Justia U.S. D.C. Circuit Court of Appeals Opinion Summaries

Articles Posted in Communications Law
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Jamal Khashoggi, a prominent Saudi journalist, was murdered in a Saudi consulate in 2018, apparently on orders of the Saudi Crown Prince. Under the Freedom of Information Act, 5 U.S.C. 552(a)(3)(A), the plaintiffs sought records about whether four U.S. intelligence agencies knew, before the murder, of an impending threat to Khashoggi. The agencies refused to confirm or deny whether they have any responsive records, on the ground that the existence or nonexistence of such records is classified information. FOIA Exemption 1 covers matters that are “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy.” To claim a FOIA exemption, an agency ordinarily must “acknowledge the existence of information responsive to a FOIA request” but if “the fact of the existence or nonexistence of agency records” itself falls within a FOIA exemption, the agency may “refuse to confirm or deny the existence” of the requested records, a “Glomar” response.The D.C. Circuit affirmed summary judgment in favor of the agencies. Statements made by a State Department spokesman soon after the murder do not foreclose the intelligence agencies from asserting their Glomar responses; the intelligence agencies have logically and plausibly explained why the existence or nonexistence of responsive records is classified information. View "Knight First Amendment Institute at Columbia University v. Central Intelligence Agency" on Justia Law

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Protect Democracy challenged the National Security Agency’s decision to withhold from disclosure under the Freedom of Information Act a memorandum the NSA Deputy Director wrote in 2017, memorializing what was said on a phone call he participated in between then-president Trump and the NSA Director soon after it occurred. According to an account of the phone call in Special Counsel Mueller’s report on Russian interference in the 2016 election, Trump asked the NSA Director whether he could do anything to refute news stories connecting Trump to the Russian government. The NSA cited a FOIA exemption that incorporates privileges available to the government in civil litigation, claiming executive privilege for presidential communications.The district court sustained the privilege claim and denied a request to examine the memo for any segregable passages subject to release under FOIA. The D.C. Circuit affirmed. The government did not waive the privilege when it published in the Mueller Report a description of the conversation. Based on an “in camera” review, the memo falls squarely within the scope of the presidential communications privilege, which applies to the memo in its entirety. “Protect Democracy cannot shrink the scope of the privilege by invoking FOIA’s segregability requirement, even if its FOIA request raises credible allegations of governmental misconduct.” The Mueller Report’s description of the phone call did not waive the privilege, as not all the information in the memo specifically matches the information released in the report. View "Protect Democracy Project, Inc. v. National Security Agency" on Justia Law

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Cause, a nonprofit organization committed to government transparency and openness, submitted a FOIA request, 5 U.S.C. 552(a)(3)(A), for the internet browsing histories of several senior agency officials over a specified period of approximately six months. The requests included two officials by name—Office of Management and Budget (OMB) Director Mulvaney and USDA Secretary Perdue—and two by position. OMB acknowledged receiving the request but never processed it. USDA denied the request, explaining that the browsing histories were not integrated into its record system, so the Department did not have sufficient control over the browsing histories such that they constituted “agency records” under FOIA. Cause filed suit. The district court granted the agencies summary judgment.The D.C. Circuit affirmed. The term “agency records” extends only to those documents that an agency both creates or obtains and controls at the time of the FOIA request. The agencies did not “control” the requested documents to the extent required for them to constitute agency records because agency personnel did not read or rely upon the browsing histories. OMB and USDA employees have significant control over the browsing histories, which they could freely delete; the agencies did not use the officials’ browsing histories for any purpose, much less a purpose connected to decision-making. View "Cause of Action Institute v. Office of Management and Budget" on Justia Law

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Klayman founded Judicial Watch in 1994 and served as its Chairman and General Counsel until 2003. Klayman claims he left voluntarily. Judicial Watch (JW) claims it forced Klayman to resign based on misconduct. During negotiations over Klayman’s departure, JW prepared its newsletter, which was mailed to donors with a letter signed by Klayman as “Chairman and General Counsel.” While the newsletter was at the printer, the parties executed a severance agreement. Klayman resigned; the parties were prohibited from disparaging each other. Klayman was prohibited from access to donor lists and agreed to pay outstanding personal expenses. JW paid Klayman $600,000. Klayman ran to represent Florida in the U.S. Senate. His campaign used the vendor that JW used for its mailings and use the names of JW’s donors for campaign solicitations. Klayman lost the election, then launched “Saving Judicial Watch,” with a fundraising effort directed at JW donors using names obtained for his Senate run. In promotional materials, Klayman asserted that he resigned to run for Senate, that the JW leadership team had mismanaged and the organization, and that Klayman should be reinstated.Klayman filed a complaint against JW, asserting violations of the Lanham Act, 15 U.S.C. 1125(a)(1), by publishing a false endorsement when it sent the newsletter identifying him as “Chairman and General Counsel” after he had left JW. Klayman also alleged that JW breached the non-disparagement agreement by preventing him from making fair comments about JW and that JW defamed him. During the 15 years of ensuing litigation, Klayman lost several claims at summary judgment and lost the remaining claims at trial. The jury awarded JW $2.3 million. The D.C. Circuit rejected all of Klayman’s claims on appeal. View "Klayman v. Judicial Watch, Inc." on Justia Law

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Inna Khodorkovskaya sued the director and the playwright of Kleptocracy, a play that ran for a month in 2019 at the Arena Stage in Washington, D.C. She alleged false light invasion of privacy and intentional infliction of emotional distress. Inna, who was a character in Kleptocracy, alleges that the play falsely depicted her as a prostitute and murderer. Inna’s husband was persecuted because of his opposition to Vladimir Putin; the two obtained asylum in the U.K.The district court dismissed her complaint, reasoning that Kleptocracy is a fictional play, even if inspired by historical events, and that the play employed various dramatic devices underscoring its fictional character so that no reasonable audience member would understand the play to communicate that the real-life Inna was a prostitute or murderer. The D.C. Circuit affirmed. “Kleptocracy is not journalism; it is theater. It is, in particular, a theatrical production for a live audience, a genre in which drama and dramatic license are generally the coin of the realm.” The play’s use of a fictional and metaphorical tiger, of Vladimir Putin reciting poetry, and of a ghost reinforce to the reasonable audience member that the play’s contents cannot be taken literally. View "Khodorkovskaya v. Gay" on Justia Law

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Competitive carriers” compete with legacy “incumbent carriers,” descendants of AT&T’s broken-up monopoly that typically own local phone networks. Competitive carriers lease or purchase the use of incumbent networks to deliver services and, therefore, have greater geographic flexibility to pursue profitable markets. Servicing toll conference centers has been a particularly lucrative business; fee structures create an incentive to route calls through rural areas and encourage toll conference centers to operate there. As a result, some sparsely populated rural areas receive a disproportionate number of calls, resulting in overloaded networks, call blocking, and dropped calls. Long-distance carriers complained to the FCC.In a 2011 rule, the FCC designated carriers who exploited this regulatory loophole as “access stimulators” and imposed sanctions. The rule was not entirely successful. In 2018, the Commission issued a Notice of Proposed Rulemaking, targeting harmful access stimulation practices. After the close of the comment period, AT&T and NTCA (a trade association ) met with the FCC, which adopted rules largely following those proposed in its draft order but incorporating differentiated definitions proposed by AT&T and NTCA. The rule was intended to "properly align financial incentives by making the access-stimulating [carrier] responsible for paying for the part of the call path that it dictates.”The D.C. CIrcuit rejected a challenge by competitive carriers and companies that offer conference calls. The rule does not exceed the Commission’s statutory authority and is not arbitrary or unreasonable. View "Great Lakes Communication Corp v. Federal Communications Commission" on Justia Law

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FBI agents impersonated members of the press so that they could trick an unknown student who had threatened to bomb his school into revealing his identity. When news of the FBI’s tactics became public, media organizations were incensed that their names and reputations had been used to facilitate the ruse. The Reporters Committee filed Freedom of Information Act, 5 U.S.C. 552(a)(3), requests seeking more information about the FBI’s ploy. The district court ruled that the government could withhold from disclosure dozens of the requested documents under FOIA Exemption 5, which states that agencies need not disclose “inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency.” The court ruled that the documents are protected by the common law deliberative process privilege and that their disclosure would likely cause harm to the agency’s deliberative processes going forward.The D.C. Circuit affirmed in part. The government properly withheld the emails in which FBI leadership deliberated about appropriate responses to media and legislative pressure to alter FBI undercover tactics and internal conversations about the implications of changing undercover practices going forward. The government did not satisfy its burden to show either that the other documents at issue were deliberative or that their disclosure would cause foreseeable harm. View "Reporters Committee for Freedom of the Press v. Federal Bureau of Investigation" on Justia Law

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A 1993 Communications Act amendment required the FCC to collect regulatory fees to recover the costs of its activities. “Space stations” (satellites) were included in the schedule but there were blanket exceptions for governmental or nonprofit entities. Initially, the FCC limited regulatory fees to those entities it licensed, which does not include foreign-licensed satellites. In 2013, the FCC invited comment on that conclusion but declined to decide the issue. The 2018 “Ray Baum’s Act,” 47 U.S.C. 159, changed the FCC’s authority to adjust the fee schedule based on the number of “units” (satellites) subject to fees rather than either the number of units or licensees and added the power to adjust fees based on factors “reasonably related to the benefits provided" by FCC activities.In 2019, the FCC again sought comment, noting that foreign-licensed satellites that serve U.S. customers benefit in the same manner as their U.S.-licensed competitors. The FCC concluded it should adopt regulatory fees for non-U.S. licensed satellites with U.S. market access. Foreign-licensed satellite operators must petition the FCC to access the U.S. market. The FCC devotes significant resources to processing such petitions. The current exemption “places the burden of regulatory fees" solely on U.S. licensees; commercial foreign-licensed satellites with general U.S. market access did not exist until 1997. The D.C. Circuit denied a petition for review. The petitioners have not shown that the FCC unreasonably interpreted the Act or provided inadequate notice of the Order. View "Telesat Canada v. Federal Communications Commission" on Justia Law

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Hurricanes Irma and Maria devastated Puerto Rico and the U.S. Virgin Islands (the Territories) in September 2017 and destroyed large portions of the Territories’ telecommunications networks. In response, the FCC issued three orders that provided subsidies from the Universal Service Fund to help rebuild those networks. TriCounty, a telecommunications provider that contributes to the Fund, challenged two orders under the Administrative Procedure Act (APA) and the Communications Act. Tri-County argued that in one order, the FCC bypassed notice and comment without good cause and failed to justify the amount and allocation of funds and that in both orders, the FCC departed from a previous policy without explanation and contravened the Communications Act.The D.C. Circuit denied a petition for review, after finding that TriCounty had standing to challenge the orders, except with respect to the allocation of funds, from which it suffered no concrete harm. The Communications Act directs the FCC to make policies “for the preservation and advancement of universal service.” 47 U.S.C. 254(b). The FCC had previously used the Fund for disaster relief and its findings with respect to the Territories were reasonable. Under the APA, an agency may forgo notice and comment when it is “impracticable, unnecessary, or contrary to the public interest,” 5 U.S.C. 553(b)(B). View "Tri-County Telephone Association, Inc. v. e Federal Communications Commission" on Justia Law

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COA submitted a Freedom of Information Act (FOIA), 5 U.S.C. 552, request, seeking access to specified Department of Justice (DOJ) records. The response indicated that 143 pages contained records that were responsive to the request. Three cover letters and four Questions for the Record (QFR) documents were identified as responsive, each contains questions posed by members of Congress and, for two of the documents, the corresponding answers provided by DOJ. Each document is self-contained, with a single, overarching heading. The questions and answers in each document are consecutively numbered, and all but one of the documents has consecutively numbered pages. DOJ removed pages and redacted material from those documents without claiming exemption from disclosure under FOIA but claiming that these pages and material need not be disclosed because they constitute “Non-Responsive Record[s].” COA filed suit.The D.C. Circuit held that DOJ’s position is untenable. Once an agency identifies a record it deems responsive, FOIA compels disclosure of the responsive record as a unit except insofar as the agency may redact information falling within a statutory exemption. FOIA calls for disclosure of a responsive record, not just responsive information within a record. Each of the QFR documents constitutes a unitary record, as demonstrated by DOJ’s own treatment of those documents. A challenge to DOJ’s alleged policy or practice of segmenting one record into multiple records to avoid disclosure was unripe. View "Cause of Action Institute v. Department of Justice" on Justia Law