 12/14/2018) (ama) (Entered: 12/14/2018)
2018-12-14		Set/Reset Deadlines: Cross Motions due by 2/5/2019. Motions due by 1/4/2019. Responses due by 3/5/2019 Replies due by 3/12/2019. (ama) Modified on 12/14/2018 (ama). (Entered: 12/14/2018)
2018-12-14		Set/Reset Deadlines: Responses due by 3/5/2019 (ama) (Entered: 12/14/2018)
2018-12-27	16	STANDING ORDER M10-468: The United States Attorney's Office shall notify the Court immediately upon the restoration of Department of Justice funding. (As further set forth in this Order.) (Signed by Judge Colleen McMahon on 12/27/2018) (mro) (Entered: 01/02/2019)
2018-12-27		Case Stayed (mro) (Entered: 01/14/2019)
2019-01-28	17	ORDER: WHEREAS, this case was stayed on December 27, 2019 (Dkt. 16). It is hereby ORDERED that the stay is lifted. It is further ORDERED that by March 4, 2019, the Government shall file its motion for summary judgment. By April 1, 2019, Plaintiff shall file its opposition and cross-motion for summary judgment. By April 22, 2019, the Government shall file its reply and opposition to Plaintiff's cross-motion for summary judgment. By May 2, 2019, Plaintiff shall file its reply in support of its cross-motion for summary judgment. (Cross Motions due by 4/1/2019., Motions due by 3/4/2019., Responses due by 4/22/2019, Replies due by 5/2/2019.) (Signed by Judge Lorna G. Schofield on 1/28/2019) (cf) (Entered: 01/28/2019)
2019-02-28	18	LETTER MOTION for Extension of Time to File FCC Motion for Summary Judgment addressed to Judge Lorna G. Schofield from AUSA Tomoko Onozawa dated 2/28/2019. Document filed by Federal Communications Commission.(Onozawa, Tomoko) (Entered: 02/28/2019)
2019-03-01	19	ORDER granting 18 Letter Motion for Extension of Time to File: Application GRANTED. The parties' proposed briefing schedule is adopted. No further extensions will be granted absent extenuating circumstances. (Signed by Judge Lorna G. Schofield on 3/1/2019) (jwh) (Entered: 03/01/2019)
2019-03-01		Set/Reset Deadlines: Motions due by 3/13/2019. Cross Motions due by 4/10/2019. Responses due by 5/1/2019. Replies due by 5/21/2019. (jwh) (Entered: 03/01/2019)
2019-03-12	20	LETTER MOTION for Extension of Time to File Motion for Summary Judgment addressed to Judge Lorna G. Schofield from AUSA Tomoko Onozawa dated 3/12/2019. Document filed by Federal Communications Commission.(Onozawa, Tomoko) (Entered: 03/12/2019)
2019-03-13	21	ORDER granting 20 Letter Motion for Extension of Time to File. Application GRANTED. The Government shall file its Motion for Summary Judgment by March 14, 2019. Plaintiffs shall file their Opposition and Cross-motion for Summary Judgment by April 11, 2019. The Government shall file its Opposition and Reply by May 2, 2019. Plaintiffs shall file their Reply by May 22, 2019.. (Signed by Judge Lorna G. Schofield on 3/13/2019) (ne) (Entered: 03/13/2019)
2019-03-13		Set/Reset Deadlines: Motions due by 3/14/2019. Cross Motions due by 4/11/2019. Responses due by 5/2/2019. Replies due by 5/22/2019. (ne) Modified on 7/26/2019 (ne). (Entered: 03/13/2019)
2019-03-14	22	MOTION for Summary Judgment . Document filed by Federal Communications Commission.(Onozawa, Tomoko) (Entered: 03/14/2019)
2019-03-14	23	MEMORANDUM OF LAW in Support re: 22 MOTION for Summary Judgment . . Document filed by Federal Communications Commission. (Onozawa, Tomoko) (Entered: 03/14/2019)
2019-03-14	24	DECLARATION of Erik Scheibert in Support re: 22 MOTION for Summary Judgment .. Document filed by Federal Communications Commission. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Onozawa, Tomoko) (Entered: 03/14/2019)
2019-04-10	25	NOTICE OF APPEARANCE by John Clopper on behalf of Nicholas Confessore, Gabriel Dance, The New York Times Company. (Clopper, John) (Entered: 04/10/2019)
2019-04-10	26	NOTICE OF APPEARANCE by Al-Amyn Shiraz Sumar on behalf of Nicholas Confessore, Gabriel Dance, The New York Times Company. (Sumar, Al-Amyn) (Entered: 04/10/2019)
2019-04-10	27	CROSS MOTION for Summary Judgment . Document filed by Nicholas Confessore, Gabriel Dance, The New York Times Company.(McCraw, David) (Entered: 04/10/2019)
2019-04-10	28	MEMORANDUM OF LAW in Support re: 27 CROSS MOTION for Summary Judgment . . Document filed by Nicholas Confessore, Gabriel Dance, The New York Times Company. (McCraw, David) (Entered: 04/10/2019)
2019-05-02	29	REPLY MEMORANDUM OF LAW in Support re: 22 MOTION for Summary Judgment . and in Opposition to 27 Plaintiffs' Cross-Motion for Summary Judgment . Document filed by Federal Communications Commission. (Onozawa, Tomoko) (Entered: 05/02/2019)
2019-05-02	30	DECLARATION of Erik Scheibert (Second Declaration) in Support re: 22 MOTION for Summary Judgment .. Document filed by Federal Communications Commission. (Onozawa, Tomoko) (Entered: 05/02/2019)
2019-05-22	31	REPLY MEMORANDUM OF LAW in Support re: 27 CROSS MOTION for Summary Judgment . . Document filed by Nicholas Confessore, Gabriel Dance, The New York Times Company. (Clopper, John) (Entered: 05/22/2019)
2019-11-08	32	NOTICE OF APPEARANCE by Alexandra Perloff-Giles on behalf of Nicholas Confessore, Gabriel Dance, The New York Times Company. (Perloff-Giles, Alexandra) (Entered: 11/08/2019)
2020-04-30	33	OPINION AND ORDER re: 27 CROSS MOTION for Summary Judgment . filed by The New York Times Company, Gabriel Dance, Nicholas Confessore, 22 MOTION for Summary Judgment . filed by Federal Communications Commission. For the foregoing reasons, Plaintiffs' motion for summary judgment is GRANTED, and Defendant's motion for summary judgment is DENIED. Plaintiffs' motion for reasonable attorneys' fees is DENIED without prejudice to renew. The Clerk of Court is respectfully directed to close the motions at Docket Nos. 22 and 27. SO ORDERED. (Signed by Judge Lorna G. Schofield on 4/30/2020) (ks) Transmission to Orders and Judgments Clerk for processing. (Entered: 04/30/2020)
2020-04-30	34	CLERK'S JUDGMENT re: 33 Memorandum & Opinion. in favor of The New York Times Company, Gabriel Dance, Nicholas Confessore against Federal Communications Commission. It is hereby ORDERED, ADJUDGED AND DECREED: That for the reasons stated in the Court's Opinion and Order dated April 30, 2020, Plaintiffs' motion for summary judgment is GRANTED, and Defendant's motion for summary judgment is DENIED. Plaintiffs motion for reasonable attorneys' fees is DENIED without prejudice to renew. (Signed by Clerk of Court Ruby Krajick on 04/30/2020) (Attachments: # 1 Notice of Right to Appeal) (dt) (Entered: 05/01/2020)
2020-05-06	35	CONSENT LETTER MOTION for Extension of Time for fee application addressed to Judge Lorna G. Schofield from David E. McCraw dated 05/06/2020. Document filed by Nicholas Confessore, Gabriel Dance, The New York Times Company..(McCraw, David) (Entered: 05/06/2020)
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