N.Y. Times Co. v. Fed. Commc'ns Comm'n

• Decision Date: 30 April 2020
• Docket Number: 18 Civ. 8607 (LGS)
• Citation: 457 F.Supp.3d 266
• Parties: The NEW YORK TIMES COMPANY, et al., Plaintiffs, v. The FEDERAL COMMUNICATIONS COMMISSION, Defendant.
• Court: U.S. District Court — Southern District of New York

457 F.Supp.3d 266

The NEW YORK TIMES COMPANY, et al., Plaintiffs,

v.The FEDERAL COMMUNICATIONS COMMISSION, Defendant.

18 Civ. 8607 (LGS)

United States District Court, S.D. New York.

Signed April 30, 2020

Al-Amyn Shiraz Sumar, Alexandra Perloff-Giles, David Edward McCraw, The New York Times Company, John Clopper, Clopper Law PC, New York, NY, for Plaintiffs.

Tomoko Onozawa, U.S. Attorney's Office, New York, NY, for Defendant.

OPINION AND ORDER

LORNA G. SCHOFIELD, District Judge:

Plaintiffs, The New York Times Company, Nicholas Confessore and Gabriel Dance ("NYT"), bring this action against Defendant, the Federal Communications Commission ("FCC"), seeking access to information in the FCC's "API proxy server log" pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Plaintiffs also seek the costs of this proceeding, including reasonable attorneys' fees, under FOIA, 5 U.S.C. § 552(a)(4)(E). The parties cross-move for summary judgment. For the following reasons, Plaintiffs' motion for summary judgment is granted, and Defendant's motion is denied. Plaintiffs' motion for reasonable attorneys' fees is denied without prejudice to renew.

I. BACKGROUND

The facts in this background section are taken from the parties' submissions and are undisputed. In May 2017, the FCC adopted a notice of proposed rulemaking with FCC Docket No. 17-108 titled "Restoring Internet Freedom." The proposal sought to repeal rules enacted in 2015 governing internet service providers, popularly described as the rules that gave legal force to "net neutrality," the principle that internet service providers must provide equal access to all web content regardless of the source. The proposal received substantial public attention. The public was invited to submit comments to the FCC in the spring and summer of 2017 through the Commission's Electronic Comment Filing System ("ECFS"), and over twenty million comments were submitted. The FCC enacted the proposed changes in December 2017, in effect repealing the so-called net neutrality rules. Since then, the press, academic researchers and governmental entities have investigated whether the public comment process was tainted by fraud, such as comments being submitted by automated bots and fraudulent email accounts. The existing research indicates that such concerns are not speculative or hypothetical. See Paul Hitlin and Skye Toor, Public Comments to the Federal Communications Commission About Net Neutrality Contain Many Inaccuracies and Duplicates , PEW RESEARCH CENTER (Nov. 29, 2017), https://pewrsr.ch/2AiqeFR (reporting that approximately 57% of the comments submitted included false or misleading personal information, that on nine different occasions, more than 75,000 comments were submitted at the very same second and that on at least five occasions, more than 24,000 exactly identical net neutrality comments were submitted to the FCC in a single second).

In June 2017, The New York Times submitted a FOIA request to the FCC for server logs related to public comments posted to FCC Docket No. 17-108 from April 2017 to June 2017. The request sought information that is automatically generated and transmitted to ECFS when comments are submitted. The New York Times and the FCC conferred for over thirteen months about the scope of the FOIA request. In August 2018, The New York Times submitted an amended request that sought only two types of data associated with comments submitted to ECFS regarding rulemaking No. 17-108 between April 26, 2017, and June 7, 2017: (1) "originating Internal Protocol (‘IP’) addresses" and related timestamps; and (2) "User-Agent headers" and related timestamps. The FCC has a single "API proxy server log" that contains this information, as well as other information. The New York Times has now agreed to narrow its request to entries in this log reflecting requests to submit comments (excluding requests to download comments), and as to those entries seeks only timestamps, originating IP addresses and User-Agent headers.

An IP address is a unique string of numbers that identifies each device on the internet. Every transaction over the internet transmits to the recipient the IP address of the transmitting computer. An originating IP address is defined in this case as the first IP address in the series of transmissions that occur when a comment is submitted to ECFS. In other words, this is the IP address for the device from which the ECFS comment was sent. Most consumer internet users get IP addresses for their devices on a dynamic basis from internet service providers. Dynamic IP addresses often change, and the FCC admits that "most users with dynamic IP addresses who submitted comments to ECFS in 2017 will likely have different IP addresses today."

The User-Agent headers contain information about a commenter's device, such as the operating system, operating system version, browser version, browser platform and language settings. This device-specific information can help distinguish between different users who share the same IP address.

When a comment is submitted to ECFS, the originating IP address and the User-Agent header data are automatically and necessarily transmitted to ECFS as well. The automatic transmission of this information is in contrast to the information that commenters must affirmatively include when filing a comment on ECFS -- the commenter's name and postal address. Prior to filing a submission, the ECFS webpage displays a notice that states, "You are filing a document into an official FCC proceeding. All information submitted, including names and addresses, will be publicly available via the web."

The New York Times received no response to the August 2018 request. Plaintiffs accordingly filed this action on September 20, 2018. Subsequently, the FCC issued a denial of The New York Times' administrative appeal. The agency stated that the requested information contained material that is exempt from disclosure pursuant to FOIA Exemptions 6 and 7(E), and that any non-exempt material could not be reasonably segregated and released. On this motion, the agency relies on FOIA Exemption 6.

II. STANDARD

"Summary judgment is the preferred procedural vehicle for resolving FOIA disputes." Nat'l Res. Def. Council v. U.S. Envtl. Prot. Agency , 403 F. Supp. 3d 270, 277 (S.D.N.Y. 2019) ; accord White Coat Waste Project v. U.S. Department of Veterans Affairs , 404 F. Supp. 3d 87, 95 (D.D.C. 2019) ("The ‘vast majority’ of FOIA cases can be resolved on summary judgment.") (quoting Brayton v. Office of the U.S. Trade Representative , 641 F.3d 521, 527 (D.C. Cir. 2011) ). When parties cross-move for summary judgment, the Court analyzes the motions separately, "in each case construing the evidence in the light most favorable to the non-moving party." Wandering Dago, Inc. v. Destito , 879 F.3d 20, 30 (2d Cir. 2018). Summary judgment is appropriate where "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(a). "A genuine issue of material fact exists if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ " Nick's Garage, Inc. v. Progressive Cas. Ins. Co. , 875 F.3d 107, 113 (2d Cir. 2017) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ).

"[A] district court must review de novo an agency's determination to withhold information requested under FOIA." Florez v. C.I.A. , 829 F.3d 178, 182 (2d Cir. 2016) ; accord Knight First Amendment Inst. at Columbia Univ. v. U.S. Dep't of Homeland Sec. , 407 F. Supp. 3d 334, 348 (S.D.N.Y. 2019). "An agency withholding documents responsive to a FOIA request bears the burden of proving the applicability of claimed exemptions." Am. Civil Liberties Union v. U.S. Dep't of Justice , 681 F.3d 61, 69 (2d Cir. 2012). An agency may carry its burden by submitting affidavits or declarations, which must be "accorded a presumption of good faith." Florez , 829 F.3d at 182. "FOIA exemptions are to be construed narrowly," and there is a "strong presumption in favor of disclosure." Assoc. Press v. U.S. Dep't of Def. , 554 F.3d 274, 283 (2d Cir. 2009).

III. DISCUSSION

The FCC opposes disclosure of the requested material in the API proxy server log for two reasons. First, they contend that the requested information -- originating IP addresses and User-Agent headers -- is exempt from disclosure pursuant to FOIA Exemption 6. Second, they contend that because producing the requested information is unreasonably burdensome and unreliable, FOIA does not require compliance.¹

A. Exemption 6

FOIA requires federal agencies to make records available to the public unless a statutory exemption applies. See 5 U.S.C. § 552(a)(3)(A), (b)(1)-(9). FOIA Exemption 6 states that an agency may withhold "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). The Supreme Court has "regularly referred to [Exemption 6] as involving an ‘individual's right to privacy.’ " FCC v. AT&T Inc. , 562 U.S. 397, 408, 131 S.Ct. 1177, 179 L.Ed.2d 132 (2011) (quoting Dep't of State v. Ray , 502 U.S. 164, 175, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991) ).

Courts "employ a two-prong inquiry in deciding whether the government has correctly withheld records under Exemption 6." Cook v. Nat'l Archives & Records Admin. , 758 F.3d 168, 174 (2d Cir. 2014). The first prong is "whether the records in question are ‘personnel,’ ‘medical,’ or ‘similar’ files." Id. "[T]he phrase ‘similar files’ [is meant] to have a broad, rather than a narrow, meaning." U.S. Dep't of State v. Washington Post Co. , 456 U.S. 595, 600, 102 S.Ct. 1957, 72 L.Ed.2d 358 (1982). "[T]he Second Circuit considers ‘a record ... a "similar file" if it contains personal information identifiable to a particular person.’ " Osen LLC v. United States Central Command , 375 F. Supp. 3d 409, 423 (S...