A U.S. District Court has settled a FOIA dispute between the New York Times and the FCC over the latter's Restoring Internet Freedom Docket, issuing a summary judgment in favor of the Times and saying "[n]one of the agency's defenses to production are persuasive." 

Related: GAO Says Comment Docket Remains Vulnerable

"In this case, the public interest in disclosure is great because the importance of the comment process to agency rulemaking is great," the court said, adding: "If genuine public comment is drowned out by a fraudulent facsimile, then the notice-and-comment process has failed. Disclosing the requested data in this case informs the public understanding of the operations and activities of government in two ways -- at themicro level with regard to the integrity of the FCC’s repeal of the particular net neutrality rules at issue, and at the macro level with regard to the vulnerability of agency rulemaking in general."

The paper back in 2017 had sought server logs related to the comments posted in the net neutrality docket given the volume of bogus filings. After discussing the scope of the request, the Times narrowed its request to IP addresses and device-specific information (User-Agent headers), reducing the amount of information that the FCC would have to produce. 

Related: FCC Net Neutrality Docket Heats Up...Again

After the Times did not get a response to the request, it filed suit in September 2018 in the U.S. District Court for the Southern District of New York. The FCC stated that the information the Times wanted contained material exempt from FOIA and that it was too tough to separate that out from the info that could be provided, and, so, because "producing the requested information is unreasonably burdensome and unreliable," the court summarized the FCC's argument, "FOIA does not require compliance." 

The Times sought a summary judgment from the court--before a trial on the facts--and the FCC filed its own counter petition for summary judgment. Since the facts were not in dispute, said the court, and since summary judgment is the preferred route for FOIA disputes, it made its ruling Friday (May 1). 

The court denied the Times' request for the FCC to pay attorneys fees. The Times is eligible for such compensation and the court said it was free to make the case for why it should get it. 

A spokesperson for FCC chairman Ajit Pai had no comment. 

"Litigation should not have been necessary to get this vital information," said Andrew Schwartzman, senior counselor, Benton Institute for Broadband & Society. "I hope the Commission will now comply promptly rather than drag things out with appeals that will not succeed." 

On the same day (June 30) that the National Association of Broadcasters filed a FOIA request with the FCC seeking the data the commission used to justify continued broadcast ownership regulations, the President signed a bill into law that should boost government responsiveness to such requests.

With House approval by voice vote June 13, both Houses of Congress passed the FOIA Improvement Act, requiring the government to presume openness when considering the release of information under the Freedom of Information Act (FOIA).

In addition to making openness the "default setting" for FOIA requests from journalists and the public, the bill: "places a 25-year sunset on the government’s ability to withhold certain documents that demonstrate how the government reaches decisions, which now can be withheld indefinitely from the public...requires agencies to make publicly available documents that have been requested and released three or more times under FOIA, and empowers the office of Government Information Services to better address FOIA issues through additional independence."

“From day one, my biggest priority in Congress has been to make government more open and responsive to the people it’s supposed to serve," said bill co-sponsor Darrell Issa (R-Calif.), who co-sponsored the bill ( Rep. Elijah Cummings [D-Md.] was the other principal co-sponsor). "I’m proud to finally see these bipartisan reforms, which I’ve been fighting to implement for years, become a reality.”

“This critical update to the Freedom of Information Act is a major milestone that enshrines into law the people’s right to know what their government is actually doing. It’s a significant step forward to the accountable government the people deserve.”

"The stroke of the President's pen could serve as a catalyst to the federal agencies who were slow do adopt, much less, apply open government standards," said The Sunlight Foundation. "As the United States prepares to transition into a new executive branch, it is vital that the current administration bring America's open government into the 21st century."

“Early in his tenure, President Obama boasted that his administration would be the most transparent in our nation’s history," said Sen. Charles Grassley (R-Iowa), chairman of the Senate Judiciary Committee. "Unfortunately, under his leadership, the government has fallen woefully short of this promise.  To make matters worse, when members of the press and other Americans try to compel the government to hand over public records, federal agencies often come up with any number of excuses not to comply.  Well, the public’s work ought to be public, and the government’s default should always be in favor of transparency unless it can demonstrate a sound reason, backed up by law, to withhold information.

“With only about 200 days left in office, the president today finally took an important step toward making good on his promise by signing the bipartisan FOIA Improvement Act. This bill, which was the first bill I moved out of the Judiciary Committee, requires the bureaucracy to adopt a presumption of openness when processing Freedom of Information Act requests,” Grassley said.

He also said he would be holding a hearing this month on "trends" in government compliance as the FOIA law turns 50.