1

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

________________________________ 

 ) 

CAUSE OF ACTION, ) 

 ) 

 Plaintiff, ) 

 ) 

v. ) Civ. Action No. 1:12-cv-00850-EGS 

 ) 

FEDERAL TRADE COMMISSION, ) 

 ) 

 Defendant. ) 

________________________________ ) 

MEMORANDUM OPINION 

 Cause of Action (“COA” or “plaintiff”) brings this case 

regarding three requests it made to Defendant, Federal Trade 

Commission (“FTC”), under the Freedom of Information Act (“FOIA”). 

Plaintiff claims that the Defendant improperly denied Plaintiff’s 

fee waiver requests because the disclosure of information it 

requested is in the public interest or because COA is a 

representative of the news media. Plaintiff also argues that the 

agency improperly withheld certain documents under FOIA’s Exemption 

5.1

. Pending before the Court is Defendant’s motion for summary 

judgment. 

Upon consideration of the motion, Plaintiff’s response, 

Defendant’s reply, the applicable law, and the entire record, and 

 

1

 The FTC also withheld certain documents under FOIA’s Exemption 6, 

which Plaintiff concedes were properly withheld. Pl.’s Opp’n to 

Mot. for Summ. J. (“Pl.’s Opp’n”) at n.20. 
2

for the reasons set forth below, Defendant’s motion for summary 

judgment is GRANTED with respect to the denial of fee waivers. With 

respect to the withholding of documents pursuant to Exemption 5, 

Defendant’s motion for summary judgment is GRANTED IN PART AND 

DENIED IN PART. 

I. BACKGROUND

 Plaintiff is a nonpartisan, nonprofit organization that “uses 

public advocacy and legal reform strategies to ensure greater 

transparency in government and protect taxpayer interests and 

economic freedom.” Complaint (“Compl.”) ¶ 5. The FTC publishes 

“Guides Concerning the Use of Endorsements and Testimonials in 

Advertising” (“Guides”). In 2009 the FTC published revisions to the 

Guides, to include social media and bloggers. Compl. ¶ 9. 

Following the revisions, the Plaintiff initiated three FOIA requests 

in 2011 and 2012. Id. ¶¶ 12, 25, 47. Plaintiff was interested in 

using the requested information to inform the public how the Guides’ 

revisions would impact bloggers and social media authors, and 

consequently affect First Amendment rights to speech. Id. ¶ 11. 

A. FOIA Request #1 (FOIA-2011-01431) 

On August 30, 2011, Plaintiff submitted its first FOIA request 

to the FTC, assigned FOIA Request No. 2011-01431. Complaint Exhibit 

(“Compl. Ex.”) 1, 2. The request sought (1) all records relating to 

the drafting, formulation, and revision of the Guides; (2) all 

records concerning the results of investigations into conduct by 
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bloggers or social media authors that allegedly violated the Guides; 

(3) all records concerning the results of investigations into 

conduct by companies that related to alleged violations of the 

Guides; and (4) copies of any other requests for information made by 

outside groups through FOIA during the last two years regarding 

revisions to the Guides. Compl. Ex. 1. Plaintiff stated that the 

information requested is in the public interest, and accordingly 

requested a complete waiver of search and duplication fees. Id. 

On September 22, 2011, the FTC denied Plaintiff’s request for a 

public interest fee waiver. Compl. Ex. 2. On September 26, 2011, 

Plaintiff asked again for a public interest fee waiver and added a 

request for a “representative of the news media” fee waiver. Compl. 

Ex. 3. On October 7, 2011, the FTC denied both fee waiver requests. 

Compl. Ex. 4. In the denial, the FTC designated Plaintiff as an 

“Other (General Public)” requestor, which is only entitled to 100 

pages of records free of charge in accordance with 16 C.F.R. § 

4.8(b)(6). Id. The FTC released 100 pages of records to plaintiff 

at that time. Id.

On October 28, 2011, Plaintiff administratively appealed the 

FTC’s denial of its public interest fee waiver. Compl. Ex. 5. On 

November 29, 2011, the FTC affirmed its denial of Plaintiff’s 

request for a public interest fee waiver for this first FOIA 

request, informing Plaintiff of its ability to appeal the FTC’s 

decision in district court. Compl. Ex. 6. 
4

On December 12, 2011, Plaintiff requested that the FTC 

reconsider its denial of Plaintiff’s appeal, reiterating its 

qualification for a public interest fee waiver for its first 

request. Compl. Ex. 9. On December 20, 2011, the FTC denied 

Plaintiff’s appeal. Compl. Ex. 10. 

On January 27, 2012, Plaintiff again requested that the FTC 

reconsider the denial of a public interest fee waiver for the first 

request and reiterated its qualification for a “representative of 

the news media” fee waiver. Compl. Ex. 12. On February 27, 2012, 

the FTC once again denied Plaintiff’s request for both fee waivers. 

Compl. Ex. 13. 

B. FOIA Request #2 (FOIA-2012-00227) 

In response to the FTC’s October 7, 2011 denial of its fee 

waiver request for its first FOIA request, Plaintiff made its second 

FOIA request on October 28, 2011, assigned FOIA Request No. 2012-

00227. Compl. Ex. 5, 7. Plaintiff asked for (1) all FOIA requests 

where the FTC granted fee waivers under the public interest 

exception since January 1, 2009 and (2) documents referring or 

relating to the process in which the FTC determined the FOIA 

requests identified in (1) were within the fee waiver exception. 

Id. Plaintiff later requested a public interest fee waiver and 

“representative of the news media” fee waiver for this request on 

December 12, 2011. Compl. Ex. 8. 
5

On January 6, 2012, the FTC denied Plaintiff both a public 

interest fee waiver and a “representative of the news media” fee 

waiver. Compl. Ex. 11. For purposes of determining fees associated 

with fulfilling plaintiff’s FOIA request, the FTC once again 

designated Plaintiff as an “Other (General Public)” requester and 

therefore entitled to 100 pages out of 156 relevant pages free of 

charge, pursuant to 16 C.F.R. § 4.8(b)(6). Compl. Ex. 11; 

Defendant’s Motion for Summary Judgment Exhibit (“Def.’s Mot. Summ. 

J. Ex.”) T; Declaration of Nathaniel Fairbanks Gray (“Gray Decl.”) 

¶¶ 20-22. The FTC withheld eight documents consisting of twelve 

pages under Exemption 5. Def.’s Mot. Summ. J. Ex. T. 

On January 27, 2012, Plaintiff appealed the FTC’s denial of 

both its public interest fee waiver request for its second request 

and denial of its “representative of the news media” fee waiver 

request. Compl. Ex. 12. On February 27, 2012, the FTC affirmed its 

denial of both the public interest fee waiver request and the 

“representative of the news media” fee waiver request. Compl. Ex. 

13. COA did not appeal the agency’s withholding of documents 

pursuant to Exemption 5, and the agency did not address this issue 

in its letter denying the appeal. Compl. Exs. 12-13. 

B. FOIA Request #3 (FOIA-2012-00687) 

On January 27, 2012, Plaintiff made its third FOIA request, 

assigned FOIA Request No. 2012-00687. Compl. Ex. 12, 14. Plaintiff 

requested (1) all records relating to the drafting, formulation, and 
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revision of the Guides Concerning Use of Endorsements and 

Testimonials in Advertising concerning social media authors and 

bloggers between January 1, 2009 and November 6, 2011; (2) all 

documents, including e-mail communications, referring or relating to 

FTC orders, decisions, memoranda, interpretations, instructions, 

statements of policy, or guidelines to staff for the purposes of 

evaluating fee waiver requests under the public interest exception; 

and (3) all documents, including e-mail communications, referring to 

or relating to the process the FTC used to deny Plaintiff a fee 

waiver. Compl. Ex. 12. 

On March 19, 2012, the FTC informed COA that it had located 

ninety-five pages of information responsive to the request. Compl. 

Ex. 14; Declaration of Dione Jackson Stearns (“Stearns Decl.”) ¶ 18; 

Gray Decl. at ¶¶ 24, 26. The FTC released free of charge seventynine pages relating to the second and third parts of the request, 

and withheld five documents consisting of sixteen pages under 

Exemption 5. Compl. Ex. 14; Def.’s Mot. Summ. J. Ex. T. Documents 

9 and 10, consisting of one page each, are screenshots of 

Plaintiff’s website which were taken by a paralegal under the 

direction of his supervising attorney and withheld under Exemption 

5’s deliberative process privilege and attorney work-product 

privilege. Id. Document 11, consisting of four pages, Document 12, 

consisting of four pages, and Document 13, consisting of six pages, 

are memoranda written by a paralegal to a superior and were also 
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withheld under Exemption 5’s deliberative process and attorney workproduct privileges. Id. The FTC did not determine whether 

Plaintiff was entitled to a public interest fee waiver or a 

“representative of the news media” fee waiver for this FOIA request, 

explaining that it had only located ninety-five pages of responsive 

information, which COA was entitled to receive free of charge under 

16 C.F.R. § 4.8(b)(6) even without a fee waiver. Compl. Ex. 14. 

On April 4, 2012, Plaintiff appealed the withholding and 

asserted its entitlement to both a public interest fee waiver and a 

“representative of the news media” fee waiver. Compl. Ex. 15. On 

May 7, 2012, the FTC affirmed its withholding and declared the fee 

waiver issue moot. Compl. Ex. 16. 

Plaintiff then initiated this suit on May 25, 2012. The FTC 

moved for summary judgment. The motion is ripe for resolution by 

the Court. 

II. STANDARD OF REVIEW 

Summary judgment is granted when there is no genuine issue of 

material fact and the movant is entitled to judgment as a matter of 

law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 

325 (1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991 (D.C. 

Cir. 2002). In determining whether a genuine issue of fact exists, 

the court must view all facts in the light most favorable to the 

non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio 

Corp., 475 U.S. 574, 587 (1986). Under FOIA, all underlying facts 
8

and inferences are analyzed in the light most favorable to the FOIA 

requester; as such, only after an agency proves that it has fully 

discharged its FOIA obligations is summary judgment appropriate. 

Moore v. Aspin, 916 F. Supp. 32, 35 (D.D.C. 1996) (citing Weisberg 

v. U.S. Dep't of Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983)). 

FOIA cases are typically and appropriately decided on motions for 

summary judgment. Gold Anti-Trust Action Comm., Inc. v. Bd. of 

Governors of Fed. Reserve Sys., 762 F. Supp. 2d 123, 130 (D.D.C. 

2011) (citations omitted). 

In reviewing a motion for summary judgment under the FOIA, the 

court must conduct a de novo review of the record. See 5 U.S.C. § 

552(a)(4)(B) (2012). The court may award summary judgment solely on 

the basis of information provided by the department or agency in 

affidavits or declarations that describe “the documents and the 

justifications for nondisclosure with reasonably specific detail, 

demonstrate that the information withheld logically falls within the 

claimed exemption, and are not controverted by either contrary 

evidence in the record nor by evidence of agency bad faith.” 

Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); 

see also Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973), 

cert. denied, 415 U.S. 977 (1974). Agency affidavits or declarations 

must be “relatively detailed and non-conclusory.” SafeCard Services 

v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991). Such affidavits or 

declarations are accorded “a presumption of good faith, which cannot 
9

be rebutted by purely speculative claims about the existence and 

discoverability of other documents.” Id. (internal citation and 

quotation omitted). An agency has the burden of demonstrating that 

“each document that falls within the class requested either has been 

produced, is unidentifiable, or is wholly [or partially] exempt from 

the Act's inspection requirements.” Goland v. CIA, 607 F.2d 339, 352 

(D.C. Cir. 1978) (internal citation and quotation omitted). 

III. ANALYSIS 

The issues before this Court are (1) whether the FTC properly 

determined Plaintiff’s qualification for public interest fee waivers 

and “representative of the news media” fee waivers for all three of 

Plaintiff’s FOIA requests and (2) whether the FTC properly withheld 

documents under Exemption 5 for Plaintiff’s second and third FOIA 

requests. The Court will address them in turn. 

A. FEE WAIVERS 

The disputes regarding COA’s fee waivers fall into three 

categories. First, COA argues that the FTC improperly denied 

Plaintiff a public interest fee waiver for its first and second FOIA 

requests. Second, COA claims the FTC improperly denied Plaintiff a 

“representative of the news media” fee waiver for the same requests. 

Finally, COA argues that the FTC improperly declared the fee waiver 

issue moot for Plaintiff’s third FOIA request. 

For the reasons that follow, the Court finds that the FTC was 

justified in denying Plaintiff a fee waiver for its first and second 
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FOIA requests. Finally, the Court finds that the FTC properly 

declared the fee waiver issue moot for Plaintiff’s third request. 

 1. Public Interest Fee Waiver 

 Fee waivers are granted if the requested information is “in the 

public interest because it is likely to contribute significantly to 

public understanding of the operations or activities of government 

and is not primarily in the commercial interest of the requestor.” 5 

U.S.C. § 552(a)(4)(A)(iii) (2012). 

 The first prong of the test requires the requested information 

be in the public interest. The FTC has promulgated a regulation 

setting out four requirements a party making a FOIA request must 

meet to satisfy this standard. 16 C.F.R. § 4.8(e)(2). First, 

requestors must demonstrate that the information they seek concerns 

the operations or activities of government. Second, they must 

demonstrate that the disclosure is likely to contribute to an 

understanding of the operations or activities of government. Third, 

they must show that the disclosure will contribute to an 

understanding of the subject by the public at large. Fourth, they 

must demonstrate that the information will contribute significantly

to such understanding. Id.; see also Judicial Watch, Inc. v. U.S. 

Dept. of Justice, 365 F.3d 1108, 1126 (D.C. Cir. 2004); Judicial 

Watch, Inc. v. Rossotti, 326 F.3d 1309, 1312 (D.C. Cir. 2003). All 

four requirements must be met in order to demonstrate that the 

request is in the public interest. Id.
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 The second prong requires that the requested information not be 

in the requestor’s commercial interest. First, the court must 

evaluate whether the requestor has a commercial interest that would 

be furthered by the information’s disclosure. Second, the court 

must evaluate whether any identified commercial interest is 

sufficiently large in comparison with the public interest in 

disclosure, thus rendering any disclosure primarily in the 

commercial interest of the requestor. 5 U.S.C. § 552(a)(4)(A)(iii); 

see also 16 C.F.R. § 4.8(e)(2); Fed. CURE v. Lappin, 602 F. Supp. 2d 

197, 201 (D.D.C. 2009). 

Courts are to keep in mind that Congress amended FOIA to ensure 

that it be “liberally construed in favor of waivers for 

noncommercial requestors.” McClellan Ecological Seepage Situation 

v. Carlucci, 835 F.2d 1282, 1284 (9th Cir. 1987) (citation omitted). 

Fee waiver requests, however, should still be made with “reasonable 

specificity,” Larson v. CIA, 843 F.2d 1481, 1483 (D.C. Cir. 1988) 

(citing McClellan, 835 F.2d at 1285), and be based on more than 

“conclusory allegations,” Nat’l Treasury Employees Union v. Griffin,

811 F.2d 644, 647 (D.C. Cir. 1987). The court shall review the 

FTC’s fee waiver determinations de novo and its review “shall be 

limited to the record before the agency.” 5 U.S.C. § 

552(a)(4)(A)(vii). The requester has the burden of proving that its 

request satisfies the public interest standard for fee waivers. 

Larson, 843 F.2d at 1483. 
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 a. Request #1 (FOIA-2011-01431) 

 Plaintiff is not entitled to a public interest fee waiver for 

its first request because it does not satisfy the “public interest” 

prong of the test.2

 Plaintiff fails the “public interest” prong of 

the test because the third element is not satisfied, even if the 

first, second, and fourth elements are satisfied. 

 

2

 Plaintiff does not demonstrate any commercial interests in this 

request. However, Plaintiff’s reasoning for satisfying the 

“commercial interest” prong of the test is flawed. Plaintiff argues 

that the information is not for commercial purposes since it is a 

nonprofit. Plaintiff’s Opposition to Defendant’s Motion for Summary 

Judgment (“Pl.’s Opp’n”) 26. The FTC, citing Forest Guardians v. 

U.S. Dep’t of Interior, 416 F.3d 1173, 1177-78 (10th Cir. 2005), 

responds that Plaintiff’s nonprofit status does not automatically 

demonstrate its noncommercial interests in the request. Defendant’s 

Reply in Support of its Motion for Summary Judgment (“Def.’s Reply”) 

3. 

The Court agrees with the FTC that Plaintiff’s nonprofit status 

does not automatically demonstrate Plaintiff has no commercial 

interests in the request. See Consumers' Checkbook, Ctr. for Study 

of Servs. v. U.S. Dep’t of Health & Human Servs., 502 F. Supp. 2d 

79, 89 (D.D.C. 2007) (hereinafter Consumers’ Checkbook) (holding 

that the nonprofit requestor still had a commercial interest in the 

requested information since it would disseminate the information for 

a fee), rev'd on other grounds, 554 F.3d 1046 (D.C. Cir. 2009). 

Nevertheless, the Court still finds that Plaintiff has 

sufficiently demonstrated its noncommercial interests in its 

request. A nonprofit will not have any commercial interests if its 

primary interest in the information is to distribute it to the 

public. See Consumers’ Checkbook, 502 F. Supp. 2d at 89. Here, 

Plaintiff indicated that its interest in the information is to use 

it to perform government oversight functions. Pl.’s Opp’n at 26. 

Plaintiff has indicated that it is interested in using the 

information to inform the public about the Guides’ effects on First 

Amendment rights to freedom of speech. Compl. Ex. 5. As a result, 

Plaintiff has demonstrated it has no commercial interests in its 

first request. 
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The Court finds the first element is satisfied because the 

requested information involves the operations or activities of 

government. The information involves the operations and activities 

of government because it would provide insight into the FTC’s 

decision-making process regarding the enforcement of the Guides; it 

concerns government investigations; and it involves communications 

between the government and other outside agencies. Other courts in 

this Circuit have found similar information to involve the 

operations or activities of government. See Ctr. for Medicare 

Advocacy v. U.S. Dep’t of Health & Human Servs., 577 F. Supp. 2d 

221, 240-41 (D.D.C. 2008) (finding documents illustrating the 

decision-making process used by agencies to create a new hearings 

system involved the operations and activities of government); 

Judicial Watch, Inc. v. U.S. Dep't of Transportation, No. 02-566, 

2005 U.S. Dist. LEXIS 14025, at *11-12 (D.D.C. July 8, 2005) 

(finding information regarding communications between a FAA Deputy 

Administrator and technology companies concerned the operations or 

activities of government). 

Plaintiff also met its burden under the second element since 

the information is likely to contribute to public understanding. 

The information will likely contribute to public understanding 

because it could inform social media authors and bloggers about the 

Guides’ effects on their activities. See Rossotti, 326 F.3d at 

1313-14 (finding that information would likely contribute to public 
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understanding as long as there is a potential for public 

understanding). Plaintiff has also indicated that the information 

on the FTC’s Guides would inform the public about how government 

action impacts First Amendment rights. Compare Prison Legal News v. 

Lappin, 436 F. Supp. 2d 17, 26 (D.D.C. 2006) (finding the requested 

information satisfied the second element because it would provide 

insight into how well the government managed prisons) with Judicial 

Watch, Inc. v. U.S. Dep’t of Justice, 122 F. Supp. 2d 13, 18 (D.D.C. 

2000) (hereinafter Judicial Watch I) (finding the requestor could 

not satisfy this element without demonstrating how the requested 

information will inform the public about government activities or 

operations). 

 The fourth element is also satisfied since plaintiff has shown 

the information will contribute significantly to public 

understanding. The FTC argues that the requested information would 

not significantly contribute to public understanding because the FTC 

has already published synthesized information on the Guides’ 

enforcement online in a “What People Are Asking” document. See 

Def.’s Mot. Summ. J. at 11; Def.’s Reply at 8. The FTC also argues 

that it has published an article online regarding staff commentaries 

and closing letters on investigations into violations of the Guides. 

Id. Plaintiff, however, argues that not all information about the 

drafting of the Guides and about all relevant FTC investigations on 

possible violations of the Guides is publicly available. Pl.’s 
15

Opp’n at 30. Furthermore, Plaintiff argues that the “What People 

are Asking” document is not sufficient to contribute to public 

understanding because the document is only an eight-page summary 

produced by the FTC that only vaguely illustrates how the agency 

enforces the Guides. Id. 

 The Court agrees with Plaintiff on this issue. To show that 

information will contribute significantly to public understanding, 

Plaintiff must demonstrate that the requested information has not 

met a threshold level of public availability. See Campbell v. U.S. 

Dep’t of Justice, 164 F.3d 20, 36 (D.C. Cir. 1998). When the 

requested information is not publicly available, it will more likely 

contribute significantly to public understanding. See Fed. CURE, 

602 F. Supp. 2d at 205-06. However, even if some of the requested 

information is publicly available in synthesized form, there exists 

some significant benefit to public understanding if the plaintiff 

requests raw information from the agency to synthesize it and 

perform a public oversight function. See Consumers' Checkbook, 502 

F. Supp. 2d at 87-88. Nevertheless, the primary beneficiary of the 

disclosure should still be the public. Nat'l Treasury Employees 

Union, 811 F.2d at 647-48; Monroe-Bey v. FBI, 890 F. Supp. 2d 92, 98 

(D.D.C. 2012); Van Fripp v. Parks, No. 97-0159, 2000 U.S. Dist. 

LEXIS 20158, at *22. (D.D.C. Mar. 16, 2000). 

Because Plaintiff claims not all information about the Guides’ 

drafting and about specific FTC investigations is in the public 
16

domain, the requested information would contribute to public 

understanding. Even if some synthesized information regarding the 

Guides’ enforcement and investigations is available online, there 

may be some public benefit to Plaintiff receiving all relevant raw 

information from the FTC regarding the enforcement and 

investigations into the Guides to do an independent analysis and 

synthesis of the information. 

Nevertheless, Plaintiff did not satisfy the third element of 

the public interest test because it has not demonstrated that the 

requested information would increase understanding of the public at 

large. 16 C.F.R. § 4.8(e)(2)(i)(C). Accordingly, the Court finds 

that Plaintiff has not met the public interest prong of the public 

interest fee waiver test. 

 To show the requested information would increase understanding 

of the public at large, Plaintiff must demonstrate “in detailed and 

non-conclusory terms,” that it has the intent and ability to 

effectively convey the information to a broad segment of the public 

and therefore, the FTC, as surrogate for the public, should foot the 

bill for a fee waiver. See Rossotti, 326 F.3d at 1312; Judicial 

Watch I, 122 F. Supp. 2d at 18. Although requestors are not 

required to explain their dissemination plan with “pointless 

specificity” to satisfy this element, they must identify several 

methods of disseminating the information and provide some concrete 

basis upon which the agency can conclude that those methods are 
17

adequate to convey the requested information to a wide audience. See 

Rossotti, 326 F.3d at 1314 (dissemination element satisfied where 

plaintiff Judicial Watch identified nine ways it communicates 

information to the public, including news releases, monthly 

newsletters, radio and television programs it produces, and also 

provided numerical estimates of the number of people reached through 

some of these methods); Fed. CURE, 602 F. Supp. 2d at 204 (plaintiff 

satisfied element where it “provided reasonably specific numbers 

detailing its subscribers and readership” for its website, 

newsletter and on-line discussion groups); Judicial Watch Inc., 185 

F. Supp. 2d at 62 (plaintiff described “several mechanisms” for 

disseminating information, including its website, blast faxes, and 

radio and television programs); Landmark Legal Found. v. IRS, Case 

No. 97-1474, 1998 U.S. Dist. LEXIS 21722 at *4-5 (D.D.C. Sept. 22, 

1998)(organization identified six methods of distribution and 

provided estimates of number of people reached via website, 

newsletters, blast faxes, letters to Congress, etc.). 

In this case, by contrast, COA has not met its burden. 

Throughout its voluminous correspondence with the FTC regarding its 

first FOIA request, it identified only two methods of dissemination, 

which it discussed only in footnotes: its website and articles 

published by news media that have relied upon COA’s past work on 

other issues. See Compl. Exs. 5, 12. Plaintiff did not provide any 

estimate of the number of people likely to view its website, nor did 
18

it demonstrate other ways in which it would disseminate the 

information itself, without relying on another source.3 Id. And 

although COA provided a string cite of articles authored and 

published by other outlets as a result of its past efforts to gather 

information on other topics, it specified no organizations which 

would disseminate this information. Id. Other courts have found 

similar claims lack the specificity and certainty to support a 

finding that a fee-waiver requestor has the ability to disseminate 

information to a reasonably broad segment of the public. See, e.g., 

Oglesby v. Dep’t of the Army, 920 F.2d 57, 66 n.11 (D.C. Cir. 1990) 

(finding a writer’s past work insufficient to justify a fee waiver); 

Judicial Watch I, 122 F. Supp. 2d at 18-19 (finding the requestor 

did not show its intent and ability to disseminate when it had not 

identified the media contacts that would produce the requested 

information); Judicial Watch, Inc. v. U.S. Dep’t of Justice, No. 

Civ. 99-2315, 2000 U.S. Dist. LEXIS 19789 at *14-15 (D.D.C. Aug. 17, 

2000) (finding requestor’s past record in uncovering information 

“simply irrelevant” to fee waiver analysis because a FOIA analysis 

 

3

 In its January 27, 2012 letter, COA argued it should receive a fee 

waiver as a representative of the news media – not under the public 

interest exemption – because it had published information on 

Facebook, Twitter, and via an email newsletter to “subscribers” 

during the previous five months. Compl. Ex. 12 at 7. Again, 

however, plaintiff provided no details about its online presence, 

including any information about numbers of subscribers, viewers or 

followers, nor did it mention the frequency of its posts or 

publications. 
19

focuses on the “subject and impact of the particular disclosure, not 

the record of the requesting party”). 

In its Opposition, Plaintiff argues that it meets the 

dissemination element by pointing to its past experience turning raw 

materials into distinct works and disseminating information to its 

media contacts. Pl.’s Opp’n at 27. Plaintiff also claims it would 

disseminate the information through its media contacts, on its 

website, via its newsletter, and through its social media sites. 

Pl.’s Opp’n at 28. The FTC, however, correctly argues that 

Plaintiff did not provide most of this evidence during the lengthy 

administrative process, and correctly states that judicial review of 

fee waiver denials is limited to the administrative record. Def.’s 

Mot. Summ. J. at 12; see Def.’s Reply at 4-7. 

Based on the foregoing, the Court concludes that plaintiff has 

not demonstrated with sufficient specificity that it has the ability 

to convey the information in its first FOIA request to the general 

public. Because the plaintiff did not satisfy the third element of 

the public interest prong of the test, the FTC properly denied 

Plaintiff a public interest fee waiver for its first request. 

 b. Request #2 (FOIA-2012-00227) 

 Plaintiff is not entitled to a public interest fee waiver for 

its second request concerning the FTC’s history granting public 

interest fee waivers. This request fails the “public interest” 
20

prong because while the first and second elements of the test are 

satisfied, the third and fourth elements are not. 

Plaintiff satisfies the first element since the information it 

requests involves the operations or activities of government. The 

requested information involves the operations and activities of 

government because it concerns the FTC’s decision-making process on 

fee waivers. See Judicial Watch, Inc., 365 F.3d at 1126-27 (finding 

information on FOIA requests regarding presidential pardons involved 

the operations and activities of government). 

Plaintiff satisfies the second element since the information is 

likely to contribute to public understanding. The requested 

information is likely to contribute to public understanding by 

enlightening the public on how to obtain public interest fee waivers 

for FOIA requests. See Rossotti, 326 F.3d at 1313-14; Prison Legal 

News, 436 F. Supp. 2d at 26. 

However, Plaintiff has not met the third element and shown that 

the requested information will contribute to understanding of the 

public at large. Plaintiff and the FTC largely repeat their 

arguments regarding the first request for this second request. The 

FTC, however, also adds that Plaintiff did not satisfy this element 

because Plaintiff’s website was not even functional at the time of 

this second request. Def.’s Mot. Summ. J. at 11; Def.’s Reply at 16. 

Plaintiff contests this fact. Plaintiff’s Statement of Genuine 
21

Issues and Response to Defendant’s Statement of Material Facts 

(“Pl.’s Genuine Issues”) 2-3. 

The Court finds that Plaintiff did not satisfy this third 

element for the same reasons that Plaintiff did not satisfy this 

third element for its first request: COA did not specifically 

demonstrate its intent and ability to disseminate the requested 

information to the public. Regardless of whether or not the website 

was functional, Plaintiff made no attempt to explain how many people 

likely view its website and thus would likely view the requested 

information. See generally Pl.’s Opp’n. Plaintiff’s lack of 

specificity in this matter means it has not met its burden to 

indicate its intent and ability to disseminate the information to 

the public. See Rossotti, 326 F.3d at 1314; Fed. CURE, 602 F. Supp. 

2d at 203; Judicial Watch Inc., 2005 U.S. Dist. LEXIS 14025, at *13-

14. 

Plaintiff has also not satisfied the fourth element of the test 

and shown that the information would significantly contribute to 

public understanding. Because the primary beneficiary of the 

requested information is Plaintiff, the information is not likely to 

significantly contribute to public understanding. See Nat'l 

Treasury Employees Union, 811 F.2d at 647-49; Monroe-Bey, 890 F. 

Supp. 2d at 98. 

Plaintiff argues that it satisfies this element because it will 

write a report describing how the FTC grants public interest fee 
22

waivers, which will benefit the public. Opp’n at 7-8, 31-32. The 

FTC argues that Plaintiff has not shown that the report would 

benefit the public. Def.’s Mot. Summ. J. at 12; see Def.’s Reply at 

14. 

The Court agrees with the FTC. In National Treasury Employees 

Union, the court denied the plaintiff a fee waiver for a FOIA 

request concerning information on employees who had previously 

received awards and bonuses. 811 F.2d at 648. Even though the 

union’s large size meant the information could improve labor 

relations and working conditions for a large part of the population, 

the court still denied the union a fee waiver because the union 

primarily made the request to benefit its “unique and limited” 

private interests. Id. 

Similar to the union’s requested information, Plaintiff’s 

proposed report on the FTC’s fee waiver grants may well benefit the 

public, but the record does not indicate that Plaintiff primarily 

made this second request in order to write that report to benefit 

the public. First, Plaintiff made this second request in the same 

letter it was appealing the FTC’s denial of a public interest fee 

waiver for its first request. Compl. Ex. 5. In fact, Plaintiff 

made this second request contingent on the possibility that “upon 

review of [its] appeal, the FTC continues to deny Cause of Action’s 

claims for a fee waiver under the public interest exception.” Id. 

Because Plaintiff only wanted to pursue this second request if the 
23

FTC found it was not entitled to a public interest fee waiver on the 

first request, 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. Second, Plaintiff 

never expressly indicated in this second request that it had plans 

to use the information to inform the public about the FTC’s history 

of granting fee waivers. Id. This fact has made the Court 

skeptical of Plaintiff’s intentions of benefiting the public with 

this second request, because Plaintiff had made clear its intentions 

of informing the public when it made its first FOIA request. See 

Compl. Ex. 1. Because plaintiff has not demonstrated that the 

public was the primary beneficiary of the requested information, 

Plaintiff does not satisfy the fourth element of the “public 

interest” prong of the test.4

 

4

 Having concluded that COA’s second FOIA request fails the public 

interest prong of the test, it is unnecessary to determine whether 

it meets the commercial interest prong. See 5 U.S.C. § 

552(a)(4)(A)(iii) (fee waiver granted only if the requested 

information contributes to “public understanding of the operations 

or activities of government and is not primarily in the commercial 

interest of the requestor.” (emphasis added). Even if the Court 

were to consider the commercial interest prong of the test, however, 

it would likely find COA’s second request fails that as well, 

because of its nexus with the lawsuit plaintiff filed against the 

agency. See Rozet v. HUD, 59 F. Supp. 2d 55, 57 (D.D.C. 

1999)(requested information designed to further plaintiff’s 

commercial position in a civil suit with agency advances plaintiff’s 

commercial interest, rather than the public interest); see also 

Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 816 (2d Cir. 1994) 

(request for records relating to processing of plaintiff’s own FOIA 

requests were in preparation for litigation with the agency over 

those requests, and therefore not in the public interest).
24

 Accordingly, the FTC properly denied Plaintiff’s request for 

a public interest fee waiver for its second request. 

c. Request #3 (FOIA-2012-00687)

 The fee waiver issue for Plaintiff’s third request is moot 

because no fees were associated with the request. As set forth 

above, plaintiff was designated as an “Other (General Public)” 

requestor, and thus under 16 C.F.R. § 4.8(b)(3) was entitled to 100 

disclosable responsive pages free of charge. Def.’s Mot. Summ. J. 

at 12; Def.’s Reply at 17;. Plaintiff’s third request yielded 

ninety-five responsive pages. The agency determined that sixteen 

pages were exempt and provided plaintiff with seventy nine pages 

free of charge. Plaintiff did not have to pay a fee for the request 

and the FTC did not have to consider whether Plaintiff was entitled 

to a fee waiver. Id. 

 Plaintiff claims, however, that the FTC should have still made 

a determination on its fee waiver request regardless of how many 

documents were ultimately withheld. Pl.’s Opp’n at 33. Plaintiff 

contends that had it been entitled to receive more than 100 pages 

under a revised search, there would have been a fee associated with 

its third request. Id. Plaintiff bolsters its argument by pointing 

to an instance where the FTC granted a fee waiver to another group 

even when the FTC only located thirty-five pages, six of which were 

exempt. Id. The FTC responds by claiming that fee waiver 
25

determinations are made on a case-by-case basis. Def.’s Reply at 

18. 

 The Court agrees with the FTC on this issue. Agencies are 

discouraged from making fee waiver determinations based on the 

possibility that some records may ultimately be determined to be 

exempt from disclosure. Schoenman v. FBI, 604 F. Supp. 2d 174, 190 

(D.D.C. 2009) (quoting Judicial Watch, Inc., 2005 U.S. Dist. LEXIS 

14025, at *12); see also Carney, 19 F.3d at 815 (finding that 

agencies should only deny fee waiver requests for “patently exempt 

documents”). Courts do not want agencies to deny fee waivers based 

on the possibility of the documents’ exempt status only because it 

might permit an agency to “require a requestor who is otherwise 

entitled to a fee waiver to make payment even before the agency’s 

claimed exemption has been tested in court” or because it might 

discourage requestors from testing the boundaries of FOIA’s 

exemptions. Carney, 19 F.3d at 815; see Schoenman, 604 F. Supp. 2d 

at 190; Judicial Watch, Inc., 2005 U.S. Dist. LEXIS 14025, at *12. 

In Schoenman, the court found it unacceptable for the agency to deny 

the requestor a fee waiver after finding that portions of the 

requested documents were exempted. 604 F. Supp. 2d at 190. In 

Judicial Watch, Inc., the agency was not permitted to deny the 

requestor a fee waiver after finding most of the information was 

exempt and the non-exempt information did not satisfy the public 

interest fee waiver test. 2005 U.S. Dist. LEXIS 14025, at *12. 
26

 However, unlike Schoenman and Judicial Watch, Inc., the FTC 

declared Plaintiff’s fee waiver issue moot not based on the number 

of pages that were exempt, but based on the fact that it only found 

less than 100 responsive pages for Plaintiff’s third request. As a 

result, the FTC could not have been discouraging Plaintiff from 

testing the bounds of FOIA’s exemptions because it did not base 

Plaintiff’s fee waiver determination on the number of pages that 

were exempted. Furthermore, the concern that the FTC made a fee 

waiver determination before the exemptions were tested in court is 

not relevant here. Even if this Court found that the FTC improperly 

withheld the sixteen pages from Plaintiff, Plaintiff would still 

only receive ninety-five pages and Plaintiff would still not be 

required to pay a fee under 16 C.F.R. § 4.8(b)(3). 

 Moreover, Plaintiff’s arguments that it might be required to 

pay a fee if a revised search produces more than 100 pages is 

unpersuasive. It is inappropriate to speculate about the existence 

of other responsive documents for Plaintiff’s request that may have 

entitled Plaintiff to more than 100 pages. See SafeCard Services,

926 F.2d at 1200 (finding that agency affidavits or declarations are 

accorded “a presumption of good faith, which cannot be rebutted by 

purely speculative claims about the existence and discoverability of 

other documents”). The FTC’s affidavits indicate it performed a 

thorough and diligent search regarding Plaintiff’s request, Gray 

Decl. at ¶¶ 24-26, and COA does not challenge the adequacy of the 
27

search in this litigation. Thus, the fee waiver issue for 

Plaintiff’s third request is moot. 

 2. “Representative of the News Media” Fee Waiver 

Fees associated with FOIA requests are “limited to reasonable 

standard charges for document duplication when records are not 

sought for commercial use and the request is made by . . . a 

representative of the news media.” 5 U.S.C. § 552(a)(4)(A)(ii)(II) 

(2012). A representative of the news media is a person or entity 

that (1) gathers information of potential interest to a segment of 

the public; (2) uses its editorial skills to turn the raw materials 

into a distinct work; and (3) distributes that work to an audience. 

Nat’l Sec. Archive v. U.S. Dep’t of Def., 880 F.2d 1381, 1387 (D.C. 

Cir. 1989). The Court’s review of the agency’s denial is de novo. 

See Id., 880 F.2d at 1383; Elec. Privacy Info. Ctr. v. U.S. Dep’t of 

Def., 241 F. Supp. 2d 5, 9 (D.D.C. 2003) (hereinafter “EPIC”); 

Judicial Watch, Inc. v. U.S. Dep’t of Justice, 185 F. Supp. 2d at 

59. The Court’s review is also limited to the record before the 

agency. Judicial Watch, Inc., 185 F. Supp. 2d at 59. The requestor 

has the burden of proving it is a representative of the news media. 

Id. at 60; Hall v. CIA, Case 04-814, 2005 U.S. Dist. LEXIS 6638, *21 

(D.D.C. Apr. 13, 2005). 

For the reasons set forth in Section III.A.1.C above, 

plaintiff’s request for a fee waiver for its third request is moot 

because no fees were associated with the request. Accordingly, the 
28

Court must determine whether Plaintiff sufficiently demonstrated its 

qualification for a “representative of the news media” fee waiver 

for its first and second FOIA requests.5 

The Court concludes Plaintiff has not sufficiently demonstrated 

it is entitled to “representative of the news media” for either 

request. Plaintiff satisfies the first element of the definition 

but not the second or third elements. 

 Plaintiff satisfies the first element because it gathers 

information of potential interest to a segment of the public. 

Plaintiff’s first request regarding the FTC’s Guides satisfies this 

element because the request involves gathering information on social 

media authors and blogger’s First Amendment rights. See EPIC, 241 F. 

Supp. 2d at 11 (finding information on privacy issues and civil 

liberties was of potential interest to the public). Plaintiff’s 

second request regarding fee waiver denials also satisfies this 

element because it involves gathering information on government 

decisions that can affect parts of the population. See Nat’l Sec. 

 

5

 The FTC claims COA did not exhaust its administrative remedies for 

its first request because it failed to raise the news media issue in 

its initial appeal of FTC’s denial of a fee waiver. See Compl. Ex. 

5, Compl. Ex. 6 n.1. Plaintiff responds that it “continuously 

asserted that it was a news media requestor” throughout its 

voluminous correspondence with the FTC, which often addressed 

multiple FOIA requests and asserted multiple theories for fee 

waivers within the same letters. Opp’n at 5, citing Compl. Ex. 3 at 

2, Ex. 8 at 5, Ex. 12 at 7. Assuming without deciding that 

plaintiff exhausted its administrative remedies, plaintiff’s request 

is denied on the merits for the reasons set forth below. 
29

Archive, 880 F.2d at 1386 (finding information on U.S. foreign 

affairs was of potential interest to the public). 

 Plaintiff, however, does not satisfy the second element by 

showing it uses its editorial skills to turn raw material into a 

distinct work. To satisfy the second element, Plaintiff must 

demonstrate that it would use information from a range of sources to 

independently produce a unique product. Nat’l Sec. Archive, 880 

F.2d at 1386; EPIC, 241 F. Supp. 2d at 11-12. In National Security 

Archive, the requestor satisfied this element because it was 

gathering raw material from a wide variety of sources in addition to 

the FOIA requests at issue in order to create “document sets” on 

specific topics, as it previously had done in a published book. 880 

F.2d at 1386. The requestor in EPIC identified seven books it 

previously published that contained information derived from various 

sources beyond FOIA requests to substantiate its intent and ability 

to do so again. 241 F. Supp. 2d at 11-12. 

 COA has not shown it is like the plaintiffs in those cases. 

The only information it identified as “published” is unspecified 

information it posts on its website, social media sites such as 

Facebook and Twitter, and through an email newsletter it began 

publishing to subscribers beginning in September 2011, after it made 

its first FOIA request and just one month before it filed its second 

request. Pl.’s Opp’n at 36-37, see also Compl. ¶¶ 12,25, Ex. 8 at 
30

4, Ex. 12 at 7.6 Also unlike those plaintiffs, COA did not indicate 

any distinct work it planned to create based on the requested 

information or that it would use any information beyond that 

obtained in the FOIA requests to create any unique product. See 

Compl. Ex. 12. Accordingly, it did not satisfy the second element 

of the news media requestor definition. 

 Even if it had satisfied the second element, however, COA would 

not qualify for the news media fee waiver because it did not satisfy 

the third element: that it has an intent and ability to disseminate 

its work. To satisfy this element, Plaintiff must demonstrate that 

it has the intent and ability to disseminate the requested 

information to the public rather than merely make it available; 

Plaintiff must also demonstrate that its operational activities are 

especially organized around doing so. See EPIC, 241 F. Supp. 2d. at 

12-13; Nat’l Sec. Archive, 880 F.2d at 1386-87; Judicial Watch, 

Inc., 185 F. Supp. 2d at 59-60; Judicial Watch I, 122 F. Supp. 2d at 

21. 

Plaintiff points to its periodical newsletter, website, social 

media sites, and relationships with media contacts as proof of its 

intent and ability to disseminate the information. Pl.’s Opp’n at 

36-38. The FTC argues that Plaintiff did not demonstrate it could 

 

6

 Plaintiff provided slightly more information regarding its 

publishing practices in its April 4, 2012 letter to the FTC, but 

this letter was solely in reference to its third FOIA request. It 

was not before the Agency in its determination regarding plaintiff’s 

first two requests. See Compl. Ex. 15. 
31

disseminate its work to an audience because it characterized its 

actions as more like a middleman for dissemination to the media than 

a representative of the media itself. Def.’s Mot. Summ. J. at 11-

12; Def.’s Reply at 11. Furthermore, the FTC argues that 

Plaintiff’s website was not functioning at the time of the second 

request and that its list of media contacts is not part of the 

administrative record. Id. 

 Upon review of the administrative record, the Court finds 

Plaintiff did not satisfy the third element of the news media 

requestor definition. First, Plaintiff has not specifically 

demonstrated its intent and ability to disseminate the requested 

information to the public rather than merely make it available. In 

EPIC, the requestor satisfied this element by indicating that its 

newsletter reached 15,000 readers and had been published every two 

weeks for the past eight years. 241 F. Supp. 2d at 12-13. By 

contrast, COA’s newsletter did not even exist until after it made 

its first FOIA request, and had only been published for a month when 

it filed its second request. Although COA claimed it would 

disseminate the requested information through its periodical 

newsletter, website, social media sites, and media contacts, 

Plaintiff has not estimated how many people view its website or 

social media, nor has it indicated whether its media contacts would 

write about the requested information. Moreover, even assuming 

COA’s media contacts would publish articles or reports involving the 
32

information, this is still not enough; COA “cannot simply borrow 

[its media contacts’] credentials for purposes of proving its own 

entitlement to a “representative of the news media” fee limitation.” 

Hall v. CIA, 2005 U.S. Dist. LEXIS 6638, *22 n.11. Thus, even 

assuming Plaintiff’s website was functioning and its list of media 

contacts was in the administrative record, Plaintiff’s website and 

media contacts would not have been sufficient to satisfy this 

element. 

Second, the administrative record does not show that 

Plaintiff’s activities are organized especially around 

dissemination. For a “representative of the news media” fee waiver 

request, the requestor should be identified by its activities rather 

than by its description. EPIC, 241 F. Supp. 2d at 11-12; Nat’l Sec. 

Archive, 880 F.2d at 1385-86. In EPIC, the plaintiff was organized 

around dissemination since it was an educational institution engaged 

in publishing books and contributing to other publications. 241 F. 

Supp. 2d at 1112; see also Nat’l Sec. Archive, 880 F.2d at 1386 

(finding the plaintiff archivist engaged in scholarly research was a 

representative of the news media). In the Judicial Watch, Inc. 

cases, on the other hand, the requestor did not satisfy this element 

because while it had shown it would provide the information to 

reporters, post it on its website, blast press releases, and convey 

the information in its radio and television appearances, the 

requestor ultimately admitted that its activities mainly involved 
33

performing nonprofit government watchdog functions. Judicial Watch, 

Inc., 185 F. Supp. 2d at 59-60; Judicial Watch I, 122 F. Supp. 2d at 

21. As a result, the Courts found the requestor was more like a 

middleman for dissemination to the public rather than a 

representative of the news media. Id. 

Similar to the Judicial Watch, Inc. cases, Plaintiff has 

admitted to this Court that it is an “independent 501(c)(3) public 

interest organization” and that its activities involve “us[ing] 

public advocacy and legal reform strategies to ensure greater 

transparency in government, protect taxpayer interests, and promote 

economic freedom.” Compl. ¶ 5; Ex. 8. Unlike the research 

organizations in EPIC and National Security Archive, Plaintiff 

performs its activities to aid in government accountability and is 

thus more like a middleman for dissemination to the media. Because 

Plaintiff did not demonstrate that it distributes work to an 

audience and is especially organized around doing so, it cannot be 

defined as a representative of the news media. 

 B. EXEMPTION 5 

 The final issue before this Court is whether the FTC properly 

withheld documents responsive to Plaintiff’s second and third FOIA 

requests under Exemption 5.7

 Because plaintiff did not exhaust its 

administrative remedies for this issue with respect to its second 

 

7

 The FTC released in full 100 pages of responsive records in 

response to COA’s first request, claiming no exemptions from 

withholding. Gray Decl. ¶¶ 14-15. 
34

request, the Court cannot address whether documents for Plaintiff’s 

second request were properly withheld. With regard to Plaintiff’s 

third request, the Court finds that the FTC properly withheld the 

memoranda under Exemption 5’s deliberative process privilege and 

Exemption 5’s attorney work-product privilege but improperly 

withheld the screenshots under both privileges. 

 1. FOIA Request #2 (FOIA-2012-00227) 

The FTC argues that this Court cannot review the issue of FTC’s 

withholding of documents for Plaintiff’s second request since 

Plaintiff did not exhaust its administrative remedies. Def.’s Mot. 

Summ. J. at 16; Def.’s Reply at 19-20. Specifically, the FTC 

contends that plaintiff did not appeal the agency’s withholding of 

documents pursuant to Exemption 5 that were responsive to 

plaintiff’s second FOIA request. Def.’s Reply at 20. However, 

Plaintiff claims that its April 4, 2012 letter in which it asked for 

a Vaughn index demonstrates its challenge to the FTC’s withholding 

of documents for its second request. Pl.’s Opp’n at 38 n.19. 

Plaintiff argues that any full appeal of the FTC’s withholding for 

its second request would have been premature because the FTC had not 

yet provided a Vaughn index to satisfy its burden of proving the 

documents’ eligibility for the claimed exemptions. Id.

The Court agrees with the FTC. Requestors must exhaust all 

administrative remedies before seeking judicial review of agency 

actions. Oglesby, 920 F.2d at 62-63; Dettmann v. U.S. Dep’t of 
35

Justice, 802 F.2d 1472, 1476-77 (D.C. Cir. 1986). A requestor who 

does not make any objections to the agency’s actions regarding a 

FOIA request has not exhausted its administrative remedies with 

respect to that agency action. Dettmann, 802 F.2d at 1477 (holding 

that it is possible to exhaust administrative remedies with respect 

to one aspect of a FOIA request but not another). Exhaustion is 

usually required so that the agency has an opportunity to exercise 

its discretion and expertise on the matter and to make a factual 

record to support its decision before a court interferes. Hidalgo 

v. FBI, 344 F.3d 1256, 1258 (D.C. Cir. 2003). 

In this case, Plaintiff did not specifically object to the 

FTC’s withholding of documents responsive to its second request. 

Plaintiff points to its April 4, 2012 letter as proof of its appeal 

but that letter only referred to Plaintiff’s third FOIA request. 

See Compl. Exs. 15-16. Because Plaintiff did not specifically 

appeal the withholding with regard to its second request, the FTC 

did not have a chance to address the exemptions relating to the 

second request before Plaintiff filed this suit. See Compl. Exs. 

15, 16. Consequently, the purposes of exhaustion were not satisfied 

in this case as the FTC has not been able to consider Plaintiff’s 

issue before this Court interferes. 

Furthermore, Plaintiff’s claims that an administrative appeal 

would have been premature because no Vaughn index had yet been 

provided are unavailing. Plaintiff was not entitled to a Vaughn
36

index during the FTC’s administrative appeals process. See Citizens 

for Resp. & Ethics in Wash. v. FEC, 711 F.3d 180, 187 n.5 (D.C. Cir. 

2013). As a result, Plaintiff’s appeal could not have been 

contingent on the provision of a Vaughn index. 

 2. FOIA Request #3 (FOIA-2012-00687) 

The FTC also argues that Plaintiff did not exhaust its 

administrative remedies regarding the agency’s withholding of 

documents responsive to its third request. Def.’s Reply at 17. 

Unlike Plaintiff’s second request, however, the Court finds 

Plaintiff did exhaust its administrative remedies for this request 

by objecting to the FTC’s conclusory withholding of documents for 

its third FOIA request in its April 4, 2012 letter of appeal. See 

Compl. Ex. 15 at 1-4. The purposes of the exhaustion requirement 

have been met since the FTC had an opportunity to address the matter 

when it responded to Plaintiff’s appeal in its May 7, 2012 letter. 

See Compl. Ex. 16, see also Hidalgo, 344 F.3d at 1258. Thus, the 

Court can address whether the FTC properly withheld the documents 

under Exemption 5 for the third request. 

The defendant withheld two categories of documents under 

Exemption 5: (1) two screen shots of COA’s website taken in December 

2011; and (2) three short memoranda, between four and six pages in 

length, prepared by paralegals for agency counsel between September 

and December 2011 regarding COA’s FOIA requests. The agency relies 

on two privileges to justify withholding under Exemption 5: the 
37

deliberative process privilege and the attorney work product 

privileges. See Compl. Ex. 14. The privileges will be addressed in 

turn. 

a. Deliberative Process Privilege 

Exemption 5 allows agencies to withhold “inter-agency or intraagency 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). Exemption 5’s deliberative process privilege 

protects agency documents that are both (1) predecisional and (2) 

deliberative. Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151 (D.C. 

Cir. 2006); Baker & Hoestetler LLP v. U.S. Dep’t of Commerce, 473 

F.3d 312, 321 (D.C. Cir. 2006). To be predecisional, documents must 

precede an identifiable agency decision, and the information must 

have been used in the decision making process. Morley v. CIA, 508 

F.3d 1108, 1127 (D.C. Cir. 2007). Documents are deliberative if 

they reflect the give-and-take of the consultative process. Coastal 

States Gas Corp. v. U.S. Dep’t of Energy, 617 F.2d 854, 866 (D.C. 

Cir. 1980). The analysis is a functional approach and courts must 

determine whether disclosure of the document would “stifle honest 

and frank communication within the agency.” Id. at 866. Documents 

made by a subordinate for a superior, which contain recommendations 

or legal advice based on opinion to aid in making complex decisions, 

are considered deliberative. Id. at 868-869; Brinton v. U.S. Dep't 

of State, 636 F.2d 600, 604 (D.C. Cir. 1980). Even factual material 
38

prepared by staff for a superior can be deliberative when the 

documents likely incorporate staff opinions on which facts are 

important for the superior to make a decision. Mapother v. U.S. 

Dep't of Justice, 3 F.3d 1533, 1538 (D.C. Cir. 1993); Montrose Chem. 

Corp. of California v. Train, 491 F.2d 63, 67-68 (D.C. Cir. 1974). 

It does not appear that Plaintiff challenges the FTC’s 

invocation of the deliberative process privilege in response to 

Plaintiff’s third request. See Opp’n at 43-44. Nevertheless, 

because Plaintiff clearly intended to challenge the withholding 

under Exemption 5, the Court addresses the issue and concludes that 

the FTC properly withheld the memoranda but not the screenshots 

under Exemption 5’s deliberative process privilege. 

The FTC argues that the memoranda were properly withheld under 

the deliberative process privilege because they consist of the 

subordinate employee’s “personal thoughts, opinions and analysis, 

and his predecisional recommendations to his supervisor.” Def.’s 

Mot. Summ. J. at 17; see Def.’s Reply at 23. The Court agrees. The 

memoranda were specifically written with regards to Plaintiff’s FOIA 

requests. Stearns Decl. at ¶¶ 33-34. The memoranda are 

deliberative because they contain legal advice and recommendations 

from a subordinate paralegal to a supervising attorney on how the 

FTC should make a complex decision, Plaintiff’s qualification for 

fee waivers for its FOIA requests. Def.’s Mot. Summ. J. Ex. T; 

Stearns Decl. at ¶ 33-34. Even if the memoranda contain facts, the 
39

affidavits demonstrate that these facts involve the subordinate’s 

opinions since the facts “[reflect] the author’s judgment and 

assessment of the relevant data.” Def.’s Mot. Summ. J. Ex. T. 

To the extent Plaintiff raises a segregability challenge, it is 

unavailing. The Court finds that the FTC sufficiently met its duty 

to detail whether any segregable items could have been disclosed. 

The Stearns declaration, see Stearns Decl. at ¶ 38, and the Vaughn

index, see Def.’s Mot. Summ. J. Ex. T, indicate that no information 

could be segregated because the information was inextricably 

intertwined with the subordinate’s thoughts and personal opinions 

regarding the agency’s response to COA’s FOIA requests. See Mead 

Data Cent., Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 260 

(D.C. Cir. 1977) (requiring an agency to explain if non-exempt 

portions are “inextricably intertwined with exempt portions” and 

thus cannot be disclosed); Edmonds Inst. v. U.S. Dep’t of the 

Interior, 383 F. Supp. 2d 105, 109-10 (D.D.C. 2005) (requiring an 

agency to “explain whether there is any information that can be 

segregated as non-exempt from the rest of the document”). The Court 

therefore finds that, as to the three withheld memoranda, any 

nonexempt portions are so intertwined with exempt portions that no 

portion can be disclosed. 

However, the FTC improperly withheld the screenshots under the 

deliberative process privilege. “Factual material is not protected 

under the deliberative process unless it is ‘inextricably 
40

intertwined’ with the deliberative material.” Judicial Watch, Inc. 

v. U.S. Dep't of Justice, 432 F.3d 366, 372 (D.C. Cir. 2005) (citing 

In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997); Bristol-Myers 

Co. v. FTC, 424 F.2d 935, 939 (D.C. Cir. 1970); Am. Civil Liberties 

Union v. FBI, 429 F. Supp. 2d 179, 190 (D.D.C. 2006). The 

screenshots are factual material because according to the FTC’s 

affidavits, the screenshots are “images, derived from accessing 

COA’s website, that depict the functionality, or the lack thereof, 

of COA’s website.” Suppl. Decl. of Dione Jackson Stearns ¶ 6. 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. Def.’s Mot. Summ. J. Ex. T. Thus, there 

is also no “deliberative” material upon which the screenshots could 

be “inextricably intertwined.” As a result, the screenshots cannot 

be properly withheld under Exemption 5’s deliberative process 

privilege. 

 As a result, the FTC has met its burden to demonstrate that the 

memoranda, but not the screenshots, were properly withheld under the 

deliberative process privilege. 

 
41

 b. Attorney Work-Product Privilege 

Exemption 5 can be construed as exempting documents that are 

normally privileged in the civil discovery context, including 

documents protected by the attorney work-product privilege. NLRB v. 

Sears, Roebuck & Co., 421 U.S. 132, 154 (1985). The work-product 

doctrine protects materials “prepared in anticipation of litigation 

or for trial by or for another party or its representative. . . .” 

Fed. R. Civ. P. 26(b)(3)(A). The privilege is narrow and is 

primarily applied to protect the adversarial process by allaying 

attorneys’ fears that their thoughts and opinions could be exposed 

to their adversaries. Coastal States Gas Corp., 617 F.2d at 864 

(citing Jordan v. U.S. Dep’t of Justice, 591 F.2d 753, 775 (D.C. 

Cir. 1978)). Thus, documents that would not be “routinely” or 

“normally” available to parties during litigation fall under the 

attorney work-product privilege of Exemption 5. Sears, Roebuck & 

Co., 421 U.S. at 148-49. 

In assessing whether the proponent has carried its burden to 

show a document is protected as work-product, the relevant inquiry 

is “whether, in light of the nature of the document and the factual 

situation in the particular case, the document can fairly be said to 

have been prepared . . . because of the prospect of litigation.” 

EEOC v. Lutheran Soc. Servs., 186 F.3d 959, 968 (D.C. Cir. 1999). 

Although the agency need not have a specific claim in mind when 

preparing the documents, there must exist some articulable claim 
42

that is likely to lead to litigation in order to qualify the 

documents as attorney work-product. Coastal States Gas Corp., 617 

F.2d at 865; Schiller v. NLRB, 964 F.2d 1205, 1208 (D.C. Cir. 1992) 

abrogated on other grounds by Milner v. Dep't of Navy, 131 S. Ct. 

1259 (2011); Am. Immigration Council v. Dep’t of Homeland Security, 

905 F. Supp. 2d 206, 221 (D.D.C. 2012) (work product encompasses 

documents prepared for litigation that is “foreseeable,” if not 

necessarily imminent). As another judge on this Court recently 

observed: 

The Circuit has drawn a line between neutral, objective 

analyses of agency regulations and more pointed documents that 

recommend how to proceed further with specific investigations 

or advise the agency of the types of legal challenges likely to 

be mounted against a proposed program, potential defenses 

available to the agency, and the likely outcome. Neutral, 

objective analysis is like an agency manual, fleshing out the 

meaning of the law, and thus is not prepared in anticipation of 

litigation. More pointed advice, however, anticipates 

litigation. 

Am. Immigration Council, 905 F. Supp. 2d at 221-222 (citations and 

quotation marks omitted). 

The FTC argues that the memoranda were properly withheld under 

the attorney work-product privilege because they were prepared by 

the paralegal under the direction of an attorney and in anticipation 

of litigation specifically with Plaintiff, over Plaintiff’s FOIA 

requests and the agency’s responses to those requests. Def.’s Mot. 

Summ. J. at 16-17; see Def.’s Reply at 23-24. Indeed, the final 

withheld memorandum, dated December 16, 2011, was prepared after COA 
43

had explicitly threatened the agency with litigation. See Compl. 

Ex. 9, Letter from COA to FTC dated Dec. 12, 2011 at 3 (“We question 

your purported reliance on Ogelsby, but will be more than happy to 

take that issue up with the District Court should you persist in 

denying our fee waiver.”). 

Because the FTC’s affidavits and Vaughn index consistently 

demonstrate that the documents were prepared in reasonable 

anticipation of litigation with Plaintiff, the FTC has met its 

burden to show that the memoranda fall under Exemption 5’s attorney 

work-product privilege. As a result, there is no need to perform an 

in-camera inspection of the memoranda. See Elec. Privacy Info. 

Center v. U.S. Dep’t of Justice, 584 F. Supp. 2d 65, 83 (D.D.C. 

2008) (finding in-camera review appropriate where agency affidavits 

in support of a claim of exemption were insufficiently detailed);

Mehl v. EPA, 797 F. Supp. 43, 46 (D.D.C. 1992) (deciding to perform 

an in-camera review of the documents in question because a publicly 

available report describing the documents contradicted the agency’s 

affidavits describing the same documents). Moreover, a document 

protected by the work product privilege “is fully protected,” 

thereby requiring no segregability analysis. Judicial Watch, Inc. 

v. DOJ, 432 F.3d at 371.

However, the FTC improperly withheld the screenshots under the 

attorney work-product privilege. It is true that Exemption 5’s 

attorney work-product privilege protects any part of a document 
44

prepared in anticipation of litigation, including the opinions and 

legal theories as well as the facts. Judicial Watch, Inc., 432 F.3d 

at 371; Martin v. Office of Special Counsel, 819 F.2d 1181, 1187 

(D.C. Cir. 1987); Tax Analysts v. IRS, 117 F.3d 607, 620 (D.C. Cir. 

1997). Furthermore, unlike the deliberative process privilege, the 

attorney work-product privilege does not require segregability of 

the facts from the opinions. This practice ensures that the 

attorney’s appraisal of factual evidence is protected. Exxon Corp. 

v. FTC, 476 F. Supp. 713, 722-723 (D.D.C. 1979). Nevertheless, when 

documents are purely factual, Exemption 5’s attorney work-product 

privilege no longer applies. Mervin v. FTC, 591 F.2d 821, 826 (D.C. 

Cir. 1978) (“[T]he government cannot exempt pure statements of fact 

from disclosure by calling them attorney work-product”); Exxon 

Corp., 476 F. Supp. at 722-23. Thus, the same reasoning that 

precluded the screenshots as exempted under the deliberative process 

privilege precludes them as exempted under the attorney work-product 

privilege. As purely factual material that contains no opinions or 

strategic thinking of the paralegal who prepared them, or the 

attorney for whom they were prepared, the screenshots were 

improperly withheld under Exemption 5’s attorney work-product 

privilege. 

Thus, the FTC properly withheld the memoranda under Exemption 

5’s attorney work-product privilege but improperly did so for the 

screenshots. 
45

IV. CONCLUSION 

 For the foregoing reasons, Defendant’s motion for summary 

judgment is GRANTED IN PART AND DENIED IN PART. The motion is 

GRANTED with respect to Plaintiff’s applications for fee waivers, 

and is further GRANTED with respect to the Defendant’s withholding 

of documents responsive to Plaintiff’s second FOIA request, and its 

withholding of memoranda responsive to Plaintiff’s third FOIA 

request. The motion is DENIED with respect to the FTC’s decision to 

withhold screenshots of Plaintiff’s website responsive to its third 

FOIA request. A separate order accompanies this memorandum opinion. 

Signed: Emmet G. Sullivan 

 United States District Judge 

 August 19, 2013