July 2, 2010

Anne L. Weismann Citizens for Responsibility and Ethics in Washington 1400 Eye Street, NW, Suite 450 Washington, D.C. 20005 Re: Freedom of Information Act Appeal (FOIA-2010-00641) Dear Ms. Weismann: This letter responds to your June 7, 2010 letter ("CREW Appeal"), which we received on June 8,2010, appealing the May 12,2010 and June 3,2010 determinations on your April 16, 2010 Freedom ofInformation Act ("FOIA") request. In your request, you sought complaints against the American Veterans Relief Foundation ("AVRF"), the Coalition of Police and Sheriffs ("COPS"), the Disabled Firefighters Fund ("DFF"), and for-profit fundraisers run by David Scott Marleau and companies associated with him (hereinafter collectively "OFC Defendants"). In the May 12,2012 determination, Ms. Arianne Perkins provided a partial response, enclosing approximately 200 pages of responsive documents I and withholding three pages. In the June 3, 2010 determination, Ms. Joan Fina noted the location of an additional approximately 730 pages of responsive documents and withheld them all. Both letters withheld these records pursuant to FOIA Exemption 3,5 U.S.C. § 552(b)(3), by reason of Section 21(f) of the FTC Act, 15 U.S.C. § 57b-2(f). That section provides that "[a]ny material which is received by the Commission in any [law enforcement] investigation ... and which is provided pursuant to any compulsory process ... or which is provided voluntarily in place of such compulsory process" is exempt from disclosure under the FOIA. Id. For the reasons set forth below, I am partially granting and partially denying your appeal.
In your appeal, you argue that the FTC has not adequately shown that the withheld records are within the scope of Section 21(f) of the FTC Act, citing the requirements set forth in A. Michael's Piano, Inc. v. FTC, 18 F.3d 138, 145-46 (2d Cir. 1994). Specifically, you argue the letters give no indication that the complaints were provided to the FTC in response to a request from the agency, that they were provided as part of an ongoing investigation, or that the FTC could have issued a subpoena compelling their production had the submitter refused to comply with a request from the FTC for the records.

I In providing the 200 pages, Ms. Perkins denied access and redacted consumer names, addresses, and other identifying information under FOIA Exemption 6, 5 U.S.C. § 552(b)(6). You have not appealed the determination to withhold this information.

First, the materials identified in and withheld by the May 12 letter were properly withheld under the FOIA. These materials reflect a consumer complaint submitted to Consumer Sentinel by a foreign government agency, and are thus exempt from disclosure under the FOIA by reason of Section 21(t)(2)(A)(iii) of the FTC Act, 15 U.S.C. § 57b-2(t)(2)(A)(iii). As such, the documents were properly withheld pursuant to FOIA Exemption 3(B). Second, with respect to the approximately 730 pages of responsive documents identified in and withheld by the June 3 letter, there are two types of materials at issue. First, in my discretion, I have determined to release approximately 40 pages of consumer complaints received from a state agency in connection with the investigation notwithstanding the possible applicability of Section 21 (f). These documents are enclosed, with consumer names, addresses, and other identifying information redacted from these documents pursuant to FOIA Exemption 6,5 U.S.C. § 552(b)(6). The remainder of these documents were properly withheld under Section 21(t)(1) of the FTC Act. These documents were requested by and provided to the Commission in place of compulsory process and were relevant to an ongoing law enforcement investigation. Therefore, under the requirements of A. Michael's Piano, the responsive documents were properly withheld pursuant to Section 21(t)(l) of the FTC Act. Insofar as you object to the June 3 determination for not providing specific information concerning the responsive documents, there is no requirement that administrative responses to FOIA requests contain the same material that would be necessary in litigation. Crooker v. CIA, No. 83-1426, 1984 U.S. Dist. LEXIS 23177, at *3-4 (D.D.C. Sept. 28, 1984); see also Judicial Watch, Inc. v. Clinton, 880 F. Supp. 1, 11-12 (D.D.C. 1995).2 As required by the FOIA, you are hereby advised that judicial review of this decision may be obtained under 5 U.S.C. § 552(a)(4)(B), in a United States District Court in the district where you reside or have your principal place of business, or in the District of Columbia Also, as required by the FOIA, you are hereby advised that I am the designated official responsible for deciding your appeal.

Willard K. Tom General Counsel Enclosure: redacted documents

2 Regarding your reference to the FTC's processing of a prior CREW FOIA request (FOIA No. 2009-1227), there are substantial differences between the 1,100 pages of redacted consumer complaints I released in that appeal and the materials being withheld pursuant to the instant FOIA request. Indeed, you have already received approximately 200 pages of redacted consumer complaint consistent with my decision on your prior appeal. 2