FOIA Follies

Watchdog group sues Federal Trade Commission over FOIA denials

May 25, 2012

A government watchdog group has filed a court complaint against the Federal Trade Commission, claiming the agency arbitrarily denied its public records requests while granting those of liberal organizations.

Cause of Action, a non-profit organization that promotes government transparency, filed an injunction for relief Friday in the United States District Court of the District of Columbia, requesting the court to force the agency to disclose records it has so far withheld.

Cause of Action filed the complaint after filing three separate Freedom of Information Act requests and sparring with the agency for nearly nine months.

"For an administration that has publicly committed itself to transparency, the Federal Trade Commission’s refusal to produce documents in response to Cause of Action’s several month-long FOIA investigation reeks of arbitrariness," Cause of Action executive director Dan Epstein said in a statement to the Free Beacon. "As we state in our complaint, the FTC has wrongfully withheld requested agency records and has repeatedly denied our appeals."

The organization filed its first FOIA request in August 2011, requesting information on the FTC's new guidelines concerning endorsements and testimonials in advertising. The goal was "to shine light into the FTC’s potentially biased enforcement decisions towards individuals who make product endorsements on their blogs," Epstein said.

Cause of Action also requested a fee-waiver. Groups and individuals qualify for FOIA fee-waivers if they can prove they are representatives of the news media, their interests are primarily non-commercial, or that disclosure of information would contribute to public understanding of government operations.

The FTC denied Cause of Action's fee-waver request by saying the group had "failed to demonstrate that disclosure of the requested records will be likely to contribute significantly to public understanding of the operations and activities of government."

After its fee-waiver was denied, Cause of Action requested information from the FTC on other groups who had received fee-waivers with their request.

The FTC continued to deny Cause of Action's requests by saying the group did not meet the requirements for non-commercial status.

The documents Cause of Action did obtain—after months of appeals—revealed the FTC had granted fee-waivers to other groups that used language almost identical to that used by Cause of Action.

"What is most alarming to us is that while our requests are strikingly similar to other organizations who have been granted documents, ours continues to be denied in a repeated cycle of denials that obfuscate the FOIA’s spirit of openness," Epstein said.

Eighteen organizations have received fee-waivers with their FOIA requests, according to FTC documents provided to Cause of Action on March 19. Some of them are media outlets such as Politico, USA Today, and ProPublica.

However, the FTC also granted fee-waivers to liberal organizations such as the AFL-CIO, the Environmental Defense Fund, and the Marin Institute, finding their requests were non-commercial in nature and would contribute to public understanding.

Cause of Action believes the documents show a pattern of bias in the FTC's application of FOIA rules.

"If the public cannot be educated as to what sort of endorsement subjects them to the FTC’s crosshairs, then every American is a moving target for FTC abuse," Epstein said. "Cause of Action seeks to know what our government is up to and we have been told, repeatedly, to shut up."

Neither the Federal Trade Commission's public affairs office nor its general counsel responded to requests for comment.