Block & Leviton LLP v. Federal Trade Commission

Filing 35

Judge Patti B. Saris: MEMORANDUM AND ORDER entered re 21 MOTION for Summary Judgment filed by Facebook, Inc., 19 MOTION for Summary Judgment filed by Federal Trade Commission. The Court ALLOWS IN PART Defenda nt's motion for summary judgment (Docket No. 19) and Defendant-Intervenor's motion for summary judgment (Docket No. 21) as they relate to redaction of names and personal information of employees in the settlement documents other than Mr. Zu ckerberg and DENIES IN PART Defendant's motion for summary judgment (Docket No. 19) and Defendant-Intervenor's motion for summary judgment (Docket No. 21) as they relate to (1) redaction of Mr. Zuckerberg's name and (2) document s related to settlement negotiations withheld on the basis of Exemption 4. Defendant is ordered to produce the documents related to settlement negotiations prepared by the FTC and sent to Facebook unless they contain "commercial" informatio n consistent with the meaning of that term as discussed in this opinion, and Facebook is the source of that information. See Gulf & W. Indus., 615 F.2d at 52930. Defendant is ordered to produce the documents related to settlement negotiations prepared by Facebook and sent to the FTC unless they contain "commercial" information consistent with the meaning of that term as discussed in this opinion. Within 30 days, the FTC shall submit a Vaughn index that provides detailed information as to why any withheld document contains commercial information for which Facebook is the source. The Court reserves the right to conduct an in camera review to determine the applicability of Exemption 4.SO ORDERED. (Baker, Casey)

Case 1:19-cv-12539-PBS Document 35 Filed 10/15/20 Page 1 of 22

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
___________________________________
)
BLOCK & LEVITON LLP,
)
)
Plaintiff,
)
)
Civil Action
v.
)
No. 19-12539-PBS
)
FEDERAL TRADE COMMISSION
)
)
Defendant,
)
)
and
)
)
FACEBOOK, INC.,
)
)
Defendant-Intervenor.
)
______________________________
)
MEMORANDUM AND ORDER
October 15, 2020
Saris, D.J.
INTRODUCTION
Plaintiff Block & Leviton brings this action challenging
the defendant Federal Trade Commission’s (“FTC”) denial of its
request for documents related to the 2019 settlement with
Defendant-Intervenor Facebook, Inc. (“Facebook”). The FTC and
Facebook have moved for summary judgment, arguing that the
withheld documents are exempt from disclosure under the Freedom
of Information Act (“FOIA”) Exemptions 3, 4, 6, and 7(C).
Exemptions 3 and 4 permit the withholding of information that is
confidential and commercial, while Exemptions 6 and 7(C) permit

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the withholding of information whose release would constitute an
unwarranted invasion of personal privacy.
After hearing, the Court ALLOWS in part and DENIES in part
the FTC’s motion for summary judgment (Docket No. 19); and
ALLOWS in part and DENIES in part Facebook’s motion for summary
judgment (Docket No. 21).
FACTUAL BACKGROUND
The following facts drawn from the record are undisputed.
I.

The 2019 Settlement
In 2012, the social networking company Facebook and the FTC

entered into a consent order regarding the privacy and security
of Facebook users. In 2018, the FTC announced that it was
investigating whether Facebook had violated the 2012 consent
order following reports that Cambridge Analytica, a data
analytics firm, had obtained Facebook users’ data. On July 24,
2019, the FTC and Facebook reached a $5 billion settlement
agreement and filed a stipulated order in the United States
District Court for the District of Columbia.
From 2018 through 2019, the FTC received over sixty FOIA
requests for records relating to Facebook’s compliance with the
2012 order and the 2019 settlement. The FTC FOIA Unit compiled
approximately 3,600 pages of responsive records. After giving
Facebook the opportunity to object to release of these records,
and considering those objections, the FTC determined that

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approximately 3,000 pages should be withheld due to their
“confidential commercial” nature. Dkt. 20-1, Declaration of
Dione Jackson Stearns (“Stearns Decl.”), ¶¶ 20-23. On or about
October 5, 2019, the FTC posted the releasable records on its
website.
II.

The FOIA Request

Plaintiff is a law firm which represents the Employees’
Retirement System of Rhode Island in a related action against
Facebook in Delaware’s Court of Chancery. It seeks settlement
documents to investigate reports that “in negotiating the [2019]
Settlement, Facebook unfairly prioritized the interests of
Facebook’s CEO and controlling stockholder, Mark Zuckerberg,
over the interests of the Company and its public stockholders.”
Dkt. 25 at 7.

On October 30, 2019, Plaintiff submitted a FOIA

request to the FTC seeking the following records:
All communications between the Federal Trade
Commission (“FTC”) and Facebook, Inc. (“Facebook”)
from January 1, 2017 to the present concerning the
conduct described in the complaint in United States of
America v. Facebook, Inc., No. Case No. 19-cv- 2184
(D.D.C.), the related Cambridge Analytica inquiry, and
the July 24, 2019 settlement related thereto,
including but not limited to:
a. Any and all drafts of the settlement agreement sent
to Facebook or sent by Facebook;
b. Documents sufficient to show the monetary amounts
of offers made to Facebook or proposed by Facebook to
settle the FTC complaint; and

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c. Any and all documents concerning the liability of
or remedies directed at Mark Zuckerberg, personally.
Dkt. 1-3.
In a letter dated November 6, 2019, the FTC responded to
Plaintiff’s FOIA request that “these records have been
frequently requested and all releasable records are posted on
our website.” Dkt. 1-4.

No additional records were released.

On November 8, 2019, Plaintiff filed an appeal with the
FTC, stating that “[a]lthough there are some documents
pertaining to Facebook on the FTC website, the documents I
specifically requested are not.” Dkt. 1-5 at 1. Plaintiff
pointed to the prior release of the 2011 draft settlement
documents to question the FTC’s application of FOIA Exemption 4
to the 2019 draft settlement documents. The FTC FOIA Team Lead
confirmed that the requested records were not posted on the
website and that it would not release them.
On December 9, 2019, the FTC denied Plaintiff’s appeal,
concluding that the settlement communications between the FTC
and Facebook were properly withheld under Exemption 4. The FTC
said that the release of the 2011 settlement documents had been
“inadvertent[].” Dkt. 20-1, Stearns Decl. ¶ 29.
III. Response to the Present Action
On December 18, 2019, Plaintiff filed this action against
the FTC, requesting that the Court order the FTC to provide the

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requested documents. Facebook subsequently joined the case as a
defendant-intervenor. The FTC FOIA Unit asked Facebook to
reconsider some of its earlier stated objections and to provide
additional information to support Facebook’s continued
objections to releasing records. Facebook continued to oppose
releasing the 2019 draft settlement documents on the basis that
it “would harm Facebook by allowing competitors to gain insights
into Facebook’s privacy practices without investing the
substantial resources that Facebook has invested in its Privacy
Program, as well as gain insight into, and possibly adopt,
usurp, or otherwise disrupt, Facebook’s commercial priorities
and business operations.” Dkt. 22-1, Declaration of Jessica
Hertz (“Hertz Decl.”), ¶ 16. The FOIA Unit also consulted with
FTC staff who provided additional information regarding the
FTC’s investigation and negotiations with Facebook leading up to
the 2019 settlement.
Between April 15, 2020 and May 14, 2020, the FTC made
multiple productions of responsive records to Plaintiff,
including previously released records with some redactions
revised as well as newly released documents. In total, the FTC
released 368 documents consisting of 678 pages and withheld 201
documents consisting of 2,625 pages. In connection with these
productions, the FTC prepared and provided a Vaughn index which
briefly describes the withheld documents and the applicable FOIA

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exemptions and justifications for withholding. The withheld
documents include communications and draft settlement agreements
between the FTC and Facebook and a March 11, 2019 confidential
report submitted to the FTC by a consultant retained by Facebook
to support Facebook’s settlement negotiations. The FTC submitted
its Vaughn index and the Declaration of Dione Jackson Stearns in
support of its motion for summary judgment. Dkt 20-1, Stearns
Decl. According to this declaration, the documents withheld
under Exemptions 3 and 4 “reveal Facebook’s confidential and
proprietary information about its operations, including its
technology, products, and business structure.” Id. ¶ 36. The FTC
also withheld “the substantive negotiations between the FTC and
Facebook.” Id. ¶ 37.
LEGAL STANDARDS
I.

The FOIA Statutory Scheme
“FOIA cases are typically decided on motions for summary

judgment.”

ACLU v. U.S. Dep’t of Educ., 320 F. Supp. 3d 270,

276 (D. Mass. 2018); see, e.g., Stalcup v. CIA, 768 F.3d 65, 69
(1st Cir. 2014). A movant is entitled to summary judgment when
the evidence shows that “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56. In the FOIA context, the “federal
agency bears the burden of proving that it has complied with its
obligations under FOIA. . . . [S]ummary judgment for an agency

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is appropriate only if the agency proves that it has fully
discharged its FOIA obligations.” Ayuda, Inc. v. Fed. Trade
Comm’n, 70 F. Supp. 3d 247, 259 (D.D.C. 2014) (citations and
internal quotation marks omitted).
FOIA requires federal agencies to release government
records to the public upon request, subject to nine listed
exemptions. 5 U.S.C. § 552. If an agency refuses to provide the
requested records, the requesting party may file suit in federal
court and obtain an injunction “order[ing] the production of any
agency records improperly withheld.” 5 U.S.C. § 552(a)(4)(B).
For a district court to have jurisdiction to issue such an
injunction, the requesting party must show that the agency has
“(1) improperly (2) withheld (3) agency records.” U.S. Dep’t of
Justice v. Tax Analysts, 492 U.S. 136, 142 (1989) (citation and
internal quotation marks omitted).
The policy underlying FOIA is “‘one of broad disclosure,
and the government must supply any information requested by any
individual unless it determines that a specific exemption,
narrowly construed, applies.’” N.H. Right to Life v. U.S. Dep’t
of Health & Human Servs., 778 F.3d 43, 49 (1st Cir. 2015)
(quoting Church of Scientology Int’l v. U.S. Dep’t of Justice,
30 F.3d 224, 228 (1st Cir. 1994)). Generally, “any doubts”
regarding the application of an exemption should be “resolved in
favor of disclosure.” Carpenter v. U.S. Dep’t of Justice, 470

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F.3d 434, 438 (1st Cir. 2006). “The government bears the burden
of proving that withheld materials fall within one of the
statutory exemptions, and district courts are required to make
de novo determinations as to the validity of the asserted
exemptions.” Id. (citations omitted).
“Typically, the agency demonstrates the applicability of a
FOIA exemption by providing affidavits regarding the claimed
exemptions. If an agency’s affidavit describes the
justifications for withholding the information with specific
detail, demonstrates that the information withheld logically
falls within the claimed exemption, and is not contradicted by
contrary evidence in the record or by evidence of the agency’s
bad faith, then summary judgment is warranted on the basis of
the affidavit alone.” Shapiro v. United States Dep’t of Justice,
893 F.3d 796, 799 (D.C. Cir. 2018) (citations and internal
quotation marks omitted). The First Circuit has held that where
an affidavit demonstrates by “sufficient description [that] the
contested document logically falls into the category of the
exemption indicated,” the court “need not go further to test the
expertise of the agency, or to question its veracity when
nothing appears to raise the issue of good faith.” Bell v.
United States, 563 F.2d 484, 487 (1st Cir. 1977).
To establish the applicability of a FOIA exemption,
agencies often submit a Vaughn index — a “comprehensive list of

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all documents that the government wants to shield from
disclosure in . . . [FOIA] litigation, each document being
accompanied by a statement of justification for nondisclosure.”
N.H. Right to Life, 778 F.3d at 48 n.3 (citation and internal
quotation marks omitted); see Vaughn v. Rosen, 484 F.2d 820
(D.C. Cir. 1973). A Vaughn index must “afford[] the FOIA
requester a meaningful opportunity to contest, and the district
court an adequate foundation to review, the soundness of the
withholding.” Church of Scientology Int’l, 30 F.3d at 231
(citation and internal quotation marks omitted). If a court
finds a Vaughn index inadequate “and no other support is
provided,” the court “could choose to permit discovery limited
to specified documents, it could conduct an in camera review of
selected documents, it could order release of some documents, or
it could direct a combination of these procedures.” Id. at 240
(footnote omitted). A court may also deny summary judgment if it
finds a Vaughn index inadequate to demonstrate proper invocation
of FOIA exemptions. COMPTEL v. Fed. Commc’ns Comm’n, 910 F.
Supp. 2d 100, 114 (D.D.C. 2012); see also Pub. Emps. for
Environ. Resp. v. Office of Sci. and Tech. Policy, 825 F. Supp.
2d 104, 105 (D.D.C. 2011) (finding “summary judgment is
inappropriate . . . because [the agency]’s Vaughn index is
legally insufficient for the Court to determine whether the
redactions and withholdings were proper”).

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II.

FOIA Exemptions

A. Exemptions 3 and 4 – Confidential Commercial Information
Relying on Exemptions 3 and 4, the FTC withheld “(1)
Facebook’s responses to the FTC’s demands for information in its
investigation of Facebook’s 2012 order violations, and (2)
documents revealing the substantive settlement negotiations
between the FTC and Facebook, principally concerning the
contents of a proposed federal court complaint, a stipulated
federal court order, an administrative order, and associated
documents.” Dkt. 20 at 12. The FTC explained:
Disclosure of the specific areas of negotiation
would reveal the terms that Facebook valued from
a commercial standpoint. For example, information
regarding negotiations of the civil penalty
sought by the Commission could directly affect
Facebook financially; if released, this
information could embolden other global
regulators and plaintiffs in civil suits with
which Facebook is currently engaged. Public
reporting of the critical points of contention
between Facebook and the FTC is also likely to
affect public perception of Facebook and impact
the value of the Company.
Id. at 5–6 (citing Stearns Decl. ¶¶ 37, 40). Narrowing its
initial request, Plaintiff challenges the application of
Exemption 4 only as to the settlement documents. The parties
agree that the settlement documents satisfy the “confidential”
prong of the Exemption 4 analysis, but they dispute whether the
information is “commercial” and “obtained from a person.”

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Subject to certain requirements, Exemption 3 permits an
agency to withhold information that is “specifically exempted
from disclosure by statute.” 5 U.S.C. § 552(b)(3). This
exemption applies to Section 6(f) of the Federal Trade
Commission Act, which prohibits the FTC from “mak[ing] public
any trade secret or any commercial or financial information
which is obtained from any person and which is privileged or
confidential.” 15 U.S.C. § 46(f). As Section 6(f) largely
mirrors Exemption 4, these provisions are “coextensive,” and
Exemption 4’s legal standards control. Center for Digital
Democracy v. FTC, 189 F. Supp. 3d 151, 159 (D.D.C. 2016). To
invoke Exemption 4, “the agency must establish that the withheld
records are (1) commercial or financial, (2) obtained from a
person, and (3) privileged or confidential.” Jordan v. U.S.
Dep’t of Labor, 308 F. Supp. 3d 24, 42 (D.D.C. 2018) (citations
and internal quotation marks omitted).
1. Commercial
Exemption 4 “shields from mandatory disclosure ‘commercial
or financial information obtained from a person and privileged
or confidential.’” Food Marketing Institute vs. Argus Leader
Media, 139 S.Ct. 2356, 2363 (2019)(citing 5 U.S.C. § 552(b)(4))
While FOIA does not define “commercial,” the Supreme Court has
recently reaffirmed that courts should determine what the term’s
“ordinary, contemporary, common meaning” was when Congress

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enacted FOIA in 1966. Id. (quoting Perrin v. United States, 444
U.S. 37, 42 (1979); see N.H. Right to Life, 778 F.3d at 49 (“The
FOIA does not define the term ‘commercial,’ so courts have given
the term its ordinary meaning.” (citations omitted)). At that
time, “commercial” meant “of, in, or relating to commerce.”
Webster's Third International Dictionary 456 (1961).
Case law is consistent with that definition. See National
Ass’n of Homebuilders v. Norton, 309 F.3d 26, 38 (D.C. Cir.
2006) (“Information is commercial under [Exemption 4] if, in and
of itself, it serves a commercial function or is of a commercial
nature.” (cleaned up)); see also Pub. Citizen Health Research
Grp. v. FDA, 704 F.2d 1280, 1290 (D.C. Cir. 1983). Courts have
found a “broad” range of information commercial. See, e.g., N.H.
Right to Life, 778 F.3d at 50 (nonprofit’s manual, fees, and
collections policies); Jordan v. U.S. Dep’t of Labor, 273 F.
Supp. 3d 214, 230 (D.D.C. 2017) (citing Baker & Hostetler LLP v.
U.S. Dep’t of Com., 473 F.3d 312, 319 (D.C. Cir. 2006))(“status
of operations regarding a business contract”); Pub. Citizen
Health Research Grp., 704 F.2d at 1290 (health and safety data
bearing on “marketing approval for . . . products”); but see
British Airports Auth. v. U. S. Dep’t of State, 530 F. Supp. 46,
49 (D.D.C. 1981) (“information relating to the strategy of
airline companies in negotiating with [British Airports
Authority]” not commercial).

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To assert, however, that “a company has a ‘commercial
interest’ in all records that relate to every aspect of the
company’s trade or business” would be “plainly incorrect.” Pub.
Citizen v. U.S. Dep’t of Health and Human Servs., 975 F. Supp.
2d 81, 100 (D.D.C. 2013). Consistent with the narrow
construction given to FOIA exemptions, courts have cautioned
that not all information submitted to the government by a
commercial entity qualifies for protection under Exemption 4.
Pub. Citizen Health Research Grp., 704 F.2d at 1290. See also
British Airports Auth., 530 F. Supp. at 49 (“Not every type of
information provided to the government by an entity engaged in
commerce falls within (b) (4).”).
Facebook and the FTC argue that the withheld settlement
documents are “commercial” because they reveal Facebook’s
commercial priorities and business strategies. Facebook
submitted an affidavit by Jessica Hertz, a Director and
Associate General Counsel, who generally stated that the
settlement drafts reveal Facebook’s “commercial priorities and
business practices and strategies,” as well as its “Board
operations, governance structure, and business operations, and
substantial information about its Privacy Program.” Dkt. 22-1,
Hertz Decl. ¶ 10. The FTC took a similarly capacious approach,
going so far as to include any points of contention that are
“likely to affect public perception of Facebook and impact the

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value of the Company.” Dkt. 20 at 6 (citing Stearns Decl. ¶¶ 37,
40). Yet the FTC fails to explain document-by-document why each
draft contains “commercial” information as commonly understood,
which does not necessarily include all documents which hurt a
company’s reputation or the reputation of an executive. The
Vaughn index appears to incorporate Facebook’s objections wholehog without any explanation to the Court so it can independently
consider the applicability of Exemptions 3 and 4. As the FTC
acknowledged, the agency must give “reasonably detailed
explanations why any withheld documents fall within an
exemption.” New York Times Co. v. U.S. Dep’t of Justice, 756
F.3d 100, 112 (2d Cir. 2014) (citation omitted).
For example, the FTC’s Vaughn index describes “Document No.
9” as “4/12/2019 email with subject line ‘Call at 11?’ From:
Moore, Robin (FTC) To: Royall, M. Sean (FB Counsel),” and states
that it was withheld in part under “5 U.S.C. § (b)(4); 5 U.S.C.
§ (b)(3), 15 U.S.C. § 46(f)” with the following justification:
Pursuant to 5 U.S.C. §§ (b)(3) and (b)(4) of the FOIA,
as well as 15 U.S.C. § 46(f), and based upon
Facebook, Inc.’s objection, the FTC withholds the
commercial content of the email. This information is
commercial information obtained from Facebook that is
confidential and not ordinarily released to the
public. In addition to protecting Facebook, Inc.’s
commercial interests, the FTC seeks to ensure the
continued reliability and availability of the
information it receives in the course of its
settlement negotiations, which promotes the
effective and efficient resolution of FTC law

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enforcement actions. All non-exempt information has
been segregated and released.
Dkt. 20-1 at 33-34. This description does not provide sufficient
detail for the Court to independently determine whether the
withheld information “reveal[s] basic commercial operations,”
“relate[s] to the income-producing aspects of [Facebook’s]
business,” or bears upon Facebook’s “commercial fortunes.” See
Baker & Hostetler LLP, 473 F.3d at 319 (citations omitted). The
FTC provides similarly inadequate descriptions and nearly
identical justifications for every document withheld or withheld
in part under Exemption 4.
Because neither the FTC’s Vaughn index nor the Stearns
Declaration provides “an adequate foundation” for the Court to
review whether each withheld document contains commercial
information, summary judgment for Defendants is inappropriate.
See Church of Scientology Int’l, 30 F.3d at 231; see also Pub.
Citizen, 975 F. Supp. 2d at 104 (denying summary judgment where,
“[w]ithout more information about the commercial nature of the
information contained in the disclosure log summaries, the Court
has insufficient information to evaluate whether these documents
are being properly withheld”). The Court orders the FTC to
provide a more detailed explanation in its Vaughn index. The
Court reserves the right to examine the documents in camera to
determine whether they contain true commercial information.

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2. Obtained From a Person
FOIA defines a “person” as an “individual, partnership,
corporation, association, or public or private association other
than an agency.” 5 U.S.C. § 551(2). Commercial information
generated by and obtained from an agency thus does not
necessarily qualify for Exemption 4. See Bd. of Trade of City of
Chicago v. Commodity Futures Trading Comm’n, 627 F.2d 392, 404
(D.C. Cir. 1980), abrogated on other grounds, U.S. Dep’t of
State v. Washington Post Co., 456 U.S. 595, 598 (1982)
(restricting the application of FOIA Exemption 4 “to data which
have not been generated within the Government”); see also
Crooker v. U.S. Parole Comm'n, 730 F.2d 1, 9 (1st Cir.), cert.
granted, vacated on other grounds, 469 U.S. 926 (1984) (stating
“information obtained from inside the government not exempt”
under Exemption 4 (citation omitted)); cf. Madison Cty., N.Y. v.
U.S. Dep’t of Justice, 641 F.2d 1036, 1040 (1st Cir.
1981)(declining to create an exemption for government settlement
documents but stating, “We are sympathetic to the logic and
force of this policy plea. . . . Knowledge that written
settlement communications will be available to anyone . . . will
to some extent impede this means.” (internal citation omitted)).
However, where agency-generated documents contain
commercial information originally “obtained from a
person outside the government” or “information supplied by [an

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external person] could be extrapolated,” such information falls
within Exemption 4. Gulf & W. Indus., Inc. v. United States, 615
F.2d 527, 529–30 (D.C. Cir. 1979).
Settlement documents sent from Facebook to the FTC plainly
satisfy the “from a person” prong. See 5 U.S.C. § 551(2).
Settlement documents originating from the FTC and sent to
Facebook, however, may qualify as “from a person” only where
Facebook is the source of commercial information contained
within them. See Gulf & W. Indus., 615 F.2d at 529–30.
Facebook’s argument that readers could reverse-engineer
Facebook’s commercial priorities by tracking changes in the
settlement terms from draft to draft likely stretches Exemption
4 too far. See Washington Research Project, Inc. v. Dep’t of
Health, Ed. & Welfare, 504 F.2d 238, 245 (D.C. Cir. 1974) (FOIA
exemptions are meant to be “construe[d] narrowly.”). The items
redacted in the government report in Gulf & Western Industries
were “actual costs for units produced,” “actual scrap rates,”
“break-even point calculations” and “actual cost data.” 615 F.2d
at 530. Where similar specific commercial information from
Facebook is included in settlement proposals, redaction may be
appropriate. But to the extent the FTC’s proposals simply
capture changes that are based on the content of negotiations
with Facebook, those documents do not qualify as “from a
person.” Because the Vaughn index does not provide sufficient

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detail for the Court to determine which documents originated by
the FTC may contain sufficiently specific or quoted information
from Facebook to meet this standard, summary judgment is denied
as to all of the documents at issue withheld under Exemption 4.
B. Exemptions 6 and 7(C) – Personal Privacy
The FTC applied Exemptions 6 and 7(C) to redact “portions
of records containing third party names, of Facebook employees
who are not executives (i.e., Director level and below) . . .
email addresses and phone numbers of Facebook employees . . .
[, and] phone numbers and information identifying the conference
rooms used for meetings and calls.” Dkt. 20-1, Stearns Decl.
¶ 46. Plaintiff does not oppose limited redactions for those
purposes.
The FTC also withheld names and identifying information of
“individuals of investigative interest” because “disclosure of
that information could cause harm to personal reputation.” Id.
Plaintiff argues that to the extent the FTC redacted the name of
Facebook’s Chief Executive Officer, Mark Zuckerberg, as an
individual of investigative interest, such redaction was
improper because the FTC’s investigation of Zuckerberg is public
knowledge and was officially acknowledged in the dissenting
statements of FTC Commissioners Rohit Chopra and Rebecca Kelly
Slaughter. The FTC responds that the Commissioners’ dissenting

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opinions do not “disclose details of the FTC’s investigative
activities.” Dkt. 29 at 6; see also Dkt. 30 at 16–17.
FOIA Exemption 6 exempts from disclosure information about
individuals in “personnel and medical files and similar files”
when disclosure “would constitute a clearly unwarranted invasion
of personal privacy.” 5 U.S.C. § 552(b)(6). Exemption 7(C)
exempts “records or information compiled for law enforcement
purposes, but only to the extent that the production of such law
enforcement records or information . . . could reasonably be
expected to constitute an unwarranted invasion of personal
privacy.” 5 U.S.C. § 552(b)(7)(C). Because Exemption 7(C)
“protects similar interests and shields a broader range of
information” than Exemption 6, courts often address only
Exemption 7. Moffat v. U.S. Dep’t of Justice, 716 F.3d 244, 250
n.4 (1st Cir. 2013) (citing Roth v. U.S. Dep’t of Justice, 642
F.3d 1161, 1173 (D.C. Cir. 2011)). Exemption 7 “guards the
privacy interests of a broad range of individuals, including
government agents, personnel, confidential sources, and
investigatory targets.” Id. at 251.
Exemption 7 is tempered by the “official acknowledgment”
doctrine. See ACLU v. C.I.A., 710 F.3d 422, 426 (D.C. Cir.
2013)(“[W]hen an agency has officially acknowledged otherwise
exempt information through prior disclosure, the agency has
waived its right to claim an exemption with respect to that

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information.”). Information is “officially acknowledged” if “(1)
the information requested [is] as specific as the information
previously released; (2) the information requested . . .
match[es] the information previously disclosed; and (3) the
information requested . . . already [has] been made public
through an official and documented disclosure.” Cause of Action
v. Treasury Inspector Gen. for Tax Admin., 70 F. Supp. 3d 45,
56–57 (D.D.C. 2014) (quoting ACLU v. U.S. Dep’t of Def., 628
F.3d 612, 620–21 (D.C. Cir. 2011)). A plaintiff invoking the
official acknowledgment doctrine “bear[s] the initial burden of
pointing to specific information in the public domain that
appears to duplicate that being withheld.” ACLU, 710 F.3d at 427
(citation and internal quotation marks omitted).
This Court finds that the dissenting statements of
Commissioner Chopra and Commissioner Slaughter constitute
official acknowledgement that the FTC was investigating Mr.
Zuckerberg. Commissioner Chopra stated in his dissent, “We
should have continued the investigation to obtain more data and
evidence on what Facebook and its executives knew and how they
profited. If Facebook failed to cooperate, the Commission had
enough evidence to take Facebook and Zuckerberg to trial.” Dkt.
26-2 at 22. Similarly, Commissioner Slaughter stated in her
dissent, “The evidence the Commission amassed in its
investigation more than justified initiating litigation against

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Facebook and Mr. Zuckerberg alleging violations of the
Commission’s order.” Dkt. 26-1 at 2. The official acknowledgment
doctrine thus precludes the FTC from redacting Mr. Zuckerberg’s
name from the settlement documents under Exemption 7(C).
ORDER
For the foregoing reasons, the Court ALLOWS IN PART
Defendant’s motion for summary judgment (Docket No. 19) and
Defendant-Intervenor’s motion for summary judgment (Docket No.
21) as they relate to redaction of names and personal
information of employees in the settlement documents other than
Mr. Zuckerberg and DENIES IN PART Defendant’s motion for summary
judgment (Docket No. 19) and Defendant-Intervenor’s motion for
summary judgment (Docket No. 21) as they relate to (1) redaction
of Mr. Zuckerberg’s name and (2) documents related to settlement
negotiations withheld on the basis of Exemption 4. Defendant is
ordered to produce the documents related to settlement
negotiations prepared by the FTC and sent to Facebook unless
they contain “commercial” information consistent with the
meaning of that term as discussed in this opinion, and Facebook
is the source of that information. See Gulf & W. Indus., 615
F.2d at 529–30. Defendant is ordered to produce the documents
related to settlement negotiations prepared by Facebook and sent
to the FTC unless they contain “commercial” information
consistent with the meaning of that term as discussed in this

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opinion. Within 30 days, the FTC shall submit a Vaughn index
that provides detailed information as to why any withheld
document contains commercial information for which Facebook is
the source. The Court reserves the right to conduct an in camera
review to determine the applicability of Exemption 4.

SO ORDERED.
/s/ PATTI B. SARIS
Hon. Patti B. Saris
United States District Judge

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