UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON,

Plaintiff,

v. Civil Action No. 1:18-cv-03022 (CJN)

U.S. DEPARTMENT OF COMMERCE,

Defendant.

MEMORANDUM OPINION

Citizens for Responsibility and Ethics in Washington (“CREW”) requested pursuant to

the Freedom of Information Act two categories of records from the U.S. Department of

Commerce: “[a]ll communication between former White House advisor to the Commerce

Department Eric Branstad and former Trump campaign official Rick Gates from January 20,

2017[,] to March 1, 2018,” and “[a]ll communication[s] sent or received by Branstad that

mention[ ] the defense firm Circinus.” See generally Pl.’s Statement of Undisputed Material

Facts in Supp. of Cross-Mot. for Summ. J. (“Pl.’s SOMF”) ¶¶ 1–2, ECF No. 15-4 at 2.

Commerce withheld certain information under FOIA Exemptions 4, 5, and 6, id. ¶ 4, and both

Parties have moved for summary judgment, see generally Def.’s Mot. for Summ. J., ECF No. 14;

Pl.’s Cross-Mot. for Summ. J., ECF No. 15. For the reasons stated below, the Court grants in

part and denies in part both Cross-Motions.

I. Background

On August 2, 2018, CREW submitted a FOIA request to Commerce seeking the two

categories of information identified above. CREW states that it is interested in the requested

1 communications because, CREW claims, Gates contacted Branstad on behalf of the defense firm

Circinus while Branstad worked at Commerce. Compl. ¶ 8, ECF No. 1. And CREW notes that

“Gates reportedly considered Branstad a ‘contact’ at Commerce who could help secure the

agency’s endorsement of lucrative defense work by Circinus for the Romanian government.”

Pl.’s Mem. in Supp. of Cross-Mot. (“Pl.’s Mem.”) at 2 (citing id.), ECF No. 15-1.

Commerce produced 165 pages of responsive records and withheld other responsive

records under FOIA Exemptions 4, 5, and 6. See Pl.’s SOMF ¶¶ 3–4. Commerce argues that its

searches were adequate; that its withholdings are lawful; and that it complied with FOIA’s

segregability requirement. See generally Def.’s Mem. of P. & A. in Supp. of Def.’s Mot.

(“Def.’s Mem.”), ECF No. 14 at 6. CREW challenges only Commerce’s assertion of

Exemptions 4 and 5 regarding specific documents. See generally Pl.’s Mem. Because CREW

does not oppose summary judgment on the adequacy of the search, Commerce’s decision to

withhold of certain information under Exemption 6, or whether Commerce complied with

FOIA’s segregability requirement, the Court grants judgment in favor of Commerce on those

grounds.

II. Analysis

“FOIA . . . [requires] that an agency disclose records on request, unless they fall within

one of nine [narrow] exemptions.” Milner v. Dep’t of the Navy,

, 565 (2011).

“FOIA mandates a ‘strong presumption in favor of disclosure,’” Nat’l Ass’n of Home Builders v.

Norton,

(D.C. Cir. 2002) (quoting U.S. Dep’t of State v. Ray,

(1991))—so much so that, unlike Administrative Procedure Act lawsuits, in which agency

actions are subject to arbitrary and capricious review, FOIA “expressly places the burden ‘on the

agency to sustain its action’ and directs district courts to ‘determine the matter de novo,’” U.S.

2 Dep’t of Justice v. Reporters Comm. for Freedom of the Press,

(1989)

(quoting

(a)(4)(B)).

A. Deliberative Process Privilege

Commerce has withheld two records as covered by the deliberative process privilege

recognized under Exemption 5: (1) a May 1, 2017 email in which a Commerce official discusses

draft congressional testimony of the Director of the Census Bureau John Thompson; and (2) the

draft congressional testimony itself, which was attached to the email. Decl. of Brian D.

Lieberman (“Lieberman Decl.”) ¶ 23, ECF No. 14-1. CREW does not dispute that these

documents might normally fit within the deliberative process privilege, which “protects

‘documents reflecting advisory opinions, recommendations[,] and deliberations comprising part

of a process by which governmental decisions and policies are formulated.’” Abtew v. U.S.

Dep’t of Homeland Sec.,

(D.C. Cir. 2015) (quoting NLRB v. Sears,

Roebuck & Co.,

(1975)). But, CREW argues, Commerce waived the privilege

after Branstad forwarded the email to Gates, a third party outside of the government, and asked

him to print the email and attachment for Commerce Secretary Wilbur Ross at the home of Tom

Barrack, another non-governmental third party. Pl.’s Mem. at 5. In particular, Branstad asked

Gates, “Can we print this at Tom[ Barrack’s] house for [Secretary] Ross – almost there.” Pl.’s

Ex. 1 at 00137, ECF No. 15-2. Gates responded, “Yes. Will do now.”

And then he added,

“Got them all for you.”

A “voluntary disclosure . . . to unnecessary third parties” waives the “deliberative process

privilege” as to “the document or information specifically released.” In re Sealed Case,

(D.C. Cir. 1997). Commerce argues, however, that “[t]here was no intentional,

voluntary disclosure to unnecessary third parties on the part of [Commerce].” Def.’s Reply at 9,

ECF No. 18. According to Commerce, “there has been no disclosure at all, since there is no

3 evidence that Mr. Gates looked at anything in the email beyond Mr. Branstad’s request at the top

of the email that he print it out, along with the attachment.”

The Court disagrees. When

analyzing waiver, the focus is not whether the recipient reviewed the disclosed information;

instead, it is whether a disclosure occurred in the first place. See In re Sealed Case,

. As a result, whether Gates reviewed or looked at the email and the draft testimony is

irrelevant.

Commerce next argues that “to the extent there was a disclosure,” Branstad’s sending of

the documents to Gates did not constitute a voluntary disclosure to an unnecessary third party

because “Gates became a necessary person to be the conduit to receive the information.” Def.’s

Reply at 9. But even assuming that Gates was a necessary third party (i.e., that it was necessary

to send Gates the email and testimony in order for those documents to be printed for Secretary

Ross), the government has failed to demonstrate that it attempted to protect the information after

its disclosure. An agency must take steps to protect privileged material that is commensurate

with the breadth of the privilege it seeks to claim.1 Commerce has ushered no facts exhibiting

that it took any action whatsoever to remedy Branstad’s disclosure to Gates (who again was not a

government employee at the time)—including investigating the disclosure, contacting the

individuals involved, or otherwise attempting to ensure that the privileged materials were not

1 Some courts have looked to Federal Rule of Evidence 502 for guidance over waiver in the deliberative process privilege context, see, e.g., Bayliss v. N.J. State Police,

(3d Cir. 2015) (holding that the deliberative process privilege was not waived “because the disclosure was inadvertent, and the State took reasonable steps in preventing and rectifying the disclosure” (citing Fed. R. Evid. 502(b)); however, as other judges have noted, the text of Rule 502 is expressly limited to the attorney-client privilege and work-product protection and should not be extended to the deliberative process privilege, see, e.g., Mannina v. District of Columbia, No. 15-cv-931,

, at *8 (D.D.C. May 6, 2019); see also Fed. R. Evid. R. 502 advisory committee notes (subdiv. g) (“The rule’s coverage is limited to attorney-client privilege and work product. The operation of waiver by disclosure, as applied to other evidentiary privileges, remains a question of federal common law.”).

4 further disclosed. As the D.C. Circuit has repeatedly held in the attorney-client privilege context,

“[t]he courts will grant no greater protection to those who assert the privilege than their own

precautions warrant.” In re Grand Jury,

(D.C. Cir. 2007) (citation

omitted).2 The present record reflects that Commerce took no precautions.

In the alternative, Commerce argues that the disclosure by Branstad was unauthorized,

e.g., Lieberman Decl. ¶ 24, and thus Commerce “should not be prejudiced by the actions of an

employee engaged in an unauthorized act, especially in light of the well established recognition

of the importance of protecting the government’s decision-making process,” Def.’s Reply

at 10–11 (citing NLRB, 421 U.S. at 148–51). While that may be true, Commerce has presented

no evidence that it attempted to remedy the unauthorized disclosure once it was discovered.

Indeed, even if Commerce discovered Branstad’s disclosure only as a result of its search for

records responsive to CREW’s FOIA request, Commerce apparently took no steps to rectify the

unauthorized disclosure. Commerce has thus waived any claim to deliberative process privilege

over the May 1, 2017 email and the attached draft congressional testimony.

B. Confidential Business Information

Commerce has also withheld under Exemption 4 information that it contends is protected

confidential business information about Circinus. Lieberman Decl. ¶¶ 17–21. “Exemption 4

shields from mandatory disclosure ‘commercial or financial information obtained from a person

and privilege or confidential.’” Food Mktg Inst. v. Argus Leader Media,

(2019) (quoting

(b)(4)). In Argus Leader, the Supreme Court identified “two

2 While the scope of potential waiver is narrower in the deliberative process context, the same general principles of privilege apply. See In re Sealed Case,

(discussing the differences between the scope of waiver in the attorney-client and deliberative process privilege contexts).

5 conditions that might be required for information communicated to another to be considered

confidential” under Exemption 4,

at 2363: the information is “[1] customarily and actually

treated as private by its owner and [2] provided to the government under an assurance of

privacy.” Id. at 2366. The Court held that the first is a necessary condition but left unresolved

whether the second is also necessary. Id. at 2363 (“[T]here’s no need to resolve that question in

this case because the retailers before us clearly satisfy this condition too.”).

Here, CREW concedes that the first condition is met and challenges only whether

Commerce meets the second. See Pl.’s Mem. at 8–11. CREW argues that Exemption 4

“requires a governmental assurance of confidentiality” because “the [Supreme] Court favorably

cited several . . . cases that do support such a requirement, including two from this Circuit.” Id.

at 9. Commerce contests whether such an assurance is required, but also argues that the

assurance can be express or implied, and that here an implied assurance was made to Circinus.

Def.’s Reply at 4–7.

In the Court’s view, Commerce has established that its withholding was proper.

Assuming that Exemption 4 can be satisfied here only if Commerce gave Circinus some

assurance of confidential treatment, Argus Leader,

, that assurance of

confidentiality could have been either express or implied. In U.S. Department of Justice v.

Landano, the Supreme Court interpreted the term “confidentiality” as used in Exemption 7(D),

which in certain circumstances protects the identity of confidential sources used in law

enforcement, and held that “the question is not whether the requested document is of the type

that the agency usually treats as confidential, but whether the particular source spoke with an

understanding that the communication would remain confidential.”

, 171–72

(1993) (emphasis altered). As a result, the Supreme Court noted, “[t]he precise question before

6 us, then, is how the Government can meet its burden of showing that a source provided

information on an implied assurance of confidentiality.”

(emphasis added). Implied

assurances of confidentiality can therefore satisfy Exemption 7(D), and the same idea should

apply here. See Law v. Siegel,

(2014) (stating the “‘normal rule of statutory

construction’ that words repeated in different parts of the same statute generally have the same

meaning.” (citations omitted)); Sorenson v. Secretary of the Treasury,

(1986)

(“The normal rule of statutory construction assumes that ‘identical words used in different parts

of the same act are intended to have the same meaning.’” (citation omitted)). Recent guidance

issued by the Department of Justice’s Office of Information Policy came to the same conclusion,

explaining that, “in the context of Exemption 4, agencies can look to the context in which the

information was provided to the government to determine if there was an implied assurance of

confidentiality.” Office of Information Policy, Exemption 4 After the Supreme Court’s Ruling in

Food Marking Institute v. Argus Leader Media, U.S. Dep’t of Justice, https://www.justice.gov/

oip/exemption-4-after-supreme-courts-ruling-food-marketing-institute-v-argus-leader-media (last

updated Oct. 4, 2019).

Here, Commerce states that “the information withheld consists of confidential

commercial information Circinus used in its commercial and business activities to provide

defense/military contracting and related services on an international basis.” Def.’s Reply at 6

(citing Lieberman Decl. ¶ 19). It further notes that “public dissemination of the information

withheld would give insight to competitors of Circinus’s pursuit of opportunities with a

particular foreign government, its capabilities[,] and the manner in which it markets its

capabilities.” Suppl. Decl. of Brian D. Lieberman ¶ 6, ECF No. 17-2. And in Commerce’s view,

[i]f Circinus or any other business could not be assured that [Commerce] would treat as confidential information about its

7 commercial plans and operations submitted to [Commerce] to support the business in its efforts, then [Commerce] would not be able to sustain the trust of the American business community, which is vital to [Commerce’s] mission to facilitate the growth of American commerce domestically and abroad. [Commerce] has been able to sustain this trust because businesses understand that [Commerce] carefully guards sensitive commercial information and only uses it to further [Commerce] efforts to help these businesses expand their reach.

Id. ¶ 7. The context in which Circinus provided Commerce information—to grow its business in

foreign markets—supports the notion that it did so under an implied assurance of confidentiality.

Without such an assurance, companies like Circinus would not seek Commerce’s assistance

because the information they provided could be revealed by simply submitting a FOIA request.

The information thus could easily fall into the hands of competitors or other entities that sought

it.

CREW disagrees and argues that “Commerce has failed to demonstrate that the ‘specific

circumstances’ here warrant finding an implied assurance of confidentiality.” Pl.’s Reply at 7.

In its view, Commerce has failed to justify the withholding based on the specific factors laid out

by the Office of Information Policy guidance. E.g. id. (arguing that Commerce did not provide

details about its historical “treatment of similar information” and “its broader treatment of

information related to the program or initiative to which the information relates” (quoting Office

of Information Policy, Exemption 4, supra)). But the guidance issued by the Office of

Information Policy on Exemption 4 is just that—guidance. In the Court’s view, Commerce has

demonstrated that the documents were provided by Circinus under and implied assurance of

confidentiality.

CREW is correct, however, that Commerce must provide any information to CREW that

it withheld under Exemption 4 yet has elsewhere disclosed to CREW or is otherwise available in

the public domain. As CREW states, “[i]nsofar as the identity of the foreign government, as well

8 as Commerce’s endorsement of Circinus to provide defense work for that government, are

already in the public domain, the identity cannot be deemed confidential under Exemption 4.”

Id. at 8. Beyond this specific information, the record does not reflect that other information that

Commerce has withheld under Exemption 4 has been disclosed elsewhere, and CREW does not

argue to the contrary.

III. Conclusion

For the reasons discussed above, Commerce’s Motion for Summary Judgment is

GRANTED IN PART and DENIED IN PART and CREW’s Cross-Motion is GRANTED IN

PART and DENIED IN PART. An Order consistent with this Memorandum Opinion will be

issued contemporaneously.

DATE: August 14, 2020 CARL J. NICHOLS United States District Judge

9