Bloomberg L.P. v. Federal Trade Commission

• Court: District Court, District of Columbia
• Decided: January 16, 2024
• Docket: Civil Action No. 2022-3309
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BLOOMBERG LP, : : Plaintiff, : Civil Action No.: 22-3309 (RC) : v. : Re Document Nos.: 11, 14 : FEDERAL TRADE COMMISSION, : : Defendant. :

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

Plaintiff Bloomberg LP has filed suit against Defendant Federal Trade Commission

(“FTC”) under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, to obtain documents

the FTC has withheld from disclosure. Before the Court are the FTC’s motion for summary

judgment (“Def.’s Mot.”), ECF No. 11, and Bloomberg’s cross-motion for summary judgment

(“Pl.’s Mot.”), ECF No. 14-1, which includes Bloomberg’s opposition to the FTC’s motion for

summary judgment. The FTC has filed a combined opposition to Bloomberg’s cross-motion for

summary judgment and reply in support of its own motion (“Def.’s Reply”), ECF No. 20. And

Bloomberg has filed a reply in support of its own motion, (“Pl.’s Reply”) ECF No. 23. For the

following reasons, the Court GRANTS in part and DENIES in part the FTC’s motion for

summary judgment and GRANTS in part and DENIES in part Bloomberg’s motion for

summary judgment. II. BACKGROUND

The Hart-Scott-Rodino Act requires certain business entities that plan to “acquire,

directly or indirectly, any voting securities or assets of any” other business to file a notification 1

with the FTC if the transaction is worth over a certain dollar amount. 15 U.S.C. § 18a(a). After

business entities file a pre-transaction notice, the FTC has thirty days to review that notice to

determine whether the transaction would violate the antitrust laws. Id. § 18a(b), (d). As a

general matter, transactions that are subject to the pre-transaction notice requirement may not be

consummated until after the thirty-day waiting period has elapsed. Id. § 18a(b). In certain

circumstances—such as when the FTC requests more information from the transacting

businesses—the waiting period deadline may be extended. Id. § 18a(e)(2), (g)(2). If the FTC

believes that the transaction would violate the antitrust laws, it may file an action to prevent the

transaction. Id. § 45. Even if the FTC does not file an action within the thirty-day waiting

period, however, it may still file an action later to enforce the antitrust laws—including after the

transaction has been consummated. Id. §§ 18, 45.

This case arises from the FTC’s practice of sending what Bloomberg calls “close at your

own peril,” and what the FTC calls “pre-consummation warning,” letters. Def.’s Statement of

Undisputed Facts (“Def.’s Undisputed Facts”) at 3–4, ECF No. 11; Pl.’s Mot. at 2. These are

letters the FTC sends to business entities that have filed pre-transaction notices informing those

businesses that the FTC will not be able to complete its investigation of their transaction within

the 30-day deadline. The “close at your own peril” letters further alert recipients that the FTC’s

investigation remains open and that, should their transaction proceed, the FTC may seek to

enforce the antitrust laws with respect to the transaction at a later date. Bloomberg sent the FTC

1 The Court often refers to these notifications as “pre-transaction notices.”

2 a request under the Freedom of Information Act seeking that the FTC disclose “all pre-

consummation warning letters issued by the agency since July 2021.” Freedom of Information

Act Request, ECF No. 11-2 at 7–8. The FTC made the determination that the letters were

exempt from FOIA disclosure. Def.’s Undisputed Facts at 6. Bloomberg filed an administrative

appeal, where the agency’s determination was affirmed. Id. at 7. Accordingly, Bloomberg

brought suit in this Court to compel the FTC to disclose the letters. Compl. at 1, ECF No. 1.

III. LEGAL STANDARD

“The Freedom of Information Act is meant ‘to pierce the veil of administrative secrecy

and to open agency action to the light of public scrutiny.’” Woodward v. U.S. Marshals Serv.,

No. CV 18-1249, 2022 WL 296171, at *2 (D.D.C. Feb. 1, 2022) (quoting U.S. Dep’t of State v.

Ray, 502 U.S. 164, 173 (1991)). Under FOIA, government agencies must disclose requested

government records unless exempt from doing so by statute. 5 U.S.C. § 552(b). If an agency

refuses to disclose records, the requesting party may then seek to enjoin the agency from

withholding the records. 5 U.S.C. § 552(a)(4)(B).

“FOIA cases typically and appropriately are decided on motions for summary judgment.”

Louise Trauma Ctr. LLC v. U.S. Dep’t of Just., No. CV 20-3517, 2023 WL 6646335, at *2

(D.D.C. Oct. 12, 2023) (citation omitted). The Court will grant a motion for summary judgment

“if the movant shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “To prevail on a motion for

summary judgment in a FOIA case, ‘the defending agency must prove that each document that

falls within the class requested either has been produced, is unidentifiable or is wholly exempt

from the Act’s inspection requirements.’” Woodward, 2022 WL 296171, at *2 (quoting

Weisberg v. U.S. Dep’t of Just., 627 F.2d 365, 368 (D.C. Cir. 1980)); Niskanen Ctr. v. FERC,

3 436 F. Supp. 3d 206, 212 (D.D.C. 2020), aff’d, 20 F.4th 787 (D.C. Cir. 2021) (“The Court may

grant summary judgment based solely on information provided in an agency’s affidavits or

declarations when they ‘describe the documents and the justifications for nondisclosure with

reasonably specific detail, demonstrate that the information withheld logically falls within the

claimed exemption, and are not controverted by either contrary evidence in the record nor by

evidence of agency bad faith.’” (citation omitted)).

An agency’s declarations are accorded a presumption of good faith, SafeCard Servs., Inc.

v. S.E.C., 926 F.2d 1197, 1200 (D.C. Cir. 1991), but the withholding agency bears the burden of

demonstrating that its withholding is proper, 5 U.S.C. § 552(a)(4)(B). “This burden does not

shift even when the requester files a cross-motion for summary judgment because ‘the

Government ultimately has the onus of proving that the documents are exempt from disclosure,’

while the ‘burden upon the requester is merely to establish the absence of material factual issues

before a summary disposition of the case could permissibly occur.’” Hardy v. ATF, 243 F. Supp.

3d 155, 162 (D.D.C. 2017) (cleaned up) (quoting Pub. Citizen Health Research Grp. v. FDA,

185 F.3d 898, 904–05 (D.C. Cir. 1999)). Moreover, FOIA exemptions are “narrowly construed.”

Bloche v. Dep’t of Def., 370 F. Supp. 3d 40, 50 (D.D.C. 2019) (quoting Morley v. CIA, 508 F.3d

1108, 1115 (D.C. Cir. 2007)). Even if some requested material is exempt from disclosure, “any

reasonably segregable non-exempt parts of records” must be “disclosed after redaction of exempt

information.” Am. Immigr. Council v. U.S. Customs & Border Patrol, No. CV 19-2965, 2023

WL 2755412, at *2 (D.D.C. Apr. 3, 2023) (cleaned up).

IV. ANALYSIS

The FTC relies on two statutory FOIA exemptions to justify withholding the “close at

your own peril” letters that Bloomberg seeks. The Court addresses each exemption in turn.

4 A. FOIA Exemption 3

The 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 Bloomberg

seeks. Def.’s Mot. at 8–9. “FOIA Exemption 3 authorizes agencies to withhold records that are

‘specifically exempted from disclosure by statute.’” Corley v. Dep’t of Just., 998 F.3d 981, 984

(D.C. Cir. 2021) (quoting 5 U.S.C. § 552(b)(3)). “A statute qualifies for the exemption if it

‘requires that . . . matters be withheld from the public in such a manner as to leave no discretion

on the issue’ or if it ‘establishes particular criteria for withholding or refers to particular types of

matters to be withheld.’” Id. (quoting 5 U.S.C. § 552(b)(3)(A)). “To withhold records under

Exemption 3, an agency must make two showings: ‘that the statute [ ] is one of exemption as

contemplated by Exemption 3,’ and ‘that the withheld material falls within the statute.’” Id. at

984–85 (quoting Larson v. Dep’t of State, 565 F.3d 857, 865 (D.C. Cir. 2009)).

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. See Def.’s

Mot. at 9. 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.” 15

U.S.C. § 18a(h). 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.” See Corley, 998 F.3d at 984 (cleaned up). The relevant question, then, is whether the letters

the FTC seeks to withhold “fall[] within the statute.” Id. (quotation marks omitted). The Court

5 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. 15 U.S.C. § 18a(h). Parsing out the phrase “any information,” the Court

observes that the word “any” must be interpreted broadly. See Lisack v. Comm’r of Internal

Revenue, 68 F.4th 1312, 1320 (D.C. Cir. 2023) (“The Supreme Court has ‘repeatedly explained’

that ‘the word “any” has an expansive meaning.’” (quoting Patel v. Garland, 596 U.S. 328, 338

(2022))). And “information” is “[k]nowledge communicated concerning some particular fact,

subject, or event; that of which one is apprised or told; intelligence, news.” Information,

OXFORD ENGLISH DICTIONARY ONLINE, https://doi.org/10.1093/OED/4797063575 (last visited

Jan. 16, 2023). 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.

Bloomberg asserts that “[t]he fact of a[] [Hart-Scott-Rodino] filing is not itself

‘information … filed with’ the FTC.” Pl.’s Reply at 6. But Bloomberg’s assertion conflicts with

the plain text of the statute. This is so because 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.

Accordingly, the FTC has explained with reasonably specific detail that the letters contain

information provided to the FTC by filers of pre-transaction notices and there is no reason to

6 believe the FTC’s declarations were made in bad faith. See Decl. of Holly Vedova at 4–5, ECF

No. 11–1; Suppl. Decl. of Holly Vedova at 3–4, ECF No. 22–1.

Bloomberg 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. See Pl.’s Mot. at 4–5; Pl.’s Reply at 3–7. 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. As explained above, the plain text of the Hart-Scott-Rodino Act prohibits disclosure of

any information filed with the FTC pursuant to the Act. Even if true, the fact that the FTC may

have released such information in the past does not change the analysis here; the Court cannot

conclude that disclosing the letters would be “lawful merely because the agency did something

similar in the past.” Capital Area Immigrants’ Rights Coal. v. Trump, 471 F. Supp. 3d 25, 51

n.19 (D.D.C. 2020). Moreover, on some past occasions, the FTC has explicitly refused to turn

over information obtained from pre-transaction notices. See, e.g., Mattox v. F.T.C., 752 F.2d

116, 119 (5th Cir. 1985) (affirming the FTC’s decision not to disclose pre-transaction notice

information to Texas Attorney General). 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.

Bloomberg 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.

Bloomberg argues that some pre-transaction notice filers’ identities have already been

released publicly and therefore are not exempt from disclosure. See Pl.’s Mot at 3, 9–10; Pl.’s

Reply at 8. The Hart-Scott-Rodino Act states that pre-transaction notice information may not

7 “be made public” by the FTC. 15 U.S.C. § 18a(h). 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. See Made, OXFORD ENGLISH DICTIONARY ONLINE

https://doi.org/10.1093/OED/1086486179 (last visited Jan. 16, 2023) (“To produce by action,

bring about (a condition of things, a state of feeling).”). 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.

This interpretation is also consistent with the D.C. Circuit’s public domain doctrine.

“Under the ‘public-domain doctrine, materials normally immunized from disclosure under FOIA

lose their protective cloak once disclosed and preserved in a permanent public record.’” Brown

v. Dep’t of State, 317 F. Supp. 3d 370, 375 (D.D.C. 2018) (quoting Cottone v. Reno, 193 F.3d

550, 554 (D.C. Cir. 1999)); see also Students Against Genocide v. Dep’t of State, 257 F.3d 828,

836 (D.C. Cir. 2001) (explaining that “the government may not rely on an otherwise valid

exemption to justify withholding information that is already in the ‘public domain’”).

However, before the Court will order information disclosed under the public domain

doctrine, it “must be confident that the information sought is truly public and that the requester

[will] receive no more than what is publicly available.” Brown, 317 F. Supp. 3d at 375 (quoting

Cottone, 193 F.3d at 555). Accordingly, courts in this District have held that “[t]o take

advantage of this doctrine, a plaintiff must ‘establish[ ] that the information he seeks has entered

and remains in the public domain.’” Id. (citation omitted); Cottone, 193 F.3d at 554 (“[T]he

party advocating disclosure bears the initial burden of production; for were it otherwise, the

8 government would face the daunting task of proving a negative: that requested information had

not been previously disclosed.”). Bloomberg has provided a list of internet links to public

announcements of transactions—some of which reference the filing of pre-transaction notices.

See Decl. of Leah Nylen, Ex. B., ECF No. 14–3; Pl.’s Reply at 7–9, 14. To the extent that these

links publicly disclose pre-transaction notice information—i.e., the identities of business entities

when the entity itself has announced that it has filed a pre-transaction notice—that information is

not exempt from FOIA disclosure and is segregable. 2 Accordingly, the FTC must disclose

“close at your own peril” letters, including the identity of the filing business, when Bloomberg

has demonstrated that that entity itself has publicly disclosed that it has filed a pre-transaction

notice. 3

Bloomberg also argues that the boilerplate language and the dates of the letters are

segregable and should be disclosed. Pl.’s Mot. at 12. As Bloomberg 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. Id.; Pl.’s Reply at 19. The Court separately

addresses the boilerplate language and the date on which the letter was sent below.

2 Because the burden of demonstrating that information is already in the public domain rests with Bloomberg, the FTC is not required to search beyond the examples that Bloomberg has provided. If Bloomberg believes there are additional instances of public disclosures by pre-transaction filers that make FOIA Exemption 3 inapplicable to a specific “close at your own peril” letter sent to that entity, it must demonstrate that the information is publicly available before the FTC is required to disclose that information. See Cottone, 193 F.3d at 554. Thus, if Bloomberg wishes to obtain “close at your own peril” letters based on other public disclosures that it has not included here, it may seek that information in a new FOIA request. 3 To the extent that Bloomberg suggests that the FTC must confirm the identity of filers disclosed by third-parties, rather than disclosed by the filing entity itself, that proposition is mistaken. Djenasevic v. Exec. Off. of United States Att'ys, 319 F. Supp. 3d 474, 484 (D.D.C. 2018) (“[T]he public domain exception only applies to information ‘in the public domain by official disclosure.’” (quoting Wolf v. CIA, 473 F.3d 370, 378 (D.C. Cir. 2007))).

9 Bloomberg seeks disclosure of the dates on which the “close at your own peril” letters

were sent so that, if nothing else, it can determine the volume and frequency at which the FTC

sent these types of letters. The FTC argues that, although the date on which a “close at your own

peril” letter is sent is not exempt itself, that date should be protected nonetheless because,

combined with other publicly available information, that date may allow the public to deduce

information filed with the FTC that is categorically protected—such as the dates of pre-

transaction notices or business entities’ identities. Def.’s Reply at 14. But 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. See 15 U.S.C.

§ 18a(e)(2) (permitting extension of investigation deadline). 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. 4 See Kwoka v. Internal Revenue Serv., No. 17-CV-

1157, 2018 WL 4681000, at *2–3 (D.D.C. Sept. 28, 2018) (rejecting IRS Exemption 3 argument

that release of non-exempt material would permit plaintiff to deduce identities of taxpayers

because “[e]ven armed with the information she requests and [publicly accessible information],

in most cases [plaintiff] could not know with any certainty the identity of particular taxpayers”);

4 The Court observes that well over a thousand pre-transaction notices are filed each year. See LINA M. KHAN & JONATHAN KANTER, HART-SCOTT-RODINO ACT ANNUAL REPORT: FISCAL YEAR 2021, Federal Trade Commission & Department of Justice Antitrust Division (44th ed.) https://www.ftc.gov/system/files/ftc_gov/pdf/p110014fy2021hsrannualreport.pdf (last visited Jan. 16, 2023) (“In fiscal year 2021, a record-breaking 3,520 transactions were reported under the HSR Act, representing about a 115 percent increase from the 1,637 transactions reported in fiscal year 2020.”).

10 Citizens for Env’t Quality, Inc. v. U.S. Dep’t of Agric., 602 F. Supp. 534, 540 (D.D.C. 1984)

(rejecting FOIA exemption argument because Government failed to establish that protected

information could be deduced from disclosure of non-exempt information). The FTC’s

argument in this respect is conclusory and, thus, the FTC has failed to meet its burden pursuant

to FOIA to withhold that information. See, e.g., Mead Data Ctr., Inc. v. U.S. Dep’t of Air Force,

566 F.2d 242, 261 (D.C. Cir. 1977) (explaining that agency must provide a “detailed

justification” and not just “conclusory statements” to prove that it has released all reasonably

segregable information). 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. See Mead Data Ctr.,

566 F.2d at 260 (FOIA does not require disclosure of non-exempt information if it is

“inextricably intertwined with exempt portions.”). 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.

11 Accordingly, both the boilerplate language found in the FTC’s “close at your own peril”

letters and the dates on which they were sent is segregable information that is not exempt from

disclosure under FOIA Exemption 3 and, thus, must be disclosed. 5

B. FOIA Exemption 7(A)

The FTC also argues that the pre-consummation letters are exempt from disclosure under

Exemption 7(A). Def.’s Mot. at 15. Because the Court holds above that the content of the letters

derived from non-public pre-transaction notice information—including filers’ identities—is

exempt from disclosure under FOIA Exemption 3, the Court need not decide whether FOIA

Exemption 7 applies to that information. The Court briefly addresses Exemption 7 with respect

to the question of whether information that is already public, as well as the dates of the letters,

are exempt from disclosure. The answer is no.

As relevant here, FOIA Exemption 7 exempts from disclosure “records or information

compiled for law enforcement purposes . . . to the extent that the production of such law

enforcement records or information . . . could reasonably be expected to interfere with

enforcement proceedings,” among other conditions. 5 U.S.C. § 552(b)(7). “Exemption 7(A)

does not authorize automatic or wholesale withholding of records or information simply because

the material is related to an enforcement proceeding. . . . Rather, an agency seeking to shield

records or information behind exemption 7(A) must show that disclosure could reasonably be

5 If not for the Court requiring the FTC to disclose the dates of the “close at your own peril” letters (thereby allowing the public to see how often the FTC has engaged in this practice, which is exactly what FOIA is for—i.e., allowing the public to see what its government is up to), the Court would not require production of the letters’ boilerplate language because that information is already public and putting the FTC through that otherwise burdensome redaction exercise would be pointless. But, because it would make no sense to require the FTC to produce the letters with their dates but without the boilerplate text (which would require a more burdensome redaction process), the Court orders the FTC to produce both the boilerplate text and the dates.

12 expected perceptibly to interfere with an enforcement proceeding.” North v. Walsh, 881 F.2d

1088, 1097 (D.C. Cir. 1989).

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. As

explained above—and as the D.C. Circuit has observed—“‘the logic of FOIA’ mandates that

where information requested ‘is truly public, then enforcement of an exemption cannot fulfill its

purposes.’” Cottone, 193 F.3d at 554 (citation omitted). To the extent that Bloomberg 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. Def.’s Reply at 14. 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 Bloomberg 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 Bloomberg.

Unlike in FOIA cases where release of non-exempt information could allow the FOIA

requester to deduce sensitive exempt information, see, e.g., Montgomery v. Internal Revenue

Serv., 40 F.4th 702, 712 (D.C. Cir. 2022) (explaining that Glomar responses in the whistleblower

context are justified because if the Government only withheld documents when a whistleblower

13 existed, it would risk revealing the existence and identity of the whistleblower every time the

Government withheld documents, especially “when the pool of potential whistleblowers is very

small, leading a revenge-seeking requester to narrow down the informant with relative ease”);

C.I.A. v. Sims, 471 U.S. 159, 179 (1985) (upholding FOIA exemption where CIA explained how

disclosure of seemingly innocuous information would permit others to deduce sensitive exempt

information), here the FTC does not explain how the dates can be used to deduce sensitive

exempt information. The FTC provides no insight to the Court as to how third parties like

witnesses or others who do not have information about the non-public individualized content of

the FTC’s “close at your own peril” letters, could use the dates of those letters—which, to

reiterate, do not directly relate to the dates of pre-transaction notices—to gather information

enabling them to interfere with an ongoing FTC investigation. 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. Thus, the

FTC’s argument that the dates of “close at your own peril” letters would allow parties to deduce

other information is conclusory, speculative, and wholly unexplained. Nor has the FTC

demonstrated how revealing the dates the “close at your own peril” letters were sent might

decrease cooperation with the FTC. This assertion by the FTC is also speculative. Because the

FTC has not demonstrated that disclosure of the letters’ dates “could reasonably be expected

perceptibly to interfere with an enforcement proceeding,” North, 881 F.2d at 1097, the Court

holds that the dates of the letters are not exempt from disclosure under FOIA Exemption 7 and

that the dates of the letters are segregable and must be disclosed.

14 V. CONCLUSION

In summary, the individualized content of the “close at your own peril” letters that the

FTC has sent out—including the identities of the letters’ recipients—is exempt from disclosure

under FOIA Exemption 3. The non-individualized boilerplate language and dates of those

letters, however, are not exempt under either Exemption 3 or 7(A). Finally, the information that

Bloomberg has identified as already existing in the public domain—i.e., the identities of some

pre-transaction notice filers made public by the filers themselves—is not exempt from

disclosure.

Accordingly, for the foregoing reasons, the Court GRANTS IN PART AND DENIES

IN PART the FTC’s motion for summary judgment (ECF No. 11), and GRANTS IN PART

DENIES IN PART Bloomberg’s motion for summary judgment (ECF No. 14). An order

consistent with this Memorandum Opinion is separately and contemporaneously issued.

Dated: January 16, 2024 RUDOLPH CONTRERAS United States District Judge