UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Center for Public Integrity, |

|

Plaintiff, |

|

v. | Civil Action No. 17-1162 (CRC)

| ECF

Federal Election Commission, |

|

Defendant. |

PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT

AND OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Plaintiff, the Center for Public Integrity, moves for summary judgment pursuant 

to Federal Rule of Civil Procedure 56 and opposes Defendant’s Motions for Summary Judgment. 

Plaintiff’s Memorandum of Points and Authorities, Statement of Material Facts as to Which 

There Is No Genuine Issue and a proposed Order accompany this motion.

Respectfully submitted,

/S/

Peter Newbatt Smith 

D.C. Bar #458244

Center for Public Integrity

910 17th Street, N.W., 7th Floor

Washington, DC 20006-2606

202-481-1239

psmith@publicintegrity.org

Attorney for Plaintiff

Case 1:17-cv-01162-CRC Document 13 Filed 09/28/17 Page 1 of 6
UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Center for Public Integrity, |

|

Plaintiff, |

|

v. | Civil Action No. 17-1162 (CRC)

| ECF

Federal Election Commission, |

|

Defendant. |

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND IN 

OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

This is an action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, as

amended, to secure the production of certain agency records. Plaintiff submitted two FOIA 

requests to Defendant that are at issue. Defendant has produced responsive records while also 

withholding and redacting some records. Plaintiff objects to the withholdings and redactions that 

Defendant has made under FOIA Exemption 5.

PLAINTIFF’S FOIA REQUESTS

By email on February 1, 2017, Plaintiff requested from the FEC: 

Any emails, memoranda or other correspondence or communication that discuss, 

mention, reference or otherwise pertain to the Twitter account “altFEC.” This 

includes direct mention of the account “@altFEC”, as well as other obvious 

references to the @altFEC account, which should include, but not be limited to: 

“alt FEC Twitter,” “alt FEC account” and “fake @FEC account.”

Declaration of Katie A. Higginbotham, Exhibit A. The FEC subsequently produced seven pages 

of responsive records and withheld 14 pages in full. After an administrative appeal, the agency 

affirmed its denial of the 14 pages.

Case 1:17-cv-01162-CRC Document 13 Filed 09/28/17 Page 2 of 6
By email on February 6, 2017, Plaintiff submitted a records request to the FEC. The 

items requested included: 

A copy of all emails from the domain “EOP.gov” to senior managers and 

commissioners encompassed within the required agency system for retaining 

emails of senior officials. Frequently, this records management policy/system is

described by the name Capstone.

Higginbotham Decl., Exhibit G. After the commencement of this lawsuit, the FEC produced 14 

pages of responsive records, with redactions.1

Each of these requests was submitted by Dave Levinthal, an employee of Plaintiff. Each 

request included a statement from Mr. Levinthal that “I am a reporter for the Center for Public 

Integrity ....” Each request contained, in the signature block, Mr. Levinthal’s job title (“Senior 

political reporter”), a URL for Plaintiff’s website (“Web: http://www.publicintegrity.org”), and a 

logo for Plaintiff (including the words “The Center for Public Integrity”). Higginbotham Decl., 

Exhibit A and Exhibit G. 

ARGUMENT

I. Standard of Review

Summary judgment is appropriate when there is no genuine issue as to the material facts, 

and the moving party demonstrates it is entitled to judgment as a matter of law. Fed. R. Civ. P. 

56; Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). A court reviews agency handling 

of a FOIA request de novo. 5 U.S.C. § 552(a)(4)(B).

In a case brought under FOIA, “the burden is on the agency to sustain its action.” 5 

U.S.C. § 552(a)(4)(B); see also Electronic Privacy Information Center v. Dep’t of Homeland 

Security, 384 F. Supp. 2d 100, 106 (D.D.C. 2005). While FOIA includes exemptions from 

 1 Plaintiff does not contest the redactions made pursuant to FOIA Exemption 6.

Case 1:17-cv-01162-CRC Document 13 Filed 09/28/17 Page 3 of 6
disclosure, “these limited exemptions do not obscure the basic policy that disclosure, not secrecy, 

is the dominant objective of the Act.” Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976).

II. Exemption 5

Exemption 5 of the Freedom of Information Act protects “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).

With respect to the EOP.gov emails, Defendant has not specified what privilege it is 

asserting to make redactions under Exemption 5. Defendant has not offered any explanation or 

argument for why the redacted information is exempt. Defendant has not met its burden of 

justifying its action in withholding this information.

With respect to the @altFEC FOIA request, Defendant has asserted the deliberative 

process privilege. Material withheld under this privilege must be “both predecisonal and 

deliberative.” Wolfe v. Dep't of Health & Human Services, 839 F.2d 768, 773 (D.C. Cir. 1988) 

(en banc) (citing EPA v. Mink, 410 U.S. 73 (1973)).

The precedents are clear that “[f]actual material that does not reveal the deliberative 

process is not protected by this exemption.” Paisley v. CIA, 712 F.2d 686, 698 (D.C. Cir. 1983), 

vacated in part on other grounds, 724 F.2d 201 (D.C. Cir. 1984).

III. Segregability

The statute requires that “[a]ny reasonably segregable portion of a record shall be 

provided to any person requesting such record after deletion of the portions which are exempt

Case 1:17-cv-01162-CRC Document 13 Filed 09/28/17 Page 4 of 6
....” 5 U.S.C. § 552(b). However, a “vague and conclusory” affidavit canot provide a basis for 

summary judgment. E.g., PHE, Inc. v. Dep't of Justice, 983 F.2d 248, 252-53 (D.C. Cir. 1993).

Defendant has provided only the conclusory statement that “[t]he Administrative Law 

Team concluded that the remaining 14 pages of documents ... should not be released pursuant to 

5 U.S.C. § 552(b)(5), because the information was covered by the deliberative process privilege 

and did not contain any reasonably segregable non-exempt information. The Commission’s 

Chief FOIA Officer concurred in these determinations.” Declaration of Katie A. Higginbotham, 

at ¶ 6. This is obviously insufficient to establish whether segregable non-exempt information 

actually exists.

It does not seem possible that no non-exempt information can be released from these 

emails. For example, the names of the senders and recipients are factual information, not 

deliberative. So are the dates of the emails. In addition, Defendant concedes that “[t]he withheld 

‘altFEC’ emails contain factual material ....” Defendant’s Memorandum, at 11, asserts that this 

material is “inextricably intertwined with exempt deliberative material,” but does not cite 

evidence in this case. Defendant’s arguments do not distinguish between factual information that 

is “inextricably intertwined” and that which is reasonably segregable, nor do they provide a 

factual basis for making a determination about the information withheld in this case.

Defendant has not met the burden required of it for summary judgment. Because 

Defendant’s declarations are too vague to allow a determination, Plaintiff is filing, along with 

this Motion, a Motion for in Camera Judicial Review.

Case 1:17-cv-01162-CRC Document 13 Filed 09/28/17 Page 5 of 6
CONCLUSION

For the foregoing reasons, the Court should grant Plaintiffs’ Motion for Summary 

Judgment and deny Defendant’s Motion for Summary Judgment.

Respectfully submitted,

/S/

Peter Newbatt Smith 

D.C. Bar #458244

Center for Public Integrity

910 17th Street, N.W., 7th Floor

Washington, DC 20006-2606

202-481-1239

psmith@publicintegrity.org

Attorney for Plaintiff

Case 1:17-cv-01162-CRC Document 13 Filed 09/28/17 Page 6 of 6