IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

____________________________________

MARK W. MILLER, 

Plaintiff,

v.

FEDERAL ELECTION 

COMMISSION, 

 Defendant. 

____________________________________

)

) Civ. No. 1:12-cv-00242-SJD

)

) Chief Judge Susan J. Dlott

)

) 

) REPLY MEMORANDUM 

) IN SUPPORT OF MOTION

) FOR SUMMARY JUDGMENT

)

)

DEFENDANT FEDERAL ELECTION COMMISSION’S REPLY MEMORANDUM 

IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT

Anthony Herman

General Counsel

Lisa J. Stevenson

Deputy General Counsel – Law

David Kolker

Associate General Counsel

Harry J. Summers 

Assistant General Counsel 

Benjamin A. Streeter III

Attorney

December 21, 2012 FOR THE DEFENDANT

FEDERAL ELECTION COMMISSION

999 E Street, N.W.

Washington, D.C. 20463

(202) 694-1650

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i

TABLE OF CONTENTS

Page

I. INTRODUCTION ........................................................................................1

II. THE FEC IS ENTITLED TO JUDGMENT BECAUSE THE ONLY 

SUBSTANTIVE CLAIM IN MILLER’S COMPLAINT IS MOOT 

AND THE AGENCY HAS RESPONDED FULLY TO HIS FOIA

REQUEST.....................................................................................................2

A. Miller’s Complaint Is Moot and Should Be Dismissed ......................2 

B. Plaintiff’s New Claims Regarding the FEC’s Withholding 

 Decisions Are Not Properly Before This Court, and in Any

 Event, the Commission Properly Withheld Certain 

 Information Under Applicable FOIA Exemptions .............................4

 1. The operative complaint in this case contains no claim 

regarding the Commission’s document withholding 

decisions......................................................................................4

2. Plaintiff did not exhaust his administrative remedies 

before challenging the Commission’s document 

withholding decisions .................................................................4

3. Even if the FOIA withholding decisions were properly 

before this Court, the Commission has amply justified 

those decisions............................................................................6

a. The Commission properly invoked FOIA 

Exemption 3..........................................................................7

b. The Commission properly invoked FOIA 

Exemption 5........................................................................11

c. The Commission properly invoked FOIA 

Exemption 6........................................................................13

C. Because Plaintiff Has Not “Substantially Prevailed” on His 

FOIA Claim, He Is Not Entitled to Attorneys’ Fees........................14

III. CONCLUSION...........................................................................................16

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I. INTRODUCTION

This case is moot. The only substantive claim properly before this Court is whether the 

Federal Election Commission (“Commission” or “FEC”) responded to plaintiff Mark Miller’s 

Freedom of Information Act (“FOIA”) request, and it is undisputed that the Commission did so 

in April 2012. Indeed, in plaintiff’s Opposition to the FEC’s Motion for Summary Judgment 

(“Opp.” (Doc. No. 11-1)), plaintiff concedes that the FEC responded to his FOIA request and

that the Commission conducted an adequate and reasonable search for responsive records (Opp. 

at 9). Because plaintiff has proffered no evidence to prevent a finding of summary judgment for 

the Commission (see Plaintiff’s Response to FEC’s Proposed Undisputed Facts (Doc. No. 11-3)), 

there is no genuine dispute of material fact, and the Commission is entitled to summary judgment 

or dismissal for lack of subject matter jurisdiction. 

Miller claims that summary judgment is inappropriate because he seeks attorneys’ fees,

and he faults the Commission for not addressing that issue in its opening brief (Opp. at 6). But 

plaintiff cannot prevail on the merits, and he has not yet filed a motion for fees under Fed. R. 

Civ. Proc. 54(d)(2), so there was no reason for the Commission to address that issue in its 

summary judgment motion. In any event, Miller is not entitled to fees because he has not 

“substantially prevailed”: He has not obtained any favorable judgment and he cannot show that 

his suit has caused any voluntary change in the Commission’s position regarding his FOIA 

request. To the contrary, the Commission has presented extensive and detailed evidence —

which Miller has specifically declined to challenge — showing that the agency worked steadily 

to respond to the FOIA request from its initial receipt. The agency’s staff searched for 

responsive materials, evaluated the fruits of that search, redacted privileged materials, and 

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provided documents only nine days after learning that this suit had been filed — a series of steps 

that were mostly completed before this lawsuit. 

Plaintiff now argues for the first time in his opposition brief that the Commission’s 

decisions to withhold certain material in 64 of the 77 responsive documents under FOIA 

Exemptions 3, 5, and 6 were incorrect. (Opp. at 9-24.) But plaintiff has failed to amend his 

complaint to reflect these claims and failed to exhaust his administrative remedies to give the 

agency an opportunity to reevaluate its decisions, so this Court has no jurisdiction to consider the

claims. Even if the Commission’s withholding decisions were properly before the Court, the 

agency has sustained its burden of showing that it properly withheld this material by providing a 

detailed Vaughn index and supporting declarations. 

Because the Commission has responded fully to plaintiff’s FOIA request and there is no 

basis to award attorneys’ fees, the Court should grant summary judgment and dismiss this case.

II. THE FEC IS ENTITLED TO JUDGMENT BECAUSE THE ONLY 

SUBSTANTIVE CLAIM IN MILLER’S COMPLAINT IS MOOT AND THE 

AGENCY HAS RESPONDED FULLY TO HIS FOIA REQUEST 

A. Miller’s Complaint Is Moot and Should Be Dismissed 

As the Commission explained in its Memorandum in Support of Motion for Summary 

Judgment (“FEC Mem.”) (Doc. No. 8-1, at 7-8), “[o]nce the [agency] turned over everything in 

its possession related to plaintiff’s FOIA request, the merits of plaintiff’s claim for relief, in the 

form of production of information, became moot.” GMRI, Inc. v. EEOC, 149 F.3d 449, 451 (6th

Cir. 1998). See Landers v. Dep’t of the Air Force, No. c-3-00-567 (S.D. Ohio Feb. 25, 2002) 

(Rice, C.J.) (slip opinion). Sixth Circuit law requires dismissal of FOIA suits once requestors

have received the responsive, non-exempt documents, even if the response is late. “Mootness 

results when events occur during the pendency of a litigation which render the court unable to 

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grant the requested relief.” Constangy, Brooks & Smith v. NLRB, 851 F.2d 839, 841 (6th Cir. 

1988) (internal citation and quotation marks omitted). Miller’s complaint seeks only a response 

to his FOIA request — it has never been amended to challenge the adequacy of the actual April 

2012 response — so the Commission’s production of responsive documents is an “event” that 

renders this case moot. 

Miller asserts that “when a plaintiff seeks information under FOIA and associated 

attorney fees, courts retain equitable jurisdiction to adjudicate the fee claim after the defendant 

produces the requested information and thus renders the FOIA claim moot.” (Opp. at 6 (citation 

omitted).) And it is true that “[t]he issue of fees and costs is ancillary to the underlying action 

and survive[s] independently under the court’s equitable jurisdiction.” GMRI, 149 F.3d at 451 

(internal quotation marks omitted; emphasis added). But Miller puts the cart before the horse

when he argues that the Commission’s pending motion is incomplete because it does not 

affirmatively address his pro forma request for attorneys’ fees in the last paragraph of the 

complaint. (See Complaint ¶ 44 (Doc. No. 1).) The Commission has moved for summary 

judgment on the merits of Miller’s claim that the agency did not provide a response to his FOIA 

request. To prevail on that motion, the Commission is not required to demonstrate that Miller is 

not entitled to fees, so there is no merit to Miller’s novel argument that the “FEC’s motion is best 

characterized as a motion for partial summary judgment” (Opp. at 8). Once the Court rules on 

the pending motion, plaintiff may choose to file a separate motion for attorneys’ fees under Fed. 

R. Civ. Proc. 54(d)(2) (if he prevails), but any such motion now would be premature.1

 

 1 Moreover, as we explain below, because the Commission’s FOIA response was adequate 

and Miller cannot demonstrate that this lawsuit caused a change in the agency’s handling of his 

request, he is not entitled to attorneys’ fees.

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Thus, at this juncture, the Court lacks jurisdiction over the merits of the case. “It is well 

established that the federal courts have no authority to rule where the case or controversy has 

been rendered moot.” Cornucopia Inst. v. USDA, 560 F.3d 673, 676 (7th Cir. 2009) (dismissing 

FOIA claim as moot after agency provided responsive records while suit was pending); see also 

Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992). 

B. Plaintiff’s New Claims Regarding the FEC’s Withholding Decisions Are Not 

Properly Before This Court, and in Any Event, the Commission Properly 

Withheld Certain Information Under Applicable FOIA Exemptions 

1. The operative complaint in this case contains no claim regarding the 

Commission’s document withholding decisions 

Plaintiff devotes the bulk of his opposition brief to new claims that the FEC improperly 

applied relevant FOIA exemptions to 64 responsive documents and failed to sustain its burden of 

justifying its decisions in its Vaughn index. Miller raises these objections for the first time in his 

Opposition; he has never sought to amend his complaint to challenge the withholding decisions 

about which he now complains. As a result, such claims are not properly before this Court, and 

plaintiff’s arguments should be rejected for this reason alone. See Guzman v. U.S. Dept. of 

Homeland Sec., 679 F.3d 425, 429-30 (6th Cir. 2012) (upholding a district court’s refusal to 

consider a claim first raised in plaintiff's opposition to a motion to dismiss, noting that plaintiff 

did not include the claim in his complaint and had never moved for leave to amend the complaint 

under Fed. R. Civ. Proc 15(a)).

2. Plaintiff did not exhaust his administrative remedies before 

challenging the Commission’s document withholding decisions

Miller’s new claims regarding the Commission’s withholding decisions are also not 

properly before the Court because Miller failed to exhaust his administrative remedies prior to 

challenging the agency’s FOIA withholding decisions. “It goes without saying that exhaustion 

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of [administrative] remedies is required in FOIA cases.” Dettmann v. U.S. Dep’t of Justice, 802 

F.2d 1472, 1476 (D.C. Cir. 1986). 

Exhaustion [in FOIA suits] is generally required as a matter of preventing 

premature interference with agency processes, so that the agency may 

function efficiently and so that it may have an opportunity to correct its own 

errors, to afford the parties and the courts the benefit of its experience and 

expertise, and to compile a record which is adequate for judicial review.

Citizens for Responsibility and Ethics in Washington v. FEC, 839 F. Supp. 2d 17, 28 (D.D.C.

2011), appeal docketed, No. 12-5004 (D.C. Cir. Jan. 11, 2012). Further, “[p]roviding the FEC 

the opportunity to review [Miller’s] objections through the administrative appeals process would 

among other things allow the agency time to correct any errors alleged by [Miller], and create a 

full record for the Court to review should [Miller] seek additional review of the FEC’s decision. 

Requiring exhaustion in this case will only further the ends of justice.” Id.

Although Miller filed an administrative appeal of the agency’s failure to provide 

responsive materials (FEC’s FRCP 56 (c) Statement of Undisputed Material Facts (“FEC Facts”) 

¶¶ 26, 38 (Doc. No. 8-2)), he has never appealed the specific withholding decisions. Upon 

receipt of the FEC’s FOIA response, Miller could easily have followed the Commission’s FOIA 

appeal procedures under 11 C.F.R. § 4.8 and also requested a stay of proceedings in this suit. 

Because he did not, the Commission has been deprived of “an opportunity to exercise its 

discretion and expertise on the matter and to make a factual record to support its decision.” 

Hidalgo v. FBI, 344 F.3d 1256, 1258 (D.C. Cir. 2003) (quoting Oglesby v. U.S. Dep’t of the 

Army, 920 F.2d 57 (D.C. Cir. 1990)). See id. at 1259-60 (holding that FOIA requester failed to 

exhaust administrative remedies, even though he had brought an administrative appeal, because

the appeal was filed before the FBI had completed action on the FOIA request).

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3. Even if the FOIA withholding decisions were properly before this

Court, the Commission has amply justified those decisions

Even if Miller had exhausted his administrative remedies and properly included a 

challenge to the Commission’s withholding decisions in his Complaint – which he has not —

the Commission has shown that its decisions were proper. (FEC Mem. at 14-19.) 

Miller’s challenge to the FEC’s invocation of FOIA exemptions centers on alleged

deficiencies in the five staff affidavits and the detailed Vaughn index that the FEC submitted in 

support of its motion for summary judgment. Plaintiff asserts the “Court must evaluate and 

determine the propriety of the claimed exemptions by . . . consider[ing] not only the law and the 

narrow scope of the exemptions themselves, but also the sufficiency of the FEC’s Vaughn index 

and the ability and effort by the FEC to segregate exempt from non-exempt information.” (Opp. 

at 11.)2

 The Commission’s Vaughn index and the affidavits are entitled to a presumption of 

good faith, and Miller does not suggest to the contrary. (FEC Mem. at 11-12.) Moreover, 

plaintiff’s repeated insistence (Opp. at 11-14) on greater detail in the declarations and the 

Vaughn index, which carefully describes each document withheld as well as the basis for 

withholding, would undermine the very FOIA exemptions that the agency has invoked. (See

FEC’s Vaughn Index (Doc. No. 8-8).) Nor is there any deficiency in the supporting affidavits. 

FEC attorney William Buckley clearly explained in his declaration why the FOIA Exemptions at 

issue applied to the information the Commission redacted. (Declaration of William Buckley 

(“Buckley Decl.”) ¶¶ 33-34 (Doc. No. 8-3).) The Commission has fully and adequately 

 2 Because Miller does not know the contents of the withheld material, his proposal for an 

“oral argument wherein the sufficiency vel non of the descriptions of the [sic] each and every 

withheld records [sic] could be addressed” would not aid the Court. (Opp. at 14 n.8.) Plaintiff 

can offer little more than speculation about the precise nature of the redacted material.

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sustained its burden, 5 U.S.C. § 552(a)(4)(B), of justifying its actions in responding to plaintiff’s 

FOIA request. 

Of course, the main purpose of these materials is to assist the Court, which has the task of 

ensuring that the Commission’s decisions to withhold material were statutorily authorized. In 

doing so, the Court “may examine the contents of such agency records in camera to determine 

whether such records or any part thereof shall be withheld,” 5 U.S.C. § 552(a)(4)(B), and as a 

precaution, the Commission has already voluntarily submitted the withheld material to the Court. 

Reviewing the documents in camera may well provide the most efficient way to assess the 

FEC’s invocation of FOIA exemptions, as well as minimize the risk of breaching important 

confidentiality interests, especially 2 U.S.C. § 437g(a)(12), when discussing the rationale behind 

the treatment of a particular document in the supporting affidavits. Although in camera

inspections should be used “sparingly,” Rugiero v. U.S. Dep’t of Justice, 257 F.3d 534, 544 (6th 

Cir. 2001), such a review of the 64 documents at issue in this matter would be limited in scope. 

And even if this Court should deem the Commission’s affidavits or Vaughn index deficient in 

some way and deem it premature to conduct an in camera inspection, the proper recourse would 

not be denial of the Commission’s motion for summary judgment, but an order requiring the 

Commission to provide additional explanation. See Campaign for Responsible Transplantation 

v. FDA, 511 F.3d 187, 196 (D.C. Cir. 2007). 

a. The Commission properly invoked FOIA Exemption 3

The Commission demonstrated in its opening brief (FEC Mem. at 15-17) that 2 U.S.C. 

§ 437g(a)(12) constitutes precisely the sort of withholding statute that supports the invocation of

FOIA Exemption 3, namely one that either (a) “requires that the matters be withheld from the 

public in such a manner as to leave no discretion on the issue”; or (b) “establishes particular 

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criteria for withholding or refers to particular types of matters to be withheld.” 5 U.S.C. 

§ 552(b)(3)(A). Thus, the Commission properly withheld some or all of 35 records responsive to 

plaintiff’s FOIA request because of the confidentiality requirements of § 437g(a)(12).

3

 But 

plaintiff now argues that the scope of this section is so limited that only a “notification” of the 

filing of an administrative complaint and the subsequent “investigation” — which can only begin 

following a Commission finding that there is “reason to believe” the law has been violated, 

2 U.S.C. § 437g(a)(2) — are protected. (Opp. at 18-19.)

Plaintiff’s unduly narrow interpretation of § 437g(a)(12) is not only based on a 

fundamental misunderstanding of the confidentiality provision but is contrary to established 

precedent. The D.C. Circuit has rejected a narrow interpretation of section 437g(a)(12) and 

made clear that the Commission cannot unilaterally disclose information that would reveal the 

existence of an administrative complaint or a pending investigation. In In re Sealed Case, 237 

F.3d 657 (D.C. Cir. 2001), the Commission brought an action to enforce a subpoena issued to a 

third party during the course of an administrative investigation, and that action was supported by 

a number of exhibits placed on the court’s public docket. 

Among the exhibits, the FEC included a copy of the complaint that prompted 

the investigation, an FEC prepared “Factual and Legal Analysis” detailing 

Appellants’ alleged FECA violations, an FEC certification finding “reason to 

believe” that Appellants had violated FECA, and information referencing a 

separate FEC investigation that had no bearing on the subpoena enforcement 

action or the investigation of Appellants. 

Id. at 662. Another party then moved to place the entire matter under seal, which the lower court 

denied. On appeal the D.C. Circuit held that “both 2 U.S.C. § 437g(a)(12)(A) and [the 

 3 Section 437g(a)(12) provides that “[a]ny notification or investigation made under this 

section shall not be made public by the Commission or by any person without the written 

consent of the person receiving such notification or the person with respect to whom such 

investigation is made.” (Emphasis added.) 

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implementing regulation at] 11 C.F.R. § 111.21(a) plainly prohibit the FEC from disclosing 

information concerning ongoing investigations under any circumstances without the written 

consent of the subject of the investigation.” Id. at 666-67. “In other words, the Commission 

shall not make public an ongoing investigation or its findings concerning such an investigation 

without written consent.” Id. at 667. See also AFL-CIO v. FEC, 333 F.3d 168, 174, 178 (D.C. 

Cir. 2003) (explaining importance of confidentiality of enforcement materials in matters that 

never proceed past the “reason to believe” stage).

Although In re Sealed Case speaks in terms of keeping “an investigation” confidential, 

the ruling clearly applies to pre-“investigation” materials, such as the original administrative 

complaint; materials submitted in response to that complaint by administrative respondents under 

2 U.S.C. § 437g(a)(1), which may well include sensitive “strategic information,” AFL-CIO, 333 

F.3d at 178; and the “FEC prepared ‘Factual and Legal Analysis,’” In re Sealed Case, 237 F.3d 

at 662. This last document sets forth the factual and legal basis for the agency’s reason to 

believe finding and is transmitted to a respondent along with the notification that the 

Commission has found reason to believe that the respondent has violated or is about to violate 

FECA. 2 U.S.C. § 437g(a)(2) (“Such notification shall set forth the factual basis for such alleged 

violation.”). 

Thus, contrary to plaintiff’s claim that § 437g(a)(12) is limited to “notifications” and 

“investigations,” the D.C. Circuit has held that the confidentiality provision applies far more 

broadly. Plaintiff appears to seek the release of virtually all pre-“reason to believe” material in 

the ongoing enforcement matter implicated by the advisory opinion request at issue here. But as 

the D.C. Circuit recognized, “[t]he plain language of these provisions [2 U.S.C. § 437g(a)(12) 

and 11 C.F.R. § 111.21(a)] and the overall purpose and structure of the statutory scheme create a 

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strong confidentiality interest analogous to that protected by Federal Rule of Criminal Procedure 

6(e)(6). In both contexts, secrecy is vital to protect [an] innocent accused who is exonerated 

from disclosure of the fact that he has been under investigation.” In re Sealed Case, 237 F.3d at 

667 (citation and internal quotations omitted).

4

 Thus, contrary to plaintiff’s claim (Opp. at 19), 

Paragraph 33 of FEC attorney Buckley’s affidavit did not attempt to expand FECA’s

confidentiality provision but simply provided the respondent in an enforcement Matter Under 

Review (“MUR”) to which Buckley referred the secrecy guaranteed by the statute. 

FEC personnel were likewise required to protect the confidentiality of anyone involved in 

the pending enforcement matter both in making withholding decisions under FOIA Exemption 3 

and in the descriptions of documents contained in the Vaughn index. For example, a 

Memorandum to File by FEC attorney Cheryl Hemsley (FEC 0002-0003) was withheld from 

production pursuant to Exemption 3 because it contains a reference to a specific MUR; as is true 

with grand jury proceedings, FEC staff are constrained not to reveal even the existence of 

specific enforcement matters. Another example is the cover letter for the response submitted in a 

specific MUR (FEC 0023-0024). The entire letter and fax cover sheet were properly withheld 

under Exemption 3, and the Vaughn index does not identify the matter or any individual. 

In sum, the Commission properly refused to breach FECA’s confidentiality requirements 

regarding ongoing enforcement matters, and the Commission’s interpretation of its own statute 

and regulations is entitled to deference. FEC v. Democratic Senatorial Campaign Comm., 454 

 4 As Miller acknowledges (Opp. at 19-20), 11 C.F.R. § 111.21(a) requires in part that 

“no complaint filed with the Commission, nor any notification sent by the Commission, nor any 

investigation conducted by the Commission, nor any findings made by the Commission shall be 

made public by the Commission or by any person or entity without the written consent of the 

respondent ....” 

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U.S. 27, 37 (1981); United States v. Kanchanalak, 192 F.3d 1037, 1049 (D.C. Cir. 1999); 

Common Cause v. FEC, 842 F.2d 436, 448 (D.C. Cir. 1988).

b. The Commission properly invoked FOIA Exemption 5

As the Commission explained, the agency properly invoked FOIA Exemption 5 in 

withholding records subject to the attorney work-product doctrine and the deliberative process 

privilege. (FEC Mem. at 17-19.) Plaintiff’s objection to the Commission’s reliance on the work 

product doctrine as the basis for FOIA Exemption 5 boils down to the convoluted claim that “in 

order to justify the putative availability of the work product doctrine, the FEC attempts to elevate 

the potential of litigation regarding the unidentified or nebulous ‘confidential enforcement 

matter’ and then to bootstrap that enforcement matter onto most of the work relating to AOR 

2011-20.” (Opp. at 22.) But as explained in the previous section, FECA’s confidentiality 

provision requires maintaining the confidentiality of the existence of an enforcement matter, and 

here such a matter would have been affected by AOR 2011-20. Commission staff cannot 

publicly identify such a matter in light of the grand jury-like confidentiality requirements 

imposed by 2 U.S.C. § 437g(a)(12). 

In any case, the information the Commission withheld is subject to the work-product 

doctrine because FECA’s enforcement scheme is designed to and often does result in litigation. 

Offensive enforcement actions pursuant to 2 U.S.C. § 437g(a)(6)(A) must be filed in federal 

district court; the Commission may not unilaterally impose civil penalties for FECA violations. 

Even when the Commission dismisses administrative complaints, litigation can occur pursuant to 

2 U.S.C. § 437g(a)(8), which permits an administrative complainant with standing to challenge 

the dismissal in court if he or she believes it is contrary to law. As a result, FEC attorneys must 

work on administrative enforcement matters while anticipating district court litigation, although 

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they may not know precisely where the litigation path will lead. Thus, these enforcement 

documents often contain “files and mental impressions of an attorney,” Hickman v. Taylor, 329 

U.S. 495, 510-11 (1947), that are prepared with “an eye toward litigation,” A. Michael’s Piano, 

Inc. v. FTC, 18 F.3d 138, 146 (2d Cir. 1994). The FEC Policy Division attorneys recognized that 

AOR 2011-20 would affect a pending enforcement action, and so their “mental impressions” 

reflected an awareness that the MUR could lead to litigation. And FEC advisory opinion 

responses may themselves lead to litigation. See, e.g., Unity08 v. FEC, 596 F.3d 861 (D.C. Cir.

2010). 

The information withheld in response to plaintiff’s FOIA request illustrates these 

principles. For example:

• FEC 0019-0022, withheld from production, consists of a copy of the October 7, 

2011 letter of Phil Greenberg requesting the initiation of what became AOR 

2011-20, with extensive handwritten comments and notes in the margin by FEC 

attorney Hemsley. Those notes specifically refer to the open enforcement matter 

and clearly reflect the mental impressions of an attorney. The initial advisory 

opinion request is already part of the public record, and this copy of the document 

with non-segregable attorney notes was properly withheld under the work-product 

doctrine. 

• FEC 0105-0108, also withheld from production, is an email string among four 

FEC attorneys discussing the impact of the pending enforcement matter upon the 

question of closing AOR 2011-20 and referring to a similar situation involving 

another AO request affected by another MUR. This discussion also involved

concerns about publicly identifying the enforcement matter by its specific MUR 

number. Although the discussion does not specifically reference anticipated 

litigation, it reflects consideration of the future consequences of the FEC 

attorneys’ actions upon AO requests and enforcement matters that can lead to 

litigation. So the attorney work-product doctrine applies and invocation of

Exemption 5 was proper.

The Commission also properly withheld material under the deliberative process privilege. 

Plaintiff argues that the Commission has not shown that harm would result from the release of 

the material the agency withheld. (Opp. at 24.) But, in fact, the Commission’s evidence did 

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show that disclosure of this pre-decisional, deliberative material “would expose [the] agency’s 

decisionmaking process in such a way as to discourage discussion within the agency and thereby 

undermine the agency’s ability to perform its functions.” Schell v. Dep’t of Health and Human 

Servs., 843 F.2d 933, 940 (6th Cir. 1988). Specifically, the materials withheld were candid 

communications among Commission attorneys reflecting the “give-and-take of the consultative 

process,” Judicial Watch, Inc. v. Food and Drug Admin., 449 F.3d 141, 151 (D.C. Cir. 2006) 

(citation omitted), regarding decisions involved in handling the pending advisory opinion 

request. (See Buckley Decl. ¶ 34.) If confidential deliberative communications like these were 

to be publicly disclosed, it would impair the ability of federal agencies to make decisions on 

matters of national importance.5

c. The Commission properly invoked FOIA Exemption 6

Plaintiff takes issue (Opp. at 10 n.6) with the Commission’s redaction of four personal 

e-mail addresses and three individual phone numbers under FOIA Exemption 6 and the Privacy 

Act, 5 U.S.C. § 552a(b), suggesting that the Commission’s decision not to discuss these 

redactions in detail precludes summary judgment on the issue. But section 552a(b) of the 

Privacy Act plainly limits the release of certain personal information without that person’s 

written consent, and the Commission fully explained its decisions in its opening memorandum. 

(See FEC Mem. at 15 n.5.) If necessary, this Court can make an in camera review of the 

 5 Schell indicates that the deliberative process privilege applies broadly to communications 

among staff at different levels. That decision applied the privilege to protect a memorandum 

written by administrative law judges that was sent “to their superiors at several levels in the 

organization,” 843 F.2d at 940, noting that “a document from a subordinate to a superior official 

is more likely to be predecisional, while a document moving in the other direction is more likely 

to contain instructions to staff explaining the reasons for a decision already made,” id. at 942 

(citation omitted). In general, “[d]iscussions among agency personnel about the relative merits 

of various positions which might be adopted . . . are as much a part of the deliberative process as 

the actual recommendations and advice which are agreed upon.” Id. (citation omitted).

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relevant documents to verify that personal identifying information has been redacted. This 

information is clearly protected from disclosure, and in any event, plaintiff has articulated no 

need for it.

C. Because Plaintiff Has Not “Substantially Prevailed” on His FOIA Claim, 

He Is Not Entitled to Attorneys’ Fees 

 

Even if Miller’s request for attorneys’ fees were properly before the Court at this time, 

which it is not, he would not be entitled to any award of fees. 

As Miller notes (Opp. at 7), courts may assess reasonable attorneys’ fees against federal 

agencies only if the FOIA plaintiff has “substantially prevailed.” 5 U.S.C. § 552(a)(4)(E)(i). 

Under the FOIA attorneys’ fee provision, as significantly modified by the OPEN Government 

Act of 2007, Public L. No. 110-175, § 4, 121 Stat. 2524 (2007), a plaintiff is deemed to have 

substantially prevailed if he “has obtained relief though either — (I) a judicial order, or an 

enforceable written agreement or consent decree; or (II) a voluntary or unilateral change in 

position by the agency, if the complainant’s claim is not insubstantial.” 5 U.S.C. 

§ 552(a)(4)(E)(ii). 

Plaintiff cannot meet his burden of showing that he has “substantially prevailed” in this 

action. First, Miller has not obtained any relief through any “judicial order, or an enforceable 

written agreement or consent decree.” To meet the second standard, plaintiff’s lawsuit must 

have caused the Commission to take some affirmative action to change its position, but Miller 

has not made, and cannot make, that showing. As the Commission’s comprehensive undisputed 

evidence shows, the agency has never changed its position about how it would handle plaintiff’s 

FOIA request. In fact, the Commission consistently and deliberately proceeded to respond to the 

FOIA request, which it did in April 2012. Rather than offer any evidence of a voluntary change, 

Miller only speculates that “without the initiation of this [cause of] action the FEC would have 

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continued to refuse to acknowledge or respond to Mr. Miller’s request for these public 

documents from the FEC.” (Opp. at 8.) This unsupported argument is woefully inadequate to 

establish that Mr. Miller is a prevailing party. Plaintiff simply asserts, without providing any 

evidence, that the initiation of this lawsuit caused “a voluntary or unilateral change in [the]

position by the agency.” 5 U.S.C. § 552(a)(4)(E)(ii). 

The undisputed facts demonstrate otherwise. As the Commission’s opening 

memorandum details, the evidence shows that Commission staff had been working to respond to 

Miller’s FOIA request for months before they learned on April 9 that plaintiff had filed this suit. 

(FEC Mem. at 2-5.) Between receipt of the FOIA request in an e-mail on December 5, 2011, and 

the filing of the lawsuit, the FEC had taken multiple steps to process and respond to Mr. Miller’s 

request, including gathering and reviewing responsive documents, submitting a draft response to 

higher management for review, and determining which FOIA exemptions, if any, were relevant. 

(See FEC Facts ¶¶ 9, 20, 21, 23, 24, 32-35.) By April 2, 2012, the FOIA Public Liaison officer 

had forwarded the close-to-final draft FOIA response to the Chief FOIA officer, Greg Baker, for 

his review and approval (FEC Facts ¶ 35). Miller had filed this case about a week earlier on 

March 26, but Commission staff did not learn that he had done so until April 9, a week after Mr. 

Baker had received the draft response for his final approval and just nine days before the FEC 

provided materials in response to Miller’s FOIA request on April 18. (FEC Facts ¶¶ 36-37.) The 

record thus provides no support for Miller’s request for attorneys’ fees. 

Moreover, because Miller’s newly raised objections to the Commission’s specific 

withholding decisions are not properly before this Court and lack merit, those objections cannot 

separately justify an award of fees. The D.C. Circuit has stated that “if the government was 

‘correct as a matter of law’ to refuse a FOIA request, ‘that will be dispositive.’. . . Plaintiffs who 

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16

sue to force disclosure in such circumstances are not entitled to attorney fees.” Brayton v. Office 

of the United States Trade Representative, 641 F.3d 521, 528 (D.C. Cir. 2011) (citations 

omitted). Because the Commission is entitled to summary judgment, Miller cannot justify a fee 

award:

It is undeniable that considering the merits of an agency’s nondisclosure 

decision will frequently complicate the adjudication of motions for attorneys 

fees. But on the other side of the ledger is the concern that courts should not 

dole out fee awards to plaintiffs who bring FOIA lawsuits that cannot survive 

a motion for summary judgment. We resolved this tension long ago when we 

stated that “there can be no doubt that a party is not entitled to fees if the 

Government’s legal basis for withholding requested records is correct.” 

Id. at 528 (citation omitted). In this case, the Commission was “correct as a matter of law” to 

withhold from Miller those documents that were exempt from production. Consequently, Miller 

is not a prevailing party, and he is not entitled to recover attorneys’ fees under FOIA. 

CONCLUSION

Because plaintiff’s complaint seeks only that the Commission respond to his FOIA 

request, and the Commission has fully responded, the Court should dismiss the complaint as 

moot. Although the propriety of the FEC’s decisions to withhold certain information pursuant to 

FOIA exemptions is not properly before this Court, those exemptions were properly invoked. 

And because plaintiff cannot prevail in this matter, his request for attorneys’ fees should not be 

granted. Therefore, this Court should grant the Commission’s motion for summary judgment. 

Respectfully submitted,

Anthony Herman

General Counsel

Lisa J. Stevenson

Deputy General Counsel – Law

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17

David Kolker

Associate General Counsel

Harry J. Summers

Assistant General Counsel

/s Benjamin A. Streeter III

Benjamin A. Streeter III

Attorney

FOR THE DEFENDANT FEDERAL

ELECTION COMMISSION

999 E Street, N.W.

Washington, DC 20463

(202) 694-1650

December 21, 2012 

Case: 1:12-cv-00242-SJD Doc #: 15 Filed: 12/21/12 Page: 19 of 20 PAGEID #: 274
CERTIFICATE OF SERVICE

Benjamin A. Streeter III hereby certifies that on December 21, 2012, he filed the 

foregoing Defendant Federal Election Commission’s Reply Memorandum in Support of Its 

Motion for Summary Judgment with the Clerk of the United States District Court for the 

Southern District of Ohio via the electronic filing system, which served a copy of this filing on 

that date to the following counsel of record:

Curt Carl Hartman

The Law Firm of Curt C. Hartman

3749 Fox Point

Ameila, OH 45102

hartmanlawfirm@fuse.net 

 

Christopher P. Finney

FINNEY, STAGNARO, SABA

 & PATTERSON CO., LPA

2623 Erie Avenue

Cincinnati, OH 45208

cfinney@fssp-law.com

s/ Benjamin A. Streeter III

Benjamin A. Streeter III

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