The New York Times Company v. Federal Communications Commission
- Lorna Schofield
- 1:18-cv-08607
- U.S. District Court · Southern District of New York
- 17
In The New York Times Company v. Federal Communications Commission, Judge Schofield ordered FCC disclosure and denied its summary-judgment motion, while deferring fees.
The New York Times Company, Nicholas Confessore, and Gabriel Dance obtained a ruling requiring disclosure of the requested FCC server-log information; the FCC’s withholding position was rejected, while the plaintiffs’ fee request was denied without prejudice to renew.
What happened
The New York Times Company, Nicholas Confessore, and Gabriel Dance sought records from the Federal Communications Commission under the Freedom of Information Act, including internet addresses and device information linked to comments on the FCC’s net-neutrality rulemaking. The FCC withheld the information, citing privacy concerns and other objections.
The court ruled that the requested information was covered by the law’s privacy exemption but that disclosure would serve an important public interest: helping determine whether fraud affected the public-comment process. The court also rejected the FCC’s arguments that extracting the information would be too burdensome or unreliable.
Judge Schofield granted the plaintiffs’ motion for summary judgment and denied the FCC’s motion. She denied the plaintiffs’ request for attorneys’ fees and costs without prejudice to renew.
The detailed version
- The New York Times Company v. Federal Communications Commission · No. 1:18-cv-08607
- Lorna Schofield
- Apr. 30, 2020
Background
The New York Times Company, Nicholas Confessore, and Gabriel Dance requested records from the Federal Communications Commission under the Freedom of Information Act (FOIA). The request concerned the FCC’s electronic comment system for rulemaking docket No. 17-108, titled “Restoring Internet Freedom,” which involved repealing rules commonly called net-neutrality rules.
The plaintiffs ultimately narrowed their request to entries showing requests to submit comments between April 26, 2017, and June 7, 2017. They sought timestamps, originating Internet Protocol (IP) addresses, and User-Agent headers. The opinion explains that an IP address identifies a device on the internet, while User-Agent information can identify characteristics of the device, such as its operating system and browser. The FCC maintained this information in an API proxy server log.
After the FCC did not respond to the amended request, the plaintiffs filed suit. The FCC later denied the administrative appeal, relying on FOIA Exemption 6, which permits withholding certain records when disclosure would be a clearly unwarranted invasion of personal privacy. The parties filed cross-motions for summary judgment, meaning each asked the court to decide the case without a trial because there was no genuine dispute about the material facts.
FOIA Exemption 6
The court held that the IP addresses and User-Agent headers were “similar files” covered by Exemption 6. The court assumed, without deciding, that disclosure would compromise more than a minimal privacy interest. It noted competing considerations: commenters had submitted comments on a public website and received a notice that names and addresses would be publicly available, but the requested digital information could potentially be combined with other data to create detailed profiles of individuals.
The court found that the FCC’s general statements about the possibility of linking digital identifiers to individuals did not adequately establish how likely that privacy risk was. The court nevertheless considered the public interest in disclosure. It found that the information could help show whether fraudulent activity interfered with the FCC’s comment process and could inform the public about the vulnerability of agency rulemaking generally. Because public comments are an important part of the rulemaking process, the court concluded that the public interest outweighed the privacy interest under Exemption 6. The exemption therefore did not protect the requested information from disclosure.
Burden and reliability objections
The FCC argued that its log was not a database and that extracting the requested information would require creating a script, which it characterized as research rather than a search for existing records. The court rejected those arguments. It concluded that FOIA covers agency information maintained in any format and that using a script to sort existing information and identify responsive entries was an automated search, not research requiring the agency to create new information.
The court also found that the FCC had not shown that creating and running the script would require more than reasonable search efforts or significantly interfere with its automated information system. Finally, the court rejected the FCC’s reliability objection. The parties’ submissions indicated that more than 99 percent of the relevant entries related to rulemaking No. 17-108, while the plaintiffs estimated that less than 0.7 percent were unrelated. The court found that the risk of inaccurate information did not overcome FOIA’s strong presumption favoring disclosure.
Attorneys’ fees and disposition
The plaintiffs also sought reasonable attorneys’ fees and litigation costs under FOIA. Because the parties had not briefed that issue, the court denied the fee request without prejudice to renew.
The court granted the plaintiffs’ motion for summary judgment, denied the FCC’s motion for summary judgment, and denied the plaintiffs’ motion for reasonable attorneys’ fees without prejudice to renew. Judge Schofield directed the Clerk of Court to close the two motions identified in the order.
Read the full 17-page opinion on CourtListener, the free public archive maintained by the Free Law Project.