Judge Says FTC Info on Blogger Rules Isn’t Free

(CN) - The Federal Trade Commission need not waive the fees it would charge a watchdog to access information on new rules governing bloggers, a federal judge ruled.

Cause of Action, a nonprofit that advocates for greater government transparency, sent the FTC three requests under the Freedom of Information Act in 2011 and 2012, asking for information regarding the 2009 revisions to the commission's "Guides Concerning the Use of Endorsements and Testimonials in Advertising."

In its requests, the group sought records relating to drafting and revising the guidelines, investigations into conduct that violated the guidelines, and to how the FTC believed the guidelines would affect bloggers and social media users.

The FTC responded with 100 pages of documents, but refused to produce any more unless Cause of Action paid for the cost of production. The agency repeatedly denied the nonprofit a public interest fee waiver, or a "representative of the news media" fee waiver.

Cause of Action challenged the denial in a federal complaint, but U.S. District Judge Emmet Sullivan granted the FTC summary judgment Monday.

Simply put, the group simply failed to demonstrate that the requested information would increase understanding of the public at large, as needed for the public interest fee waiver.

"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," Sullivan said.

Requestors must explain their dissemination plan and give some basis to assure the agency that their plan would convey the information to a wide audience, according to the ruling.

But Cause of Action "did not provide any estimate of the number of people likely to view its website, nor did it demonstrate other ways in which it would disseminate the information itself, without relying on another source," Sullivan wrote. "And although COA [Cause of Action] 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." (Italics in original.)

Cause of Action then made a separate FOIA request for all documents relevant to the FTC's evaluation of fee-waiver requests, and specifically Cause of Action's request.

The agency responded with 79 free pages, but withheld documents drafted by paralegals and screenshots that it took of Cause of Action's website, during its decisional process on the FOIA request.

Exemption 5 allows agencies to withhold predecisional and deliberative documents from the public, but screenshots are not deliberative material, the 45-page judgment said.

Sullivan said the paralegal memos were properly withheld as deliberative documents, but the screenshots are only factual material.

"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," the 45-page opinion states. "When he took the screenshots, the paralegal was simply capturing images of plaintiff's website at the direction of his supervising attorney. 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."

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