Antitrust Law Daily Wrap Up, CONSUMER PROTECTION—D.D.C.: FOIA requesters can pursue zip code information from FTC “Consumer Sentinel” database, (Oct 2, 2014)

By Jeffrey May, J.D.

In response to Freedom of Information Act (FOIA) requests from nonprofit entities, the FTC might have wrongfully withheld information concerning the five-digit zip codes of complainants entered into the agency’s “Consumer Sentinel” database, the federal district court in Washington, D.C. has decided. However, the agency properly denied FOIA requests pertaining to other information in the database. Thus, the FTC’s motion for summary judgment in a court action challenging the agency's responses to the FOIA requests, was granted in part and denied in part (Ayuda, Inc. v. FTC, September 30, 2014, Contreras, R.).

The nonprofits—Ayuda, Inc., Catholic Charities of the Archdiocese of Washington, D.C., Catholic Legal Immigration Network, Inc., and Legal Aid Justice Center—filed FOIA requests for information contained in the Consumer Sentinel database. The database, which includes roughly twenty million consumer complaints about identity theft, the Do Not Call Registry, and other fraud and consumer issues, is maintained by a contractor. Apparently, the plaintiffs thought that some of the information in the Consumer Sentinel database could be used to create a consumer review tool akin to “Yelp.com.”

When the plaintiffs’ FOIA requests were denied by the FTC, the nonprofits brought a court action, alleging that the agency wrongfully withheld information in the following “free-form data fields” on the database: (1) the “Company Information Fields,” (2) the “Complainant Geographic Information Field” (consumer address, zip code), and (3) the “Comment Fields.” They also contended that the FTC violated FOIA by refusing to provide information necessary for determining the reasonableness of the contractor’s fee estimates for processing the granted portions of the FOIA requests.

Zip code information. FOIA requires the release of information only if no significant privacy interest is implicated. The FTC unsuccessfully argued that the five-digit zip codes constituted personal identifying information protected from disclosure based on substantial privacy interests. The FTC failed to provide support for its argument that the plaintiffs were receiving many pieces of information about a particular complaint, and that information, when combined with a consumer’s zip code and the accused’s own records, might theoretically enable the accused to identify the consumer. Thus, the FTC’s motion for summary judgment on this issue was denied.

“Company Information Fields” and “Comment Fields.” The court granted summary judgment for the FTC as to the counts seeking free-form “Company Information Fields” and “Comment Fields” because there was a very real possibility of personal identifying information appearing in those fields and because the manual review required to segregate such exempt information would be unduly burdensome. With respect to information in the “Company Information Fields,” the court was concerned about the privacy interests of individuals accused in their personal capacity. The FTC also contended that there was a chance that consumers might mistakenly insert information about themselves in the fields intended for details about the alleged wrongdoer. Moreover, any of the purported benefits in releasing the information put forward by the plaintiffs did not outweigh the substantial privacy interest of protecting victims and individuals accused of wrongdoing from abuse, harassment, and embarrassment given the very real risk of their being identified and the tenuous connection between their personal information and the plaintiffs’ stated policy goals, according to the court.

Similarly, the court was persuaded that privacy concerns were raised by the release of information in the “Comment Fields.” The FTC contended that consumers used these fields to explain their story and often included their own or others’ personal information. Applying the same balancing of interests performed in the context of the “Company Information Fields,” the court found that the “Comment Fields” information had to be withheld.

Law enforcement records. The court also concluded that the information in the “Company Information Fields” and “Comment Fields” was protected under FOIA Exemption 7(C), which protects from disclosure information in law enforcement records that “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” The court noted that the FTC provided no evidence suggesting that the consumer zip codes qualified for protection under this exemption.

Reasonableness of cost estimates for processing FOIA requests. The court granted the FTC's motion for summary judgment on the plaintiffs' claims that the FTC violated FOIA by refusing to provide information necessary for determining the reasonableness of the contractor’s fee estimates for processing the granted portions of the FOIA requests. There was no genuine dispute of material fact that the agency’s cost estimates were reasonable. The court also denied the plaintiffs' motion for partial summary judgment as to the release of complaints received by the FTC through its telephone complaint line, as opposed to those complaints submitted directly by consumers on the FTC’s website.

The case is Civil Action No.: 13-1266 (RC).

Attorneys: David Alan Zetoony (Bryan Cave, LLP) for Ayuda, Inc., Catholic Charities of the Archdiocese of Washington D.C., Catholic Legal Immigration Network, Inc., and Legal Aid Justice Center. John G. Interrante, U.S. Attorney's Office, for FTC.

Companies: Ayuda, Inc.; Catholic Charities of the Archdiocese of Washington D.C.; Catholic Legal Immigration Network, Inc.; Legal Aid Justice Center

Cases: ConsumerProtection Privacy FederalTradeCommissionNews DistrictofColumbiaNews