Case 1:23-cv-02765-DLF Document 1 Filed 09/21/23 Page 1 of 7
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`AMERICA FIRST LEGAL FOUNDATION,
`611 Pennsylvania Avenue SE #231
`Washington, DC 20003
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`Plaintiff,
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`v.
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`UNITED STATES FEDERAL TRADE
`COMMISSION,
` 600 Pennsylvania Avenue NW
`Washington, DC 20850
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`Defendant
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`Civil Action No.: 23-2765
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`COMPLAINT
`(For Violation of the Freedom of Information Act)
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`Parties
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`1.
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`The Plaintiff, America First Legal Foundation (AFL), is a nonprofit
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`organization working to promote the rule of law in the United States, prevent
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`executive overreach, ensure due process and equal protection for all Americans,
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`and encourage public knowledge and understanding of the law and individual
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`rights guaranteed under the United States Constitution and the laws of the United
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`States. AFL filed the Freedom of Information Act request at issue in this case.
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`2.
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`The Defendant, the Federal Trade Commission, is an agency under 5
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`U.S.C. § 522(f), headquartered at 600 Pennsylvania Avenue, NW, Washington, DC
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`Case 1:23-cv-02765-DLF Document 1 Filed 09/21/23 Page 2 of 7
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`20580. It has possession, custody, and control of the requested records and has not
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`produced a single page to date.
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`Jurisdiction and Venue
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`3.
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`The Court has jurisdiction under 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C.
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`§§ 1331, 2201.
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`4. Venue is proper under 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. § 1391(e).
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`Facts
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`5.
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`On March 7, 2023, the United States House of Representatives
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`Committee on the Judiciary and Select Subcommittee on the Weaponization of the
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`Federal Government released an interim staff report on the Federal Trade
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`Commission’s harassment of Twitter after Elon Musk acquired the company. See
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`COMMITTEE ON THE JUDICIARY AND THE SELECT SUBCOMMITTEE ON THE
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`WEAPONIZATION OF THE FEDERAL GOVERNMENT U.S. HOUSE OF REPRESENTATIVES,
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`THE WEAPONIZATION OF THE FEDERAL TRADE COMMISSION: AN AGENCY’S OVERREACH
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`TO HARASS ELON MUSK’S TWITTER (March 7, 2023) (the “Report”), available at
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`https://bit.ly/3yvb8vD.
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`6.
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`The Report’s findings and conclusions include:
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`• Elon Musk completed his acquisition of Twitter on October 27, 2022.
`Two weeks later, the Federal Trade Commission launched the first of
`over a dozen demand letters to the company. “These demand letters
`often followed shortly after Musk took a step that was controversial” to
`leftist activists. Report at 4.
`• On December 2, 2022, journalist Matt Taibbi published the first edition
`of the Twitter Files, a series of reports documenting how Twitter was
`previously used by government actors to censor speech online. On
`December 10, Musk tweeted that “Twitter is both a social media
`company and a crime scene.” Three days later, on December 13, the
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`Case 1:23-cv-02765-DLF Document 1 Filed 09/21/23 Page 3 of 7
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`Federal Trade Commission demanded details of Twitter’s interactions
`with
`journalists, including “Bari Weiss, Matt Taibbi, Michael
`Shellenberger, Abigail Shrier,” and the identities of all other
`journalists to whom Twitter had potentially provided access of its
`internal records. Report at 7
`• The Federal Trade Commission demanded Twitter’s explanation for
`firing Jim Baker, a former FBI General Counsel who helped to censor
`the Hunter Biden laptop story. Report at 11.
`• On October 27, 2022, Musk completed his purchase of Twitter and
`began to reshape Twitter’s focus and its workforce. A few days later,
`Twitter announced the roll-out of its new subscription service, Twitter
`Blue. On November 10, the Federal Trade Commission sent two
`demand letters asking for voluminous information about Twitter’s
`personnel actions—terminations and resignations—and about the
`Twitter Blue service. On November 10, the Federal Trade Commission
`sent two demand letters asking for voluminous information about
`Twitter’s personnel actions—terminations and resignations—and
`about the Twitter Blue service. Report at 9.
`• The Federal Trade Commission has “inappropriately stretched its
`regulatory power to harass Twitter,” misusing a revised consent decree
`“to justify its campaign of harassment” for partisan political purposes.
`Report at 11–12, 14.
`On April 14, 2023, AFL submitted a Freedom of Information Act
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`7.
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`request to the Federal Trade Commission regarding these matters and requested a
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`fee waiver. Exhibit A at 8–12.
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`8.
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`On April 17, 2023, AFL received an acknowledgment from the Federal
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`Trade Commission assigning the request case number 2023-00927. Exhibit A at 14.
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`9.
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`On June 7, 2023, AFL received a denial letter stating:
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`In response to item 1 of your request, records are exempt from disclosure
`under FOIA Exemption 7(A), 5 U.S.C. § 552(b)(7)(A), because disclosure
`of that material could reasonably be expected to interfere with the
`conduct of the Commission’s law enforcement activities. See Robbins
`Tire & Rubber Co. v. NLRB, 437 U.S. 214 (1978). In response to items 2
`through 7 of your request, our search of the FTC’s records did not
`identify any record that would respond to your request.
`Exhibit A at 16–18.
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`Case 1:23-cv-02765-DLF Document 1 Filed 09/21/23 Page 4 of 7
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`10. On August 10, 2023, AFL timely filed an appeal under 5 U.S.C. §
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`552(a)(6)(A)(ii) and 16 C.F.R. § 4.11(a)(3). Exhibit A.
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`11. On September 12, 2023, the Federal Trade Commission denied AFL’s
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`appeal. Exhibit B.
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`12. AFL has exhausted its administrative remedies.
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`Claims for Relief
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`Count I: Categorical Denial of Item 1
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`13. AFL repeats paragraphs 1–12.
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`14. The Defendant’s categorical denial of Item 1 is unlawful. Specifically:
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`A.
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`B.
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`C.
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`D.
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`Item 1 seeks policy statements and interpretations of general
`applicability, not “witness statements.” These records are not
`exempt from disclosure under 5 U.S.C. § 552(b)(7)(A).
`The Court in Robbins Tire & Rubber Co. v. NLRB found that
`“witness statements in pending unfair labor practice proceedings
`are exempt from FOIA disclosure at least until completion of the
`Board’s hearing.” 437 U.S. 214, 236 (1978). AFL's FOIA Request
`No. 1 is for policy statements, and further, there is no pending
`“Board hearing” at all relevant time periods. Id.
`The Defendant’s regulations provide initial determinations to
`deny “active investigatory files” must be made by the “Director
`or the Deputy Director of the Bureau or the Director of the
`Regional Office responsible for the investigation” rather than the
`“deciding official (as designated by the General Counsel).” 16
`C.F.R. § 4.11(a)(1)(iii)(B).
`The Defendant’s regulations provide that it “will only withhold
`information if the agency reasonably foresees that disclosure
`would harm an interest protected by a FOIA exemption or
`disclosure is prohibited by law.” 16 C.F.R. § 4.11(a)(1)(iii)(A). The
`Defendant’s regulations further provide that it must “take
`reasonable steps
`to segregate and release nonexempt
`information.” Id. It has failed both to undertake the requisite
`analysis and to segregate and release nonexempt information.
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`Case 1:23-cv-02765-DLF Document 1 Filed 09/21/23 Page 5 of 7
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`E.
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`F.
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`G.
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`The Defendant has a non-discretionary duty to publish its
`standards justifying re-opening the Twitter investigation. It has
`not done so.
`The Defendant is not a “law enforcement agency” because
`Federal Trade Commission commissioners are not subject to the
`President’s removal power. See Seila L. LLC v. Consumer Fin.
`Prot. Bureau, 140 S. Ct. 2183, 2198–99 (2020). Also, the term
`“law enforcement agency” in § 552(b)(7)(A) must be construed
`according to its ordinary public meaning at the time of
`enactment. New Prime Inc. v. Oliveira, 139 S. Ct. 532, 539, 202
`L. Ed. 2d 536 (2019). The ordinary understanding of “law
`enforcement” includes the investigation and prosecution of
`offenses and proactive steps to prevent criminal activity and
`maintain security. Milner v. Dep’t of Navy, 562 U.S. 562, 582
`(2011) (Alito, J., concurring). The Federal Trade Commission
`does not have such authority.
`Even if the Federal Trade Commission is a law enforcement
`agency under FOIA, and Item 1 includes records such as witness
`statements, the Federal Trade Commission’s denial is still
`erroneous. A “law enforcement purpose” does not include
`investigatory activities wholly unrelated to law enforcement
`agencies’ legislated functions of preventing risks to national
`security and violations of criminal laws and of apprehending
`those who do violate the rules. Pratt v. Webster, 673 F.2d 408,
`420-21 (D.C. Cir. 1982).
`To pass the FOIA Exemption 7 threshold, the Federal Trade
`Commission must establish that its investigatory activities are
`realistically based on a legitimate concern that federal laws have
`been or may be violated or that national security may be
`breached. Id. Either of these concerns must have some plausible
`basis and a rational connection to the object of the agency’s
`investigation. Id.; (see also Jefferson v. Dep’t of Just., Off. of Pro.
`Resp., 284 F.3d 172, 178 (D.C. Cir. 2002)). It has failed to do this.
`The Federal Trade Commission’s regulations require that it must
`"take reasonable steps to segregate and release nonexempt
`information." 16 C.F.R. § 4.11(a)(1)(iii)(A) (emphasis added).
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`15. AFL should be granted declaratory and injunctive relief under 5 U.S.C.
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`H.
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`I.
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`§ 552(a)(4)(B).
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`Case 1:23-cv-02765-DLF Document 1 Filed 09/21/23 Page 6 of 7
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`Count II: Items 2 through 7
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`16. AFL repeats paragraphs 1–15.
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`17. For Items 2 through 7, the Defendant has failed to make an adequate
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`search, explain its search process in a relatively detailed and non-conclusory way,
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`and/or produce responsive records.
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`18. This is unlawful. See U.S. DEP’T OF JUST., Guide to the Freedom of
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`Information Act Procedural Requirements at 42 (Aug. 20, 2021), https://bit.ly/3ytafVq;
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`Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978).
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`19. AFL should be granted declaratory and injunctive relief under 5 U.S.C.
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`§ 552(a)(4)(B).
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`Relief Requested
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`WHEREFORE, AFL respectfully requests this Court:
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`A.
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`Declare that the records sought by the request, as described in the
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`foregoing paragraphs, must be disclosed pursuant to 5 U.S.C. § 552.
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`B.
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`Order the Defendant, the Federal Trade Commission, to conduct
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`genuine searches immediately for all records responsive to AFL’s FOIA request and
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`demonstrate that they employed search methods reasonably likely to lead to the
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`discovery of responsive records.
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`C.
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`Order the Defendant to produce, by a date certain, all non-exempt
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`records responsive to AFL’s FOIA request.
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`D.
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`Award AFL attorneys’ fees and costs pursuant to 5 U.S.C.
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`§552(a)(4)(E).
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`Case 1:23-cv-02765-DLF Document 1 Filed 09/21/23 Page 7 of 7
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`E.
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`Grant AFL such other and further relief as this Court deems proper.
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`Dated: September 21, 2023
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`Respectfully submitted,
`/s/ Michael Ding
`Juli Z. Haller (DC Bar No. 466921)
`Michael Ding (DC Bar No. 1027252)
`AMERICA FIRST LEGAL FOUNDATION
`611 Pennsylvania Ave SE #231
`Washington, DC 20003
`(202) 964-3721
`juli.haller@aflegal.org
`michael.ding@aflegal.org
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`Counsel for America First Legal Foundation
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`7
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