UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CENTER FOR INVESTIGATIVE REPORTING, Civil Action No. 18-2901 (BAH) Plaintiff, Chief Judge Beryl A. Howell v.

U.S. CUSTOMS AND BORDER PROTECTION and U.S. DEPARTMENT OF HOMELAND SECURITY,

Defendants.

MEMORANDUM OPINION

The plaintiff, Center for Investigative Reporting, a “nonprofit investigative journalism

organization,” Compl. ¶ 2, ECF No. 1, challenges the response of the defendants—the U.S.

Department of Homeland Security and its component agency, U.S. Customs and Border

Protection (“CBP”)—to a request submitted pursuant to the Freedom of Information Act

(“FOIA”),

, for “[a]ny and all submissions, records, documents, white papers,

memoranda and/or alike material related to border fence/border wall contract proposals,”

Compl., Ex. A, Pl.’s FOIA Request (“FOIA Request”), ECF No. 1-1. The parties have now

cross-moved for summary judgment. Defs.’ Mot. Summ. J., ECF No. 14; Pl.’s Opp’n Defs.’

Mot. & Cross-Mot. Summ. J. (“Pl.’s Cross-Mot.”), ECF Nos. 15, 16. For the reasons set forth

below, summary judgment is granted to the defendants with respect to the information withheld

pursuant to FOIA Exemptions 3, 6, 7(C), and 7(E), which withholdings are no longer challenged

by the plaintiff. Both the defendants’ motion and the plaintiff’s motion, however, are denied,

without prejudice, with respect to the withholdings under FOIA Exemptions 4 and 5, which

present novel issues about the FOIA Improvement Act of 2016, the Supreme Court’s recent 1 decision in Food Marketing Institute v. Argus Leader Media,

(2019), and the

interrelation between these two recent developments in the law.

I. BACKGROUND

The FOIA request at issue seeks records related to “the first implementation of President

Donald Trump’s intention to build an updated border wall.” Compl. ¶ 9. Specifically, on March

17, 2017, CBP issued two Requests for Proposals (“RFPs”) “to design and build prototypes for a

new border wall on the U.S.-Mexico border near Chula Vista, California.” Compl. ¶ 7; see Decl.

of Shari Suzuki, CBP’s Chief of the FOIA Appeals, Policy and Litigation Branch (“Suzuki

Decl.”) ¶ 7, ECF No. 14-3. In response, potential contractors (“bidders” or “submitters”)

submitted to CBP over 150 proposals, see Suzuki Decl. ¶ 14, which “included potential designs

and materials to be used in construction, as well as more basic information about which

companies were submitting proposals,” Compl. ¶ 8.

The following month, on April 24, 2017, the plaintiff filed a FOIA request for “[a]ny and

all submissions, records, documents, white papers, memoranda and/or alike material related to

border fence/border wall contract proposals.” FOIA Request. After conducting a search, the

defendants located 6,762 pages of responsive records in three CBP components. Suzuki Decl. ¶¶

11, 15. First, CBP’s Office of Acquisition (“OA”), which “was responsible for overseeing the

requests for proposals that are the subject of [the plaintiff’s] request,” id. ¶ 13, found 990 pages

of responsive records, 946 pages of which were released in full and 44 pages in part, id. The OA

responsive records “primarily consist of the successful proposals that were selected for contract

award.” Id. Next, CBP’s Office of Facilities and Asset Management (“OFAM”), which

“manages CBP’s facilities and tactical infrastructure portfolios including fencing along the

Southwest border,” id. ¶ 12, found 101 pages of responsive records, 1 page of which was

2 released in full, 1 page of which was released in part, and 99 pages of which were withheld in

full, id. The OFAM responsive records are predominantly made up of internal documents

relating to the border wall. See id. ¶¶ 12, 28. Lastly, CBP’s Office of Information Technology

(“OIT”), which, inter alia, managed the email account that “served as the primary point of

contact between the public and CBP for matters related to the border wall RFP’s that are the

subject of [the plaintiff’s] request, including the submission of proposals,” id. ¶ 14, found 5,671

pages of responsive records, id. Those records largely “consist[] of 152 unsuccessful proposals

(i.e., the proposals that were not selected by CBP to be awarded a contract),” as well as emailed

“questions and responses pertaining to the RFP’s.” Id. 72 pages of those records were released

in full, while 5,489 pages were withheld in full and 110 pages withheld in part. Id. In sum, of

the 6,762 pages of responsive records located in these three CBP offices, the defendants released

1,019 pages in full and 155 pages in part, and withheld 5,588 pages in full. Id. ¶ 15.

The defendants rely on FOIA Exemptions 3, 4, 5, 6, 7(C), and 7(E) as the basis for the

redactions and withholdings, as set out in the defendants’ Vaughn Index, see Suzuki Decl., Ex.

A, Vaughn Index, ECF No. 14-3,1 and further explained in two declarations from Sharon Suzuki,

the Chief of CBP’s FOIA Appeals, Policy and Litigation Branch, see Suzuki Decl.; Suppl. Decl.

of Shari Suzuki, CBP’s Chief of the FOIA Appeals, Policy and Litigation Branch (“Suppl.

Suzuki Decl.”), ECF No. 17-1. The plaintiff does not contest the withholdings under

Exemptions 3, 6, 7(C), and 7(E), see Pl.’s Cross-Mot. at 1; Pl.’s Reply Supp. Pl.’s Cross-Mot.

(“Pl.’s Reply”) at 2 n.2, ECF No. 20, which exemptions account for all of the OA withheld

1 “A Vaughn index describes the documents withheld or redacted and the FOIA exemptions invoked, and explains why each exemption applies.” Prison Legal News v. Samuels,

, 1145 n.1 (D.C. Cir. 2015). Pin citations to the defendants’ Vaughn Index in this opinion refer to the document number that the defendants assigned to a document or set of documents.

3 records and the bulk of the OIT withheld pages.2 The plaintiff, however, challenges the

defendants’ decision to redact, pursuant to Exemptions 4 and 5, 110 pages of emails to CBP,

found by OIT, asking questions and expressing concerns about the RFPs, see Vaughn Index # 25,

and to withhold, pursuant to Exemption 5, 106 pages of internal OFAM and OIT documents

relating to the border wall, see

## 3, 6–18, 20–21, 23–24, for a total of 216 challenged pages.3

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 56, summary judgment shall be granted “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). “In FOIA cases, summary judgment may

be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather

than merely conclusory statements, and if they are not called into question by contradictory

evidence in the record or by evidence of agency bad faith.” Aguiar v. DEA,

, 734–

35 (D.C. Cir. 2017) (internal quotation marks omitted) (quoting Judicial Watch, Inc. v. U.S.

Secret Serv.,

(D.C. Cir. 2013)); see also Students Against Genocide v. Dep’t of

State,

(D.C. Cir. 2001) (“[A]n agency is entitled to summary judgment if no

material facts are in dispute and if it demonstrates ‘that each document that falls within the class

requested either has been produced or is wholly exempt from the Act’s inspection

requirements.’” (quoting Goland v. CIA,

(D.C. Cir. 1978))). Most FOIA cases

will be resolved on summary judgment. Brayton v. Office of the U.S. Trade Representative,

(D.C. Cir. 2011).

2 For instance, the plaintiff concedes that 5,482 of the 5,588 withheld pages are bidders’ proposals, see Vaughn Index # 26, properly withheld pursuant to Exemption 3, see Pl.’s Cross-Mot. at 1. 3 The 110 pages of emails were redacted pursuant to Exemptions 4, 5, 6, and 7(C). Vaughn Index # 25. The defendants fail to specify how many of the pages contain redactions pursuant to Exemptions 4 and 5, which remain at issue, as opposed to Exemptions 6 and 7(C), about which there is no dispute. See

Consequently, in any further review of the propriety of withholdings, the defendants are directed to identify the specific basis for withholding for each redaction on the 110 pages.

4 FOIA was enacted “to promote the ‘broad disclosure of Government records’ by

generally requiring federal agencies to make their records available to the public on

request.” DiBacco v. U.S. Army,

(D.C. Cir. 2015) (quoting U.S. Dep’t of

Justice v. Julian,

(1988)). To balance the public’s interest in governmental

transparency and “legitimate governmental and private interests [that] could be harmed by

release of certain types of information,” Judicial Watch, Inc. v. U.S. Dep’t of Defense,

(D.C. Cir. 2019) (internal quotation mark omitted) (quoting FBI v. Abramson,

(1982)), FOIA has nine exemptions, set forth in

(b), which “are

‘explicitly made exclusive’ and must be ‘narrowly construed,’” Milner v. Dep’t of the Navy,

, 565 (2011) (citations omitted) (first quoting EPA v. Mink,

(1979); and

then quoting Abramson,

). “[T]hese limited exemptions do not obscure the basic

policy that disclosure, not secrecy, is the dominant objective of the Act.” Dep’t of the Air Force

v. Rose,

(1976).

FOIA authorizes federal courts to “enjoin the agency from withholding agency records

and to order the production of any agency records improperly withheld from the complainant.”

(a)(4)(B). District courts must “determine de novo whether non-disclosure was

permissible.” Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec.,

(D.C.

Cir. 2015). “FOIA places the burden ‘on the agency to sustain its action,’ and the agency

therefore bears the burden of proving that it has not ‘improperly’ withheld the requested

records.” Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice,

(D.C. Cir. 2019) (citations omitted) (first quoting

(a)(4)(B); and then quoting

U.S. Dep’t of Justice v. Tax Analysts,

, 142 n.3 (1989)); see also U.S. Dep’t of

Justice v. Landano,

(1993) (noting that “[t]he Government bears the burden of

5 establishing that the exemption applies”). 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.’” Pub. Citizen Health Research Grp. v. FDA,

, 904–05 (D.C. Cir. 1999) (alterations in original) (quoting Nat’l Ass’n of Gov’t

Emps. v. Campbell,

(D.C. Cir. 1978)).4

III. DISCUSSION

The defendants’ withholdings under both Exemption 4 and Exemption 5 implicate

FOIA’s relatively new statutory “foreseeable harm” requirement. The parties’ briefing primarily

addressed that requirement in discussion of Exemption 5, and thus that exemption is considered

first.

A. Exemption 5

FOIA Exemption 5 protects from disclosure “inter-agency or intra-agency memorandums

or letters that would not be available by law to a party other than an agency in litigation with the

agency.”

(b)(5). This exemption “incorporates the privileges that the

Government may claim when litigating against a private party, including the governmental

4 The defendants suggest that “each fact” claimed in their Statement of Material Facts should be treated “as conceded” because the plaintiff failed to controvert the alleged facts in an opposing statement. Defs.’ Reply Supp. Defs.’ Mot. & Opp’n Pl.’s Cross-Mot. (“Defs.’ Opp’n”) at 2 n.2 (citing LCvR 7(h)(1)), ECF Nos. 17, 18. Yet, “on a summary judgment motion, ‘[f]acts not conclusively demonstrated, but essential to the movant’s claim, are not established merely by his opponent’s silence,” Niagara Mohawk Power Corp. v. U.S. Dep’t of Energy,

(D.C. Cir. 1999) (alteration in original) (quoting Nat’l Assoc. of Gov’t Emps. v. Campbell,

, 1027 (D.C. Cir. 1978)) (reversing grant of summary judgment on FOIA Exemption 4 claim), and “the District Court ‘must always determine for itself whether the record and any undisputed material facts justify granting summary judgment,’” Figueroa v. Pompeo,

(D.C. Cir. 2019) (quoting Winston & Strawn, LLP v. McLean,

(D.C. Cir. 2016)). Here, the briefing makes clear those material facts continue to be disputed by the plaintiff. See, e.g., Pl.’s Cross-Mot. at 3–5 (contesting defendants’ claim as to harm that would be caused by release of withheld commercial information);

at 6–9 (contesting defendants’ claims as to harm that would be caused by disclosure of withheld internal documents).

6 attorney-client and attorney work product privileges, the presidential communications privilege,

the state secrets privilege, and the deliberative process privilege.” Abtew v. U.S. Dep’t of

Homeland Sec.,

(D.C. Cir. 2015). Here, the defendants invoke the

deliberative process privilege, which permits an agency to withhold “documents reflecting

advisory opinions, recommendations and deliberations comprising part of a process by which

governmental decisions and policies are formulated,” Dep’t of the Interior v. Klamath Water

Users Protective Ass’n,

, 8–9 (2001) (internal quotation marks omitted) (quoting

NLRB v. Sears, Roebuck & Co.,

(1975)), in order that agencies may “craft

better rules when their employees can spell out in writing the pitfalls as well as strengths of

policy options, coupled with the understanding that employees would be chilled from such

rigorous deliberation if they feared it might become public,” Judicial Watch, Inc. v. U.S. Dep’t of

Defense,

(D.C. Cir. 2017).

Pursuant to Exemption 5, the defendants have withheld in full 18 documents totaling 106

pages. See Vaughn Index ## 3, 6–18, 20–21, 23–24. These documents include, according to the

defendants, “the interagency acquisitions supplement, best procurement approach for assisted

acquisitions document, terms and conditions for assisted acquisitions document, border wall

funding spreadsheets, interagency agreements, proposed responses to Congressional questions

with edits, draft border wall communication and outreach strategy plan and outline, internal

white paper documents pertaining to acquiring prototype wall designs, schedules pertaining to

border wall matters, an internal risk register, [and] U.S. Border Patrol facilities and tactical

infrastructure and Air and Marine PMO wall project requirement document.” Suzuki Decl. ¶ 28.

Additionally, the defendants have withheld, via redaction, portions of 110 pages of emails to

CBP asking questions and expressing concerns about the RFPs. See Vaughn Index # 25.

7 While not expressly conceding that this withheld information is covered by the

deliberative process privilege, the plaintiff makes little effort to dispute that claim. See Pl.’s

Cross-Mot. at 6–9; Pl.’s Reply at 4–5. Instead, the plaintiff focuses its Exemption 5 arguments

on the “foreseeable harm” requirement added to FOIA by the FOIA Improvement Act of 2016.

See, e.g., Pl.’s Cross-Mot. at 6. This choice is not surprising. As discussed infra in Part

III.A.2.a., the foreseeable-harm requirement is a “heightened standard,” Judicial Watch, Inc. v.

U.S. Dep’t of Commerce (Judicial Watch I),

(D.D.C. 2019), and thus a

FOIA requester may perceive a foreseeable-harm argument to be easier to advance than an

argument about whether a FOIA exemption applies at the outset. Focusing exclusively on

foreseeable harm, however, risks conflating an agency’s failure to establish the basis for an

exemption with failure to demonstrate foreseeable harm. In any event, the grant of summary

judgment is inappropriate to any party unless the court is assured the record justifies this result,

see Figueroa,

, and thus whether the withheld documents fall within Exemption

5’s scope is considered first, before turning to foreseeable harm.

1. The Defendants Have Failed to Establish that Exemption 5 Applies

“To qualify for the deliberative process privilege, an intra-agency memorandum must be

both pre-decisional and deliberative.” Abtew,

(citing Coastal States Gas Corp.

v. Dep’t of Energy,

(D.C. Cir. 1980)). “A document is ‘predecisional’ if it

precedes, in temporal sequence, the ‘decision’ to which it relates,”

(internal quotation marks

omitted) (quoting Senate of P.R. v. U.S. Dep’t of Justice,

(D.C. Cir. 1987)), or

was “‘prepared in order to assist an agency decisionmaker in arriving at his decision,’ rather than

to support a decision already made,” Petroleum Info. Corp. v. U.S. Dep’t of the Interior,

(D.C. Cir. 1992) (quoting Renegotiation Bd. v. Grumman Aircraft,

(1975)). Deliberative, in this context, means the record is “a part of the agency give-

and-take—of the deliberative process—by which the decision itself is made.” Abtew,

(internal quotation marks omitted) (quoting Vaughn v. Rosen,

(D.C.

Cir. 1975)).

To gauge whether the deliberative-process privilege has been asserted appropriately, the

government must explain, for each withheld record, at least, “(1) ‘what deliberative process is

involved,’ (2) ‘the role played by the documents in issue in the course of that process,’ and (3)

‘the nature of the decisionmaking authority vested in the office or person issuing the disputed

document[s], and the positions in the chain of command of the parties to the documents.’” Ctr.

for Biological Diversity v. EPA,

, 147 (D.D.C. 2017) (citations omitted) (first

quoting Senate of P.R., 823 F.2d at 585–86; then quoting id.; and then quoting Elec. Frontier

Found. v. U.S. Dep’t of Justice,

(D.D.C. 2011)). The government, not

the requester, must identify the deliberative process to which any record relates. 100Reporters

LLC v. U.S. Dep’t of Justice,

(D.D.C. 2017) (citing Coastal States,

).

Here, the defendants’ Exemption 5 withholdings are insufficiently explained in three

critical respects: the deliberative process to which the withheld records relate, the

decisionmaking authority, and the chronology.

a. The Defendants’ Descriptions of the Deliberative Process

“[T]o approve exemption of a document as predecisional, a court must be able ‘to

pinpoint an agency decision or policy to which the document contributed.’” Senate of P.R.,

(quoting Paisley v. CIA,

(D.C. Cir. 1983)); see also Hunton &

Williams LLP v. EPA,

(D.D.C. 2017) (“To justify its application of the

9 deliberative process privilege, an agency must address . . . the nature of the specific deliberative

process involved . . . . ” (internal quotation marks omitted) (quoting Nat’l Sec. Counselors v.

CIA,

(D.D.C. 2013))); Trea Senior Citizens League v. U.S. Dep’t of

State,

(D.D.C. 2013) (“[A] broad and opaque description of the

deliberative process involved does not provide the Court with enough detail about whether these

documents are deliberative and predecisional.”); Elec. Frontier Found.,

(“The Court finds this description inadequate because it fails to identify a specific

deliberative process to which the withheld email messages contributed.”). Indeed, the D.C.

Circuit has said that “[t]he failure to specify the relevant final decision constitutes a sufficient

ground for remanding [Exemption 5 deliberative process claims] to the district court.” Senate of

P.R.,

. “Without a sufficiently specific affidavit or Vaughn Index, a court cannot

decide, one way or the other, a deliberative process privilege claim.” Elec. Frontier Found.,

(internal quotation marks omitted) (quoting Judicial Watch v. USPS,

(D.D.C. 2004)).

The defendants maintain that the documents withheld pursuant to Exemption 5

contributed to “administering the evolving and ongoing border wall contracting, procurement,

and construction process.” Suzuki Decl. ¶ 30; see also, e.g., Vaughn Index # 3 (stating that

documents were “part of administering the border wall contracting, procurement, and

construction process”). An agency, the defendants argue, often “generate[s] memoranda

containing recommendations which do not ripen into agency decisions,” and thus the deliberative

process privilege protects documents that “compris[e] part of a process by which governmental

decisions and policies are formulated.” Suzuki Decl. § 29 (internal quotation marks omitted)

(quoting Sears,

, 151 n.18). Such application of the deliberative process privilege

10 is called for here, the defendants further contend, because the withheld documents “contain

information under consideration by CBP as the agency moved towards a decision on how to

administer the evolving process.” Id. ¶ 30.

The defendants have failed to identify the final decisions to which the withheld

documents pertain. While the defendants are correct that the deliberative process privilege

applies to documents that have not yet resulted in an agency decision, the withheld records here

“may in fact pertain to a litany of subsidiary decisions that defendants fail to acknowledge.”

Judge Rotenberg Educ. Ctr., Inc. v. FDA,

(D.D.C. 2019); see also

100Reporters LLC¸ 248 F. Supp. 3d at 153 (rejecting agency argument that “would create a four-

year umbrella effectively shielding all agency action from review without accounting for any

subsidiary agency decisions”). The defendants’ own declaration refers to the “ongoing process”

to which the documents relate as a three-fold “contracting, procurement, and construction

process.” Suzuki Decl. ¶ 30 (emphasis added). Moreover, some of the document descriptions in

the defendants’ Vaughn Index create the impression that the documents at issue might

themselves be final subsidiary agency decisions. See, e.g., Vaughn Index # 8 (“The unsigned

documents set forth terms and conditions governing assisted acquisitions.”). In short, the

defendants have not identified the “subsidiary decisions that fall underneath the nebulous

umbrella process [they] ha[ve] purported to identify,” 100Reporters LLC, 248 F. Supp. 3d at

153, and thus they have not carried their burden.

b. The Defendants’ Descriptions of Decisionmaking Authority

Explaining decisionmaking authority is an essential ingredient to justifying withholdings

under the deliberative process exemption. The D.C. Circuit has been clear that “[a] key feature

under both the ‘predecisional’ and ‘deliberative’ criteria is the relation between the author and

11 recipients of the document. A document from a junior to a senior is likely to reflect his or her

own subjective opinions and will clearly have no binding effect on the recipient. By contrast,

one moving from senior to junior is far more likely to manifest decisionmaking authority and to

be the denouement of the decisionmaking rather than part of its give-and-take.” Access Reports

v. Dep’t of Justice,

(D.C. Cir. 1991); see also Arthur Andersen & Co. v.

IRS,

(D.C. Cir. 1982) (“To establish that documents do not constitute the

‘working law’ of the agency, the agency must present to the court . . . ‘the nature of the

decisionmaking authority vested in the office or person issuing the disputed document(s),’ . . .

and the positions in the chain of command of the parties to the documents.” (quoting Taxation

With Representation Fund v. IRS,

(D.C. Cir. 1981))); Assassination Archives

& Research Ctr. v. CIA,

, 13 (D.C. Cir. 2019) (per curiam) (“[W]e have

described a ‘recommendation to a supervisor on a matter pending before the supervisor’ as ‘a

classic example of a deliberative document.’” (quoting Abtew,

)).

The defendants have made essentially no effort to satisfy the “key feature” by identifying

“the relation between the author and recipients of the document.” Access Reports,

. Indeed, in almost every instance the defendants have “wholly omitted information about

the positions and responsibilities of the authors and recipients . . . of the records.” Judge

Rotenberg Educ. Ctr.,

(internal quotation marks omitted). True, the

defendants note that some of the documents at issue are unsigned, see Vaughn Index ## 3, 6–9,

13, but the defendants do not make this claim for every document withheld or redacted pursuant

to Exemption 5, see Vaughn Index ## 10–12, 14–18, 20–21, 23–25. For the latter records, the

defendants still do not identify the author to assess the deliberative nature of the contents. Nor

have the defendants explained (1) whether they have other ways to identify the authors of the

12 unsigned documents and (2) why the absence of author signatures prevents the defendants from

being able to identify the recipients of the documents. Accordingly, the defendants have again

failed to explain the basis for the exemption well enough to assess whether it has been properly

claimed.

c. The Defendants’ Descriptions of the Chronology

As noted, for a document to qualify for the deliberative process privilege, it must

“precede[], in temporal sequence, the ‘decision’ to which it relates.” Abtew,

(internal quotation mark omitted) (quoting Senate of P.R.,

). To ensure that this

chronology is established, “typically, a comprehensive Vaughn index will at least include . . . [a

document’s] date.” Ctr. for Biological Diversity, 279 F. Supp. 3d at 144. While “there is no

fixed rule establishing what a Vaughn index must look like,” ACLU v. CIA,

(D.C. Cir. 2013), and “an agency need not even create a Vaughn Index to justify withholdings,”

Judge Rotenberg Educ. Ctr.¸

, an agency must establish the chronological

relation between the document and the relevant decision with “specificity and [in] detail,” Senate

of P.R.,

(alteration in original) (internal quotation marks omitted) (quoting

Parke, Davis & Co. v. Califano,

(6th Cir. 1980)). Given that the defendants have

not identified the specific final agency decisions to which the documents withheld and redacted

pursuant to Exemption 5 relate, they have, by extension, failed to establish that the documents

predated those final decisions.

***

The defendants have not shown that the documents withheld and redacted pursuant to

Exemption 5 are covered by the deliberative process privilege. The insufficiencies in the

defendants’ Vaughn Index and declarations are such that in camera review may prove necessary.

13 Nevertheless, the defendants will be allowed another opportunity to supplement the record to

avoid that step.

2. The Defendants Have Not Demonstrated Foreseeable Harm

The defendants have also failed to satisfy FOIA’s “foreseeable harm” requirement.

Review of the origins of the foreseeable-harm requirement and the limited caselaw to date

considering its application is helpful in demonstrating the insufficiency of the defendants’

foreseeable-harm justification.

a. The Foreseeable-Harm Requirement

The foreseeable-harm requirement began not as a creation of the Legislative Branch, but

of the Executive. Upon assuming office in 2009, then-President Barack Obama issued direction

to Executive Branch agencies on implementation of FOIA. Emphasizing that FOIA reflects a

“profound national commitment to ensuring an open Government,” he instructed agencies to

administer FOIA “with a clear presumption: In the face of doubt, openness prevails.”

Memorandum on the Freedom of Information Act,

, 4683 (Jan. 21, 2009)

[hereinafter 2009 Presidential Memorandum].

Shortly thereafter, then–Attorney General Eric Holder implemented the President’s

directive by establishing the foreseeable-harm requirement. See Memorandum from Eric Holder,

Attorney Gen., U.S. Dep’t of Justice, to Heads of Exec. Dep’ts & Agencies (Mar. 19, 2009),

https://www.justice.gov/sites/default/files/ag/legacy/2009/06/24/foia-memo-march2009.pdf

[hereinafter 2009 DOJ Memorandum]. In his memorandum to Executive Branch agencies,

Attorney General Holder explained that to “realize[]” the “presumption of openness” “in

practice,” “an agency should not withhold information simply because it may do so legally” or

“merely because it can demonstrate, as a technical matter, that the records fall within the scope

14 of a FOIA exemption.”

(capitalization altered). Rather, the Department of Justice would

now “defend a denial of a FOIA request only if (1) the agency reasonably fores[aw] that

disclosure would harm an interest protected by one of [FOIA’s] statutory exemptions, or (2)

disclosure [was] prohibited by law.”

.

Despite the Executive Branch’s efforts to self-regulate, Congress remained concerned

that “agencies [we]re overusing FOIA exemptions that allow, but do not require, information to

be withheld from disclosure.” S. REP. NO. 114-4, at 2 (2015), as reprinted in 2016 U.S.C.C.A.N.

321, 322; see also H.R. REP. NO. 114-391, at 9 (2016) (“Unfortunately, there is concern that

agencies are overusing these exemptions to protect records that should be releasable under the

law.”).5 While some agencies had “made an effort to comply with the letter of the law, very few

ha[d] complied with the spirit of the law,” and had instead “taken advantage of [FOIA’s]

exemptions to withhold any information that might technically fit,” 162 CONG. REC. H3717

(2016) (statement of Rep. Meadows), resulting in a “growing and troubling trend” of invoking

FOIA exemptions “even though no harm would result from disclosure,’” S. REP. NO. 114-4, at 3.

Congress was especially concerned about agencies’ reliance on Exemption 5 and the

deliberative process privilege. The Senate Report, for instance, noted that agencies had invoked

Exemption 5 “more than 79,000 times in 2012—a 41% increase from the previous year.”

The House Report, similarly, pointed to “[e]xemption five . . . as a particularly problematic

5 The version of the legislation reported by the House Committee on Oversight and Government Reform placed the new foreseeable-harm requirement within subsection 552(b), rather than 552(a), and used slightly different language. See H.R. REP. NO. 114-391, at 32 (amending the last paragraph of

(b) to add: “An agency may not withhold information under this subsection unless such agency reasonably foresees that disclosure would cause specific identifiable harm to an interest protected by an exemption, or if disclosure is prohibited by law.”). By contrast, the foreseeable-harm requirement reported by the Senate Judiciary Committee is identical to the enacted version in placement and closely tracks the enacted language, which was introduced as a substitute amendment by two of the Senate sponsors and passed by unanimous consent in the Senate. See 162 CONG. REC. S1508–10 (2016). Consequently, review of the legislative history regarding implementation of the foreseeable-harm requirement relies most heavily on the Senate Report.

15 exemption,” and explained further that “[t]he deliberative process privilege is the most used

privilege and the source of the most concern regarding overuse.” H.R. REP. NO. 114-391, at 10

(“Some have taken to calling [Exemption 5] the ‘withhold it because you want to’ exemption.”).6

The solution to this problem, Congress decided, was to make the “presumption of

openness” established by the 2009 Presidential Memorandum “a permanent requirement for

agencies, with respect to FOIA.”

; see also S. REP. NO. 114-4, at 7 (explaining that the

FOIA Improvement Act adopts “the policy established for releasing Government information

under FOIA by President Obama when he took office in January 2009 and confirmed by

Attorney General Holder in a March 19, 2009, Memorandum to all Executive Departments and

Agencies”). Doing so, Congress believed, would ensure that “the content of a particular record

[w]ould be reviewed and a determination made as to whether the agency reasonably foresees that

disclosing that particular document, given its age, content, and character, would harm an

interested protected by the applicable exemption.” S. REP. NO. 114-4, at 8. It would also,

Congress explained, ensure that agencies could not withhold documents based on “mere

‘speculative or abstract fears,’ or fear of embarrassment.”

(quoting 2009 Presidential

Memorandum, 74 Fed. Reg. at 4683).

Accordingly, the FOIA Improvement Act “codified the ‘foreseeable harm’ standard

established in 2009 by then Attorney General Holder for defending agency decisions to withhold

6 To further address concern about overuse of Exemption 5’s deliberative process privilege, the FOIA Improvement Act also added a sunset provision to limit the applicability of this privilege, which “shall not apply to records created 25 years or more before the date on which the records were requested.”

(b)(5). Earlier versions of the legislation reported by both the Senate Judiciary Committee and House Committee on Oversight and Government Reform would have applied this sunset more broadly to any invocation of Exemption 5. See S. REP. NO. 114-4, at 10 (explaining that bill would “amend[] Exemption 5 to include a sunset provision, which would limit the application of Exemption 5 to documents created less than 25 years ago,” “includ[ing] but . . . not limited to the attorney-client privilege, the attorney work product doctrine, and deliberative process documents”); H.R. REP. NO. 114-391, at 11 (“Agencies could only apply exemption five to records and information created within 25 years prior to the date of the request regardless of the underlying privilege relied upon.”).

16 information.” Rosenberg v. U.S. Dep’t of Defense,

(D.D.C. 2018); see,

e.g., S. REP. NO. 114-4, at 3 & n.8 (2015) (citing 2009 DOJ Memorandum). Specifically,

subsection (a)(8)(A)(i) of FOIA—mirroring the language employed by Attorney General

Holder—provides that “[a]n agency shall . . . withhold information under this section only if . . .

(I) the agency reasonably foresees that disclosure would harm an interest protected by an

exemption described in subsection (b); or (II) disclosure is prohibited by law.”

(a)(8)(A)(i). Subsection (a)(8)(B) further explains that “[n]othing in this paragraph requires

disclosure of information that is otherwise prohibited from disclosure by law, or otherwise

exempted from disclosure under subsection (b)(3),” which exempts classified information from

disclosure under FOIA.

§ 552(a)(8)(B). Subsection (b) of FOIA, enumerating the FOIA

exemptions, then immediately follows. See id. § 552(b). In sum, FOIA now requires that an

agency “release a record—even if it falls within a FOIA exemption—if releasing the record

would not reasonably harm an exemption-protected interest and if its disclosure is not prohibited

by law.” Judicial Watch, Inc. v. U.S. Dep’t of Justice (Judicial Watch II), No. 17-cv-0832

(CKK),

, at *3 (D.D.C. Sept. 24, 2019) (internal quotation mark omitted)

(quoting Rosenberg,

); see also Judicial Watch I,

(similar).

Consistent with Congress’s concern about agencies’ over-withholding under Exemption

5, nearly all of the few decisions to have addressed the new foreseeable-harm requirement at any

length have done so when considering the Exemption 5 deliberative-process privilege.7 Three

7 Two cases have addressed this new statutory requirement as applied to Exemption 4 and, particularly, the extent to which the foreseeable-harm requirement replaces the competitive-harm test rejected as without any statutory basis by the Supreme Court in Food Marketing. See Ctr. for Investigative Reporting v. U.S. Dep’t of Labor, No. 4:19-cv-01843-KAW,

, at *6–7 (N.D. Cal. Dec. 10, 2019); Am. Small Bus. League v. U.S. Dep’t of Defense, No. C 18-01979 WHA,

, at *7–8 (N.D. Cal. Nov. 24, 2019). This issue is discussed in more detail infra in Part III.B.2.b.

17 key principles may be gleaned from those decisions, which though non-binding are persuasive,

as guiding application of the foreseeable-harm requirement. First and foremost, the foreseeable-

harm requirement “impose[s] an independent and meaningful burden on agencies.” NRDC v.

EPA, No. 17-CV-5928 (JMF),

, at *1 (S.D.N.Y. July 25, 2019); see also, e.g.,

Judicial Watch I,

(describing the new foreseeable-harm requirement as a

“heightened standard”). Indeed, as the foregoing legislative history illustrates, the text, history,

and purpose of the FOIA Improvement Act confirm that the foreseeable-harm requirement was

intended to restrict agencies’ discretion in withholding documents under FOIA. See Stone v.

INS,

(1995) (“When Congress acts to amend a statute, we presume it intends

its amendment to have real and substantial effect.”). Second, to meet this independent and

meaningful burden, an agency must “identify specific harms to the relevant protected interests

that it can reasonably foresee would actually ensue from disclosure of the withheld materials”

and “connect[] the harms in [a] meaningful way to the information withheld.” Judicial Watch II,

, at *5; see H.R. REP. NO. 114-391, at 9 (“An inquiry into whether an agency

has reasonably foreseen a specific, identifiable harm that would be caused by a disclosure would

require the ability to articulate both the nature of the harm and the link between the specified

harm and specific information contained in the material withheld.”). Third and finally, agencies

“may take a categorical approach” and “group together like records,” Rosenberg,

, but when using a categorical approach, an agency must provide more than “nearly

identical boilerplate statements” and “generic and nebulous articulations of harm,” Judicial

Watch II,

, at *4–5.

18 b. The Defendants’ Foreseeable-Harm Claims

Here, the defendants’ claims of foreseeable harm consist of “general explanations” and

“boiler plate language,” Judicial Watch I¸

, that do not satisfy the

foreseeable-harm requirement. For instance, every Exemption 5 entry in the defendants’ Vaughn

Index recites the following three sentences, with only slight variation, as the justification for

withholding the documents at issue:

[T]he documents were withheld from disclosure because the information in the documents is predecisional and deliberative in that it consists of evaluations, opinions, observations, and other findings that CBP employees deemed critical as part of administering the border wall contracting, procurement, and construction process. Releasing these documents could result in confusion regarding reasons and rationales that may not ultimately be the grounds for any actions CBP may take regarding the contracting, procurement, and construction process. Moreover, release could chill open and frank discussions among CBP employees.

Vaughn Index ## 3, 6–18, 20–21, 23–25. The defendants’ declarations, likewise, contain

“generic, across-the-board articulations of harm,” NRDC,

, at *1, that largely

repeat statements already found in the Vaughn Index, see, e.g., Suzuki Decl. ¶ 30 (“[R]eleasing

these documents could result in confusion regarding reasons and rationales that may not

ultimately be the grounds for any actions the agency may take regarding the ongoing process.”);

Suppl. Suzuki Decl. ¶ 10 (“Release of the information and documents that were withheld under

Exemption (b)(5) would . . . impair[] CBP employees [sic] ability to perform their duties with

candor and without the fear of reprisal” and “creat[e] confusion with the public by disseminating

policies and proposals that are not ultimately adopted.”). Even the defendants candidly admit

that the claim that “particular records could ‘chill open and frank discussions among CBP

employees’” is merely a “general statement.” Defs.’ Opp’n at 6 (quoting Suzuki Decl. ¶ 30).

If the defendants wish to establish foreseeable harm when they supplement the record,

they will need to provide “context or insight into the specific decision-making processes or

19 deliberations at issue, and how they in particular would be harmed by disclosure.” Judicial

Watch II,

, at *5; see also NRDC v. EPA, No. 17-CV-5928 (JMF),

, at *5 (S.D.N.Y. Aug. 30, 2019) (finding foreseeable-harm requirement satisfied where

agency gave “context for the decisionmaking processes in question and the harms that would

reasonably ensue from disclosure of the material”). In some instances, the foreseeable-harm

claims the defendants have already provided—once attached to a more detailed document

description that includes, inter alia, the information the defendants must already provide to

enable assessment of whether the deliberative process privilege was properly asserted in the first

instance—may be enough. In Rosenberg, for example, “the court [could] readily see” the harm

presented by “disclosure of the internal deliberations between [the general who served as

commander of American military operations in Central America, South America, and the

Caribbean] and high-ranking [Department of Defense] officials about ‘a possible new detention

operation in the continental United States.’”

. In other instances, though, it

will not be “axiomatic,” Defs.’ Opp’n at 7, that disclosure would cause the harms that the

defendants claim, particularly since the successful bidders for the RFPs have already been

selected and the bids awarded, see Suzuki Decl. ¶ 13.

Entry # 17 on the defendants’ Vaughn Index well illustrates these two possibilities.

There, the defendants state that they have withheld a “[o]ne-page email [that] sets forth an

estimate of the dollar amount that will be required for prototype testing.” Vaughn Index # 17.

The defendants do not explain, however, inter alia, who prepared the estimate, how the estimate

was calculated, how CBP employees reacted to the estimate, and how the estimate was

ultimately used in the planning and selection process. Perhaps the email contains candid

assessments sent by a subordinate to a superior about the key assumptions underlying the cost

20 estimate, in which event the defendants’ explanation that disclosure would “result in confusion

regarding reasons and rationales that may not ultimately be the grounds for any actions CBP may

take” and “chill open and frank discussions among CBP employees” may suffice.

On the

other hand, perhaps the email contains nothing except the dollar estimate itself for prototype

testing. In that scenario, the information might not be, as the defendants argue, likely to cause

confusion, particularly since the bids for the RFPs have already been accepted, and, in fact,

relevant to citizens’ consideration of the merits of the current border wall policy and the

effectiveness with which that policy is carried out. The defendants must explain why the

“presumption of openness” is overcome in such a context.

***

In light of the defendants’ failure to explain sufficiently the basis of their Exemption 5

withholdings and to show foreseeable harm, their motion for summary judgment must be denied

with respect to Exemption 5.

B. Exemption 4

Exemption 4 exempts from disclosure “trade secrets and commercial or financial

information obtained from a person” that is “privileged or confidential.”

(b)(4).

Where withheld records do not contain trade secrets, an agency must establish that the records

are “(1) commercial or financial, (2) obtained from a person, and (3) privileged or confidential”

to sustain the burden of showing that Exemption 4 was properly applied. Pub. Citizen Health

Research Grp. v. FDA,

(D.C. Cir. 1983).

Here, the defendants have withheld two groups of documents pursuant to Exemption 4.

First, they have withheld portions of the unsuccessful proposals submitted in response to the

RFPs. Vaughn Index # 26. Second, they have withheld a “small amount of Exemption [4]

21 information” from 110 pages of “emails,” Suppl. Suzuki Decl. ¶ 7, sent to

[email protected] asking “questions” and expressing “concerns” about the

RFPs, Vaughn Index # 25. The plaintiff concedes that the first set of documents—the

proposals—were properly withheld in full under FOIA Exemption 3, rendering consideration of

whether portions of those documents were also properly withheld pursuant to Exemption 4

unnecessary. See Pl.’s Cross-Mot. at 1; Vaughn Index # 26. Thus, the current Exemption 4

dispute concerns only the information withheld pursuant to Exemption 4 in the question-and-

concern emails. The plaintiff agrees that this information is “commercial” and was “obtained

from a person,” but contests whether it is “confidential.” See Pl.’s Cross-Mot. at 3–5.8 Thus,

whether Exemption 4 applies to this information turns on this question.

1. Critical Mass Provides the Governing Legal Standard

Until recently, the test used in this Circuit to determine whether commercial or financial

information is “confidential” for the purpose of FOIA Exemption 4 rested on whether the

information was submitted to the government involuntarily or voluntarily. When an entity

submitted commercial or financial information to the government involuntarily, such information

could be deemed “confidential” if its disclosure was likely “to cause substantial harm to the

competitive position of the person from whom the information was obtained.” Nat’l Parks &

Conservation Ass’n v. Morton,

(D.C. Cir. 1974). By contrast, when an entity

submitted commercial or financial information to the government voluntarily, the less-

demanding test from Critical Mass Energy Project v. Nuclear Regulatory Commission,

(D.C. Cir. 1992) (en banc), applied. Such information was “‘confidential’ for the purpose of

8 Under

(2), a “‘person’ includes an individual, partnership, corporation, association, or public or private organization other than an agency.”

22 Exemption 4” merely if the information was “of a kind that would customarily not be released to

the public by the person from whom it was obtained.”

.

The parties do not dispute that here, the information withheld under Exemption 4 was

involuntarily submitted because CBP “dictated the contents of the submissions.” Defs.’ Mem.

Supp. Mot. Summ. J. (“Defs.’ Mem.”) at 9, ECF No. 14-1; see also Pl.’s Cross-Mot. at 3.

Accordingly, the National Parks test would apply under the framework described above. See

Defs.’ Mem. at 9–10; Pl.’s Cross-Mot. at 4. Recently, however, the Supreme Court overruled

National Parks in Food Marketing.

. Explaining that it could not “discern a

persuasive reason to afford the same statutory term two . . . radically different constructions,”

(emphasis in original), the Court applied the “‘ordinary, contemporary, common

meaning’” that “confidential” had “when Congress enacted FOIA in 1966,”

at 2362 (quoting

Perrin v. United States,

(1979)), and set forth a single test for determining

whether information—regardless whether voluntarily or involuntarily submitted to the

government—is confidential under Exemption 4. Specifically, “commercial or financial

information” is confidential for the purpose of Exemption 4 when it is “both customarily and

actually treated as private by its owner,” and, perhaps as well, “provided to the government

under an assurance of privacy.” Id. at 2366.9

No decision in this Circuit has yet grappled with the ramifications of Food Marketing.10

Nevertheless, assessing the defendants’ assertion that the information withheld under Exemption

4 is confidential is not done on a blank slate. As the Supreme Court explained, the D.C. Circuit

9 The Supreme Court did not ultimately decide whether an “assurance of privacy” is in fact necessary for information to be confidential within the meaning of Exemption 4. See Food Mktg.,

. This potential requirement is discussed infra in Part III.B.2.b. 10 Tokar v. U.S. Department of Justice, 16-cv-2410 (RC),

(D.D.C. Dec. 19, 2019), recently applied Food Marketing, but addressed the case only briefly in a footnote and did not need to consider the issues discussed here. See

at *4 n.7.

23 never “extend[ed] the National Parks test to information provided voluntarily to the government

under Exemption 4.”

(emphasis in original). Instead, and as noted above, the D.C.

Circuit has long held that voluntarily submitted information is governed by the test found in

Critical Mass, which “adhered to a much more traditional understanding of the statutory term

‘confidential.’”

(citing Critical Mass, 975 F.2d at 879–80). The import of Food Marketing’s

holding that the ordinary meaning of “confidential” applies in all Exemption 4 cases, then, is

clear: Critical Mass and its progeny now supply the framework in this Circuit for determining

whether voluntarily submitted and involuntarily submitted commercial or financial information

are “confidential” under Exemption 4. Accordingly, Critical Mass and its progeny will be

applied to resolve the defendants’ confidentiality claims.

2. The Defendants Fail to Meet the Critical Mass Standard

As explained above, under Critical Mass commercial or financial information is

“‘confidential’ for the purpose of Exemption 4 if it is of a kind that would customarily not be

released to the public by the person from whom it was obtained.”

. This test “is

objective,” and “the agency invoking Exemption 4 must meet the burden of proving the

provider’s custom.”

“In addition, in assessing customary disclosure, the court will consider

how the particular party customarily treats the information, not how the industry as a whole

treats the information.” Ctr. for Auto Safety v. Nat’l Highway Traffic Safety Admin.,

(D.C. Cir. 2001) (citing Critical Mass,

, 878–80)); see also Food Mktg.,

(explaining that “information communicated to another remains

confidential whenever it is customarily kept private, or at least closely held, by the person

imparting it,”

(emphasis added), that “it is hard to see how information could be

deemed confidential if its owner shares it freely,”

(emphasis added), and that “commercial or

24 financial information” is “‘confidential’ within the meaning of Exemption 4” “[a]t least where,”

inter alia, the information is “customarily and actually treated as private by its owner,”

(emphasis added)). Here, the defendants have failed to meet this standard.

a. The Defendants’ Declarations Lack Sufficient Foundation

The defendants rely on the declarations submitted by Sharon Suzuki, the Chief of CBP’s

FOIA Appeals, Policy and Litigation Branch, to establish that the information withheld under

Exemption 4 is of the type that the submitters customarily treat as private. See, e.g., Defs.’

Opp’n at 4 (citing Suzuki Decl. ¶ 21; Suppl. Suzuki Decl. ¶¶ 7, 8). Suzuki states that documents

withheld or redacted under Exemption 4 contain “information that a submitter would not want

released to competitors.” Suzuki Decl. ¶ 25. “[T]he unsuccessful bidders have a strong interest

in maintaining confidential treatment for [this] information,” according to Suzuki, Suppl. Suzuki

Decl. ¶ 7, especially because “[m]any of the unsuccessful bidders for this project may bid on

future border wall projects” and “[r]eleasing the information contained in the bidders’ proposals

. . . will undercut their ability to obtain future border wall contracts,” id. ¶ 8. The plaintiff,

however, points out that Suzuki is a CBP employee, and that the defendants “offer no

declarations from the submitters themselves.” Pl.’s Cross-Mot. at 4. “[A]gency declarations”

alone, the plaintiff argues, “or at least ones lacking foundation as is the case here,” are

“inadequate” in the Exemption 4 context, Pl.’s Reply at 2, and thus the defendants have failed to

carry their burden.

The plaintiff is correct that the Suzuki declarations lack sufficient foundation to support

the defendants’ confidentiality claim. To establish submitter custom for purposes of Exemption

4, “it is sufficient for an agency to proceed solely on its sworn affidavits.” Judicial Watch, Inc.

v. U.S. Dep’t of Commerce (Judicial Watch III),

(D.D.C. 2004). Yet,

25 as is the case for all affidavits, such agency affidavits must “be made on personal knowledge.”

Animal Legal Def. Fund, Inc. v. Dep’t of the Air Force,

(D.D.C. 1999)

(quoting FED. R. CIV. P. 56(e)). Such personal knowledge can be demonstrated in various ways,

including by relaying that the submitters themselves told the agency that the information is

confidential, see ICM Registry, LLC v. U.S. Dep’t of Commerce,

(D.D.C. 2008); Decl. of Richard C. Beaird ¶¶ 27, 31, ICM Registry, LLC,

(No.

06-cv-0949 (JR)), ECF No. 19-1, by indicating that the agency reached an “understanding” with

the submitters “that the information w[ould] be held in confidence by the U.S. and not publicly

divulged,” Judicial Watch III,

(internal quotation marks omitted), by

pointing to confidential markings on the documents themselves or to the existence of a non-

disclosure agreement, see Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec.,

(D.D.C. 2015); Cooper v. U.S. Dep’t of the Navy, No. 05-cv-2252 (EGS),

, at *5 (D.D.C. Mar. 30, 2007), or by providing descriptions of the documents that

demonstrate their confidential nature, see, e.g., Judicial Watch, Inc. v. U.S. Dep’t of Justice,

(D.D.C. 2004). Conclusory statements by an agency official about what the

agency official may believe about how a submitter customarily treats the information at issue are

simply insufficient.11

The defendants provide no foundation for their confidentiality claims. They do not, for

instance, indicate that the submitters told CBP that portions of the questions and concerns were

11 Relevant guidance issued to federal agencies by the Department of Justice’s Office of Information Policy (“OIP”) is in accord. See Office of Info. Policy, U.S. Dep’t of Justice, Exemption 4 after the Supreme Court’s Ruling in Food Marketing Institute v. Argus Leader Media (last updated Oct. 4, 2019), https://www.justice.gov/oip/ exemption-4-after-supreme-courts-ruling-food-marketing-institute-v-argus-leader-media [hereinafter OIP Guidance]. OIP advises: “Often an agency can determine whether this [confidentiality] condition is met based on its own knowledge of the information, the submitter’s practices, and/or from the records themselves. Agencies may also seek additional information from the submitter about its practices. And as [Food Marketing] itself demonstrates, industry representatives can provide the necessary information regarding the customary treatment of such information.”

26 confidential. Nor do the defendants point to an understanding with the submitters that questions

and concerns sent to the general “point of contact between the public and CBP for matters related

to the border wall RFP’s,” Suzuki Decl. ¶ 14, would be kept confidential. In fact, a reasonable

submitter may well have assumed that information stored in such a public-facing email account

would not be confidential by default. While Suzuki does state, in her first declaration, that some

of the information withheld pursuant to Exemption 4 “reveal[s] the competitive vulnerabilities

and operational capabilities of” the submitters, id. ¶ 25, that statement is borderline conclusory,

and in any event, a later statement in the same paragraph creates the impression that Suzuki’s

claim refers only to the portions of the proposals withheld pursuant to Exemption 4, not to the

portions of the question-and-concern emails that were withheld, see id. (“[M]any of the

proposals that were submitted contained innovative, novel, and proprietary information that a

submitter would not want released to competitors.” (emphasis added)). Without a firm

foundation, the defendants’ confidentiality claims must fail.

b. The Defendants’ Declarations Suffer from Additional Deficiencies

The defendants’ declarations suffer from additional deficiencies with respect to the

Exemption 4 withholdings. First, contravening the D.C. Circuit’s command that an agency show

“how the particular party customarily treats the information,” Ctr. for Auto Safety,

(emphasis added), the defendants base their confidentiality claim on “how the industry as a

whole treats the information,” id.; see Defs.’ Opp’n at 4. Defendants argue that “there can be no

debate that a company customarily keeps private the types of information contained in the

withheld records,” Defs.’ Opp’n at 4 (emphasis added), not that these specific companies

customarily do so. True, another of the defendants’ contentions, read in isolation, comes closer

to addressing the appropriate legal standard, see

(arguing that “the submitters ‘have a strong

27 interest in maintaining confidential treatment for their information’” (emphasis added) (quoting

Suppl. Suzuki Decl. ¶ 7)), but in the broader context of the defendants’ argument, that

statement—preceded by the claim about industry practice—is at best ambiguous as to whether it

in fact refers to the practices of these submitters. Given that the defendants carry the burden of

proof, this ambiguity does not meet the Critical Mass standard.

Second, the confidentiality interest cited by the defendants might be too narrow to cover

all the withheld information. The defendants contend only that unsuccessful bidders have an

interest in keeping their information private. See, e.g., Suppl. Suzuki Decl. ¶ 7 (“Here, the

unsuccessful bidders have a strong interest in maintaining confidential treatment for their

information . . . .” (emphasis added)); id. ¶ 8 (“Many of the unsuccessful bidders for this project

may bid on future border wall projects.” (emphasis added)). They never claim, however, that

unsuccessful bidders submitted the redacted questions and concerns. Perhaps some—or even

all—the submitters of the redacted questions and concerns were successful bidders, or potential

bidders who ultimately decided not to respond to the RFPs. Considering that the defendants

have not claimed that these types of submitters have an interest in keeping their information

confidential, they have again failed to satisfy Critical Mass.

Third, the defendants have not satisfied a potential additional requirement recently

highlighted by the Supreme Court. In Food Marketing the Supreme Court indicated that “two

conditions . . . might be required for information communicated to [the government] to be

considered confidential” under Exemption 4,

(emphasis added): that the

information is “customarily and actually treated as private by its owner,”

, and that the

information was “provided to the government under an assurance of privacy,”

The Supreme

Court stopped short, however, of deciding that Exemption 4 does in fact impose this second

28 requirement, see

, perhaps because when information is involuntarily submitted to the

government, the government often does not provide an assurance of privacy in return. By

waiting until another day to determine whether and when this requirement applies, the Supreme

Court left room to treat involuntarily submitted information and voluntarily submitted

information differently from one another.

Regardless of the Supreme Court’s reason for not resolving whether the government’s

“assurance of privacy” is required under Exemption 4, the defendants here acknowledge that in

light of Food Marketing, they might need to show that they “provide[d] some assurance” to the

submitters that the withheld information would “remain secret.” Defs.’ Opp’n at 4 n.3 (internal

quotation mark omitted) (quoting Food Mktg.,

). Nevertheless, the defendants

offer no evidence that such assurance was ever provided. The closest they come to doing so is to

note that “federal procurement law expressly protects the confidentiality of proposals submitted

in response to Federal Government Requests for Proposals,” Defs.’ Opp’n at 4–5 (citing

;

(a)), but they do not claim that the submitters understood that

questions and concerns expressed to a public-facing government email address about the RFPs

would be covered by the provisions the defendants cite. Indeed, if those provisions did apply,

the defendants could and presumably would have relied on Exemption 3 in addition to

Exemption 4 to withhold this information, as they did for the proposal documents. See Suzuki

Decl. ¶ 20 (explaining that the defendants withheld proposal documents under Exemption 3

because of

). Given that the defendants’ declarations are already deficient for

other reasons, at this stage “there’s no need to resolve,” Food Mktg.,

, whether

Exemption 4 in fact imposes an “assurance of privacy” requirement. Suffice to say that if

29 Exemption 4 does so, the defendants must supply at least some evidence that this assurance was

given.12

Finally, the plaintiff argues with respect to the Exemption 4 withheld information, as with

the Exemption 5 withholdings, supra, in Part III.A.2, that the defendants have failed to satisfy

FOIA’s foreseeable-harm requirement. See Pl.’s Cross–Mot. at 5; Pl.’s Reply at 2–3. The FOIA

Improvement Act’s “foreseeable harm” requirement replaces to some extent the “substantial

competitive harm” test that the Supreme Court overruled in Food Marketing. Food Marketing

itself addressed a claim that arose prior to the enactment of the FOIA Improvement Act, and thus

the Supreme Court had no opportunity to consider the foreseeable-harm requirement. The

dissent, though—while agreeing with the majority that the D.C. Circuit’s rejected substantial

competitive harm test went “too far,” Food Mktg.,

(Breyer, J., concurring in

part and dissenting in part)—stressed that “a tool used to probe the relationship between

government and business should not be unavailable whenever government and business wish it

so,” particularly “given the temptation, common across the private and public sectors, to regard

as secret all information that need not be disclosed,”

.

The foreseeable-harm requirement, as applied to Exemption 4, enhances the useful “tool”

of FOIA. To meet this requirement, the defendants must explain how disclosing, in whole or in

part, the specific information withheld under Exemption 4 would harm an interest protected by

this exemption, such as by causing “genuine harm to [the submitter’s] economic or business

interests,”

, and thereby dissuading others from submitting similar information to the

government, see Nat’l Parks,

(explaining that Exemption 4 “is intended to

12 This analysis, again, comports with OIP guidance stating that “agencies should as a matter of sound administrative practice consider both [Food Marketing] conditions in the process of determining whether to invoke Exemption 4’s protection for ‘confidential’ commercial or financial information.” OIP Guidance.

30 encourage individuals to provide certain kinds of confidential information to the Government”

(quoting Soucie v. David,

(D.C. Cir. 1971), and to “protect[] persons who

submit financial or commercial data to government agencies from the competitive disadvantages

which would result from its publication”).

At this stage, the defendants have not established that the withheld information falls

within the scope of Exemption 4 in the first instance. Thus, they have, a fortiori, failed to satisfy

the “heightened” foreseeable-harm requirement as well. See, e.g., Judicial Watch I,

. For these reasons, the defendants’ summary judgment motion must be denied with

respect to Exemption 4.

C. Segregability

FOIA requires that “[a]ny reasonably segregable portion of a record shall be provided to

any person requesting such record after deletion of the portions which are exempt” from

disclosure.

(b). Producing segregable information is an essential ingredient for

agencies’ FOIA compliance, and “[b]efore approving the application of a FOIA exemption, the

district court must make specific findings of segregability regarding the documents to be

withheld.” Stolt-Nielsen Transp. Grp. Ltd. v. United States,

(D.C. Cir. 2008)

(alteration in original) (internal quotation marks omitted) (quoting Sussman v. U.S. Marshals

Serv.,

(D.C. Cir. 2007)); see also Morley v. CIA,

(D.C.

Cir. 2007) (explaining that a district court has “an affirmative duty to consider the segregability

issue sua sponte” (internal quotation marks omitted) (quoting Trans-Pac. Policing Agreement v.

U.S. Customs Serv.,

(D.C. Cir. 1999)). For those findings, “[a]gencies are

entitled to a presumption that they complied with the obligation to disclose reasonably

segregable material.” Sussman,

.

31 Even with that presumption, “the agency must provide a ‘detailed justification’ for its

non-segregability” but need not “provide so much detail that the exempt material would be

effectively disclosed.” Johnson v. Exec. Office for U.S. Attorneys,

(D.C. Cir.

2002) (quoting Mead Data Cent., Inc. v. U.S. Dep’t of the Air Force,

(D.C.

Cir. 1977)). Affidavits attesting to the agency’s “line-by-line review of each document withheld

in full” and the agency’s determination “that no documents contained releasable information

which could be reasonably segregated from the nonreleasable portions,” in conjunction with

a Vaughn index describing the withheld record, suffice.

(internal quotation marks

omitted); see also Loving v. Dep’t of Def.,

(D.C. Cir. 2008) (stating that “the

description of the document set forth in the Vaughn index and the agency’s declaration that it

released all segregable material” are “sufficient for [the segregability] determination”).

With respect to the information that the plaintiff concedes was properly withheld—i.e.,

the information withheld pursuant to Exemptions 3, 6, 7(C), and 7(E)—the defendants have

provided a sufficiently detailed attestation about the segregability of the withheld information.

The defendants’ declarant, Suzuki, has certified that she “reviewed the documents line-by-line,

to identify information exempt from disclosure or for which a discretionary waiver of exemption

could apply,” and that she was “satisfied that all reasonably segregable portions of the relevant

records have been released to the Plaintiff in this matter.” Suzuki Decl. ¶ 42. Further, with

regard to the 4,999 pages that the defendants have withheld under both Exemption 3 and

Exemption 4, the defendants have made clear that these pages were withheld in their entirety

pursuant to Exemption 3, making the Exemption 4 withholdings duplicative. See id. ¶ 22; Suppl.

Suzuki Decl. ¶ 7; see also Defs.’ Opp’n at 2. Suzuki’s statements are corroborated by the fact

that the defendants have released 1,019 pages of records in their entirety and 155 pages of

32 records with redactions. See Suzuki Decl. ¶ 15. Thus, the Court finds that as to the information

withheld pursuant to Exemptions 3, 6, 7(C), and 7(E), the defendants have released all

segregable information. See Waterman v. IRS,

, 28 (D.C. Cir. 2019) (per curiam)

(vacating decision granting agency’s motion for summary judgment due to district court’s error

in “approv[ing] the government's withholding of information under the FOIA without making an

express finding on segregability.” (emphasis in original) (internal quotation mark omitted)

(quoting PHE Inc. v. Dep't of Justice,

(D.C. Cir. 1993)).

Finally, the FOIA Improvement Act of 2016 added another provision that concerns

segregability. “An agency shall . . . (I) consider whether partial disclosure of information is

possible whenever the agency determines that a full disclosure of a requested record is not

possible . . . and (II) take reasonable steps necessary to segregate and release nonexempt

information.”

(a)(8)(A)(ii). As noted, the D.C. Circuit has already interpreted

subsection (b) of FOIA as satisfied by affidavits attesting to the agency’s “line-by-line review of

each document withheld in full” and the agency’s determination “that no documents contained

releasable information which could be reasonably segregated from the nonreleasable portions.”

Johnson,

(internal quotation marks omitted). The FOIA Improvement Act

appears to require no more than that, and therefore the defendants have also satisfied this

requirement as to the information withheld pursuant to Exemptions 3, 6, 7(C), and 7(E).

IV. CONCLUSION

For the foregoing reasons, the defendants’ Motion for Summary Judgment, ECF No. 14,

is GRANTED in part and DENIED in part. The defendants are granted partial summary

judgment for withholdings under Exemptions 3, 6, 7(C), and 7(E). The defendants’ motion is

otherwise DENIED without prejudice, as is Plaintiff’s Cross-Motion, ECF Nos. 15, 16.

33 The parties are directed to submit, by January 31, 2020, a joint status report (1) informing

the Court as to the progress, if any, the parties have made to narrow the issues in dispute and (2)

proposing a schedule to govern further proceedings in this matter.

An appropriate Order accompanies this Memorandum Opinion.

Date: December 31, 2019

__________________________ BERYL A. HOWELL Chief Judge

34