The US Chamber of Commerce has filed a lawsuit against the Federal Trade Commission (FTC) claiming that the FTC has taken “unlawful and self-aggrandizing actions,” including counting votes from departed commissioners and coordinating with foreign governments, and unlawfully withholding internal records of these actions from the public.
The US Chamber, a business lobbying group, made information requests to the FTC under the Freedom of Information Act (FOIA), which requires agencies to release requested records to the public.
In the lawsuit filed on Thursday, the Chamber states that the FTC illegally denied four such requests by citing exemptions to FOIA requirements, and that these exemptions were invoked in error.
According to the Chamber, the FTC counted the votes of its former commissioner Rohit Chopra even after he had left the FTC. These “zombie” votes were used as tiebreakers for at least 20 issues, states the complaint.
The lawsuit states that the FTC denied the Chamber’s request to release Chopra’s voting records for being too “burdensome” to produce, in error because the request sought a “clear and well-defined universe of documents over a narrow time period.”
The second request was for all records related to counting zombie votes of former commissioners for a period of time after the former commissioners’ departure from the FTC. The FTC declined to release the records, citing deliberative-process privilege and the work-product doctrine; the lawsuit claims that these were not “inter-agency or intra-agency” records, hence the exemption did not apply.
The complaint also states that the FTC withheld records about a “highly unusual” process it undertook to block the merger of two American biotechnology companies. The FTC requested the European Commission to review the merger under EU law. It then used the European result as evidence in an internal administrative trial to block the merger. “There was little reason for international coordination among separate jurisdictions,” reads the complaint, claiming it was done to “avoid having to challenge the transaction on the merits, in court, under US law.”
The FTC denied the information release request on the grounds of FOIA Exemption 5: that a “consultant relationship” exists between it and foreign jurisdictions. The Chamber argues instead that the exemption excludes foreign governments.
Finally, current FTC Chair Lina Khan was previously employed by the FTC under the “Legal Fellow” position, which the Chamber views as being “highly unusual and not a typical title used in relationship to staff positions in support of a commissioner.”
The FTC requested extensions multiple times without setting forth an expected date, invoking “unusual circumstances.” The lawsuit claims the FTC failed to make a determination within the required timeline.