Bloomberg LP v. FTC, No. 22-3309, 2024 WL 165989 (D.D.C. Jan. 16, 2024) (Contreras, J.)

Bloomberg LP v. FTC, No. 22-3309, 2024 WL 165989 (D.D.C. Jan. 16, 2024) (Contreras, J.)

Re:  Request for all “‘pre-consummation warning letters,’” or “‘close at your own peril’” letters, which are letters sent regarding closing transitions above a certain dollar amount while FTC investigation is still pending, issued by the agency since July 2021

Disposition:  Granting in part and denying in part defendant’s motion for summary judgment; granting in part and denying in part plaintiff’s motion or summary judgment

• Exemption 3:  The court relates that “[t]he FTC contends that FOIA Exemption 3 – in conjunction with the Hart-Scott-Rodino Act – exempts it from having to disclose the pre-consummation warning letters that [plaintiff] seeks.”  “The FTC asserts that Exemption 3 applies because the Hart-Scott-Rodino Act contains a provision prohibiting FOIA disclosure of the content of the letters that Plaintiff seeks.”  “In particular, the Hart-Scott-Rodino Act states that ‘[a]ny information or documentary material filed with . . . the Federal Trade Commission pursuant to this section shall be exempt from disclosure under [FOIA], and no such information or documentary material may be made public, except as may be relevant to any administrative or judicial action or proceeding.’”  “Because the Hart-Scott-Rodino Act specifically creates an exemption from FOIA, there is no question that ‘the statute is one of exemption as contemplated by Exemption 3.’”  “The relevant question, then, is whether the letters the FTC seeks to withhold ‘fall[ ] within the statute.’”  “The Court concludes that some – but not all – of the information contained in the FTC’s letters is covered by the Hart-Scott-Rodino Act’s disclosure exemption.”
  
  “The Court begins with the plain meaning of the statute, which the Court reads as prohibiting the FTC from disclosing ‘close at your own peril’ letters if they contain information that the FTC has solely because it received a pre-transaction notice.”  “As explained above, the Hart-Scott-Rodino Act prohibits disclosure of ‘[a]ny information . . . filed’ with the FTC pursuant to the Act.”  “Parsing out the phrase ‘any information,’ the Court observes that the word ‘any’ must be interpreted broadly.”  “And ‘information’ is ‘[k]nowledge communicated concerning some particular fact, subject, or event; that of which one is apprised or told; intelligence, news.’”  “Thus, to the extent that the FTC’s ‘close at your own peril’ letters contain any kind of knowledge communicated to the FTC by the filers of pre-transaction notices, that information is exempt from disclosure pursuant to FOIA and the Hart-Scott-Rodino Act.”  The court explains that “a pre-consummation letter recipient’s identity is information about who has filed a pre-transaction notice.”  “And the FTC knows who filed a pre-transaction notice because it received that information pursuant to the Hart-Scott-Rodino Act.”  “[Plaintiff] further argues that the letters cannot be exempt from disclosure under the Hart-Scott-Rodino Act because the FTC has published letters with similar information in the past.”  “The Court disagrees.”  “While past agency practice may be informative, it is certainly not dispositive, and it cannot trump the plain text of the statute.”  “Moreover, on some past occasions, the FTC has explicitly refused to turn over information obtained from pre-transaction notices.”  “Therefore, even if the Court could look to past agency practice to determine the Act’s meaning, the FTC’s past practice was, at most, inconsistent.”
  
  “[Plaintiff] argues that even if most of the ‘close at your own peril’ letters are exempt from disclosure, some information in some letters may be segregable and should be disclosed:  namely, (1) information that has previously been publicly disclosed, (2) the non-individualized boilerplate language of the letters, and (3) the dates of the letters.”  First, “[plaintiff] argues that some pre-transaction notice filers’ identities have already been released publicly and therefore are not exempt from disclosure.”  “The Hart-Scott-Rodino Act states that pre-transaction notice information may not ‘be made public’ by the FTC.”  “The word ‘made’ in this provision conveys the idea that the FTC may not ‘bring about’ the public disclosure of information filed pursuant to the Hart-Scott-Rodino Act.”  “However, if information is already public before the FTC disclosure, the FTC does not produce that result by later disclosing the information.”  “Accordingly, to the extent that information in the FTC’s ‘close at your own peril’ letters has previously been made public by pre-transaction notice filers, it is not exempt from disclosure under FOIA Exemption 3.”  “Accordingly, the FTC must disclose ‘close at your own peril’ letters, including the identity of the filing business, when [plaintiff] has demonstrated that that entity itself has publicly disclosed that it has filed a pre-transaction notice.”  “[Plaintiff] also argues that the boilerplate language and the dates of the letters are segregable and should be disclosed.”  “As [plaintiff] points out, the boilerplate language and dates of the ‘close at your own peril’ letters do not reflect information that was filed with the FTC in pre-transaction notices.”  “The Court separately addresses the boilerplate language and the date on which the letter was sent.”  Regarding “the dates on which the ‘close at your own peril’ letters were sent,” the court finds that “the dates on which the ‘close at your own peril’ letters were sent cannot be used to deduce the date on which a business entity submitted its pre-transaction notice.”  “This is because the FTC can send ‘close at your own peril’ letters any time before the expiration of the pre-consummation waiting period, which ranges from a month to longer, depending on whether there is an extension.”  “The FTC does not explain in any tangible way how members of the public could use the dates of ‘close at your own peril’ letters – which are untethered to the dates of pre-transaction notices – to deduce the dates of pre-transaction notices or the identities of filers.”  “Accordingly, the FTC may not redact the dates on which the ‘close at your own peril’ letters were sent.”  “Having concluded that the FTC cannot redact the dates on which the ‘close at your own peril’ letters were sent, its argument concerning the boilerplate language melts away.”  “Although the boilerplate language in the ‘close at your own peril’ letters does not reflect specific information submitted to the FTC, the FTC argues that, because the boilerplate language is already public, it would be unduly burdensome and unnecessary to redact the exempt information while producing only the already public boilerplate language.”  “But given that, as set forth above, the Court is already requiring the FTC to produce the dates on which the various letters were sent, not redacting the already public boilerplate language imposes no burden on the FTC.”
   
• Exemption 7(A):  “With respect to the application of FOIA Exemption 7 to information that is already publicly available, the Court holds that the information is not exempt from disclosure.”  “To the extent that [plaintiff] has demonstrated that information in a specific ‘close at your own peril’ letter has already been made public by a pre-transaction filer, it cannot harm law enforcement efforts for the FTC to disclose that information.”  “FOIA Exemption 7 is also inapplicable to withholding the dates of the ‘close at your own peril’ letters.”  “The FTC contends that disclosure of the dates of the letters could be used to deduce information about transactions it is investigating.”  “The Court disagrees that the date of a letter sent by the FTC to undisclosed parties about an undisclosed transaction will interfere with law enforcement investigations.”  “The business entities being investigated by the FTC are already aware of the investigation because they have been sent the very ‘close at your own peril’ letters that [plaintiff] seeks.”  “To the extent that those business entities might wish to interfere with an FTC investigation, they already have all the information that the FTC wishes to withhold from [plaintiff].”  “In other words, the FTC has failed to demonstrate how revealing the date that it sent a ‘close at your own peril’ letter would provide anyone with useful information they could use to identify any investigation.”  “Nor has the FTC demonstrated how revealing the dates the ‘close at your own peril’ letters were sent might decrease cooperation with the FTC.”