UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON,

Plaintiff, No. 19-cv-3626 v.

U.S DEPARTMENT OF JUSTICE,

Defendant.

MEMORANDUM OPINION

Citizens for Responsibility and Ethics in Washington (CREW) filed suit against the

Department of Justice (Department) under the Freedom of Information Act (FOIA),

, based on the Department’s decision to withhold certain records of the government’s

pentobarbital supply. The Court previously granted in part and denied in part the parties’ cross-

motions for summary judgment. CREW v. U.S. Dep’t of Just.,

(D.D.C. 2021).

On appeal, the D.C. Circuit reversed and remanded for further proceedings on a narrow set of

records that the Department withheld under FOIA Exemption 4, which applies to confidential

commercial information. CREW v. U.S. Dep’t of Just.,

(D.C. Cir. 2023). Now

before the Court are the Department’s renewed motion for summary judgment, Dkt. 46, and

CREW’s renewed cross-motion for summary judgment, Dkt. 49, with a supplemented record. For

the reasons that follow, the Court will grant the Department’s motion and grant in part and deny

in part CREW’s motion.

1 I. BACKGROUND

The Court’s previous opinion more fully describes the factual background of this case. See

CREW, 567 F. Supp. 3d at 208–10. As relevant here, CREW submitted two FOIA requests to the

Department’s Federal Bureau of Prisons (BOP) and to the Department itself seeking “all records

from February 14, 2019 to the present related to the procurement of pentobarbital, pentobarbital

sodium, or Nembutal to be used in federal executions, including without limitation any

notifications to or communications with vendors, solicitation information, requests for

information, subcontracting leads, and contract awards.” First CREW Cross-Mot. for Summ. J.

Ex. 1, Dkt. 19-3 (BOP request); see also Joint Status Report of Jan. 30, 2020, ¶ 1, Dkt. 7

(Department request). The Court refers to all three drugs collectively as “pentobarbital.”

Following the Department’s disclosures and withholdings, CREW filed this suit. Compl., Dkt. 1.

Over the following months, the Department further searched the government’s records pursuant to

CREW’s FOIA requests but maintained that FOIA Exemptions 4 and 7(E) shielded certain records

and information. See Updated Vaughn Index, Dkt. 28-2. Both parties then moved for summary

judgment. First Dep’t Mot. for Summ. J., Dkt. 17; First CREW Cross-Mot. for Summ. J., Dkt. 19.

The Court granted in part and denied in part each summary judgment motion. CREW, 567

F. Supp. 3d at 217. The Court held that the Department’s withholdings were proper under FOIA

Exemption 4,

(b)(4), which exempts from disclosure “trade secrets and commercial

or financial information obtained from a person and privileged or confidential,” CREW, 567

F. Supp. 3d at 210–14. But it found that the Department’s withholdings under FOIA Exemption

7(E) were improper.

at 214–17. CREW appealed the Court’s Exemption 4 holding. Dkt. 32.

2 After CREW filed its appeal but before the D.C. Circuit ruled, BOP discovered that seven

records withheld under Exemption 4 had entered the public domain through the course of other

litigation. CREW, 58 F.4th at 1261. BOP turned those records over to CREW. Id.

CREW raised two issues on appeal. First, the D.C. Circuit considered whether the

Department demonstrated that certain information—chiefly, the names of the government’s

pentobarbital contractors; and key contract terms, such as drug prices, quantities, and expiration

dates—constituted confidential commercial information under Exemption 4. Id. at 1262. Second,

the D.C. Circuit considered whether the Department had waived Exemption 4 with respect to the

information disclosed through other litigation. Id. at 1271–72. The D.C. Circuit reversed and

remanded on the first question, id. at 1269, 1271, and remanded on the second question, id. at

1272.

On the first question, the D.C. Circuit’s inquiry was narrow. It considered only (1) whether

the pentobarbital contractors’ names were commercial and (2) whether key contract terms were

confidential. Id. at 1262. Put differently, CREW conceded—and the D.C. Circuit accepted—that

the contractors’ names were confidential and the contract terms were commercial. With respect

to the commerciality of the contractors’ names, the D.C. Circuit held that the Department had not

“demonstrate[d] that the [contractors’] names are commercial in and of themselves,” id. at 1263

(emphasis added), apart from whether the disclosure of the names “could have commercial or

financial repercussions,” id., or “might reveal the existence of a contract likely to attract public

scrutiny,” id. at 1269, as the Department had argued. With respect to the confidentiality of the

contract terms, the D.C. Circuit held that the Department must provide “‘detailed and specific

information’” showing that “the contract terms could in fact reveal the identities of the Bureau’s

pentobarbital contractors.” Id. at 1271 (quoting Campbell v. U.S. Dep’t of Just.,

, 30

3 (D.C. Cir. 1998), as amended on denial of reh’g (Mar. 3, 1999)). The D.C. Circuit remanded to

allow this Court to determine whether the Department could make the required showings.

On the second question, the D.C. Circuit remanded because the Department’s disclosure

of records to the public in other litigation was discovered for the first time on appeal. Id. at 1272.

The Circuit left it to this Court to determine in the first instance “whether and to what extent any

information in the public domain is the basis on which the government seeks to withhold any

records or reasonably segregable portions thereof under Exemption 4.” Id.

II. LEGAL STANDARDS

A. Summary Judgment

A “court shall grant summary judgment 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). When the movant is a federal agency in a FOIA case, the court views all facts and

inferences in the light most favorable to the requester, and the agency bears the burden of showing

that it has complied with FOIA. Chambers v. U.S. Dep’t of Interior,

(D.C.

Cir. 2009).

To prevail under Rule 56, a federal agency “must prove that each document . . . is wholly

exempt from [FOIA’s] inspection requirements.” Perry v. Block,

(D.C. Cir.

1982) (per curiam) (citation omitted). The agency bears the burden of showing that any of the

nine enumerated exemptions listed in

(b) apply to withheld information. Mobley v.

CIA,

(D.C. Cir. 2015). These exemptions “are exclusive and must be narrowly

construed.”

Courts generally rely on “government affidavits to determine whether the statutory

obligations of the FOIA have been met,” but courts need not “accept glib government assertions

4 of complete disclosure.” Perry,

. That said, agency affidavits are entitled to a

presumption of good faith. Mobley,

. A court may grant summary judgment based

on a government affidavit when it justifies nondisclosure with “reasonably specific detail,” CREW,

58 F.4th at 1262 (citation omitted); when neither contradictory record evidence nor evidence of

bad faith calls it into question, id.; and when the withheld information “is logically within the

domain of the exemption claimed,” Campbell,

. The “vast majority of FOIA cases

can be resolved on summary judgment.” Brayton v. Off. of the U.S. Trade Representative,

(D.C. Cir. 2011).

B. FOIA

FOIA “seeks to permit access to official information long shielded unnecessarily from

public view and attempts to create a judicially enforceable public right to secure such information

from possibly unwilling official hands.” Dep’t of the Air Force v. Rose,

(1976)

(citation omitted). “Consistent with the basic policy that disclosure, not secrecy, is the dominant

objective of [FOIA],” FOIA requires that agencies disclose all requested agency records, unless

certain statutory exemptions apply. Muslim Advocs. v. Dep’t of Just.,

(D.D.C. 2011) (cleaned up) (citations omitted). Accordingly, the burden to justify non-disclosure

falls on the agency.

The government may meet this burden with sworn statements that describe

“the justifications for withholding the information with specific detail” and demonstrate “that the

information withheld logically falls within the claimed exemption.” ACLU v. Dep’t of Def.,

(D.C. Cir. 2011). “An agency's justification for invoking a FOIA exemption is

sufficient if it appears ‘logical’ or ‘plausible.’”

(citation omitted).

5 III. ANALYSIS

A. Exemption 4

To withhold information under Exemption 4 that is not a trade secret, the government

“must demonstrate that the withheld information is ‘(1) commercial or financial, (2) obtained from

a person, and (3) privileged or confidential.’” CREW, 58 F.4th at 1262 (quoting Pub. Citizen

Health Rsch. Grp. v. FDA,

(D.C. Cir. 1983)). The parties agree that the

withheld records were “obtained from a person.” See First Dep’t Mot. for Summ. J. at 46; First

CREW Cross-Mot. for Summ. J. at 20. But the parties disagree whether (1) the pentobarbital

contractors’ names are commercial and (2) key contract terms are confidential. For the reasons

that follow, the Department has shown that they are.

1. The Contractors’ Names and Commerciality

Information is “commercial” for Exemption 4 purposes when it is “commercial in and of

itself, meaning it serves a commercial function or is of a commercial nature.” CREW, 58 F.4th at

1265 (citation omitted). Information meets this standard “if it pertains to the exchange of goods

or services or the making of a profit,” id. at 1263, such as records that “actually reveal basic

commercial operations,” id. (quoting Pub. Citizen,

), or “customer lists,”

(quoting S. Rep. No. 89-813, at 9 (1965)); Greenberg v. FDA,

(D.C. Cir.

1986). The concept “reaches more broadly and applies (among other situations) when the provider

of the information has a commercial interest in the information submitted to the agency.” Baker

& Hostetler LLP v. U.S. Dep’t of Com.,

(D.C. Cir. 2006); see also COMPTEL

v. FCC,

(D.D.C. 2012) (“The terms ‘commercial’ or ‘financial” in

Exemption 4 . . . are construed broadly.”). But information is not “commercial” under Exemption

4 just because “public disclosure of [it] could inflict commercial harm,” CREW, 58 F.4th at 1264,

6 or “reveal the existence of a contract likely to attract public scrutiny,” id. at 1269. “[T]he

commercial consequences of disclosure are not on their own sufficient to bring confidential

information within the protection of Exemption 4 as commercial.” Id. at 1267.

The D.C. Circuit has not yet addressed whether contractors’ names in and of themselves

are “commercial” within the meaning of Exemption 4. See id. at 1266. As such, the Court must

reason from first principles, gleaning what it can from Circuit precedent. Taking into account the

plain language of Exemption 4 and precedent, the Court concludes that the contractors’ names are

commercial information because their disclosure would reveal that the contractors have sold a

product and/or service to the government, thereby “actually reveal[ing] basic commercial

operations” of the contractors. Id. at 1263 (quoting Pub. Citizen,

). That the

contractors operate specifically in the pentobarbital market, which is “likely to attract public

scrutiny,” does not bear on the Court’s analysis. CREW, 58 F.4th at 1269.

It is undisputed that the contractors’ work for the government is a commercial operation.

The contractors engage in commercial manufacturing, compounding, and testing of pentobarbital

for the government’s lethal-injection program, see Dep’t Mot. for Summ. J. Ex. A (Second

Christenson Decl.) ¶ 4, Dkt. 46-4, for their own profit-seeking purposes, see id. Ex. B (Contractor

1 Decl.) ¶ 4, Dkt. 46-5 (referring to this as “commercial activity”); id. Ex. C (Contractor 2 Decl.)

¶ 4, Dkt. 46-6 (same). 1 In other words, as Judge Sentelle put it, the contractors’ “contractual

1 Although CREW notes that only two of the four contractors submitted declarations attesting to the reputational value of their names, CREW Reply at 9-11, it does not question that all the contractors manufacture, compound, and test pentobarbital for the government’s lethal-injection program for their own profit-seeking purposes, id. Nor does it challenge the validity or admissibility of the government declarant’s representations that the contractors with which “the government entered into contracts for services and/or products . . . engaged in [] commercial activities” and that “three of the four” are registered in a government contracting database. Second Christenson Decl. ¶¶ 4, 5, 7. In any event, such representations are presumed to have been made

7 obligation to provide the Bureau of Prisons with legal injection drugs ‘pertains to the exchange of

goods . . . or the making of a profit.’” CREW, 58 F.4th at 1272 (Sentelle, J., concurring) (quoting

id. at 1263 (majority)).

Insofar as the contractors’ contracts with the government concern this commercial

operation, the records contain commercial information. As this Court has already recognized,

information that “addresses a business contract of [a] company” is commercial. Jordan v. U.S.

Dep’t of Lab.,

, 230–31 (D.D.C. 2017). After all, “[b]usiness organizations

plainly have a commercial interest in their contracts and matters affecting such contracts.”

Immerso v. U.S. Dep’t of Lab., No. 19-CV-3777,

, at *5 (E.D.N.Y. Nov. 20,

2020), aff’d, No. 20-4064,

(2d Cir. Nov. 30, 2022).

And few things are more material to a contract than the parties which it binds. “The identity

of a party to a contract” necessarily signifies whose goods and profits are at issue. See CREW, 58

F.4th at 1272 (Sentelle, J., concurring). The disclosure of that identity would reveal that

commerce. It follows that in certain circumstances, the identity of a contractor is commercial

information. Granted, not every company name (or piece of similarly identifying information)

subject to a FOIA request is commercial. See Pub. Citizen,

. But at least some

can be. Cf. COMPTEL, 910 F. Supp. 2d. at 116 (“[C]orporations can have a commercial interest

in the names of certain staff.”). And here, the fact of the contractors’ names is intrinsically linked

to the fact of their commercial activity in a particular market. Where a contractor’s identity cannot

be separated from its commercial activity, its identity is commercial information. Put another way,

in good faith, see Mobley,

, and could easily be “converted into admissible evidence” at trial, Greer v. Paulson,

(D.C. Cir. 2007) (cleaned up). For these reasons, the Court finds there is no material issue of disputed fact regarding the commercial and for-profit nature of the four contractors and contracts at issue.

8 the names of the pentobarbital contractors are necessarily commercial not because they are names

but because they are names that appear in government contracts.

As such, this case is readily distinguishable from National Business Aviation Association,

Inc. v. FAA. There, this Court held that the FAA reasonably concluded that Exemption 4 did not

protect the disclosure of aircraft registration numbers that were blocked from public view.

(D.D.C. 2010). The registration numbers were not commercial information

because they could reveal only “the owner of the aircraft, a description of the aircraft, and historical

location information,” but not, among other things, “the business purpose of any flight” or “real-

time or near real-time” data about the flights.

at 86–87. Here, in contrast, disclosure of the

contractors’ names would reveal an ongoing “business purpose”—the contractors’ commercial

activity in a specific market. The Court need not engage in “speculation” about how the

contractors’ names “might be used for insight into the nature of a company’s business dealings”

with the government,

; the presence of the contractors’ names in the government contracts

reveals that information itself.

Renewable Fuels Ass’n v. EPA,

(D.D.C. 2021), further illustrates this

point. There, Chief Judge Boasberg held that the names of refineries that applied to the EPA for

regulatory exemptions were commercial because “[c]ommon sense counsels that an oil refinery

has a ‘business interest’ in the fact[] that it applied for . . . a small-refinery exemption.”

.

Chief Judge Boasberg reasoned that the “identities of which companies have participated in a

government program or have sought to participate in that program” would yield “key insights into

the refinery’s financial and competitive position” and thereby constitute commercial information.

(citation omitted) (cleaned up). If the fact of a company’s attempted participation in a

government program constitutes commercial information because it generates implications about

9 the company’s market position, then plainly the contractors’ actual participation in a commercial

government contract does, too. A contractor’s name―here, providing proof of the contractor’s

transactions―is all the more commercial.

Moreover, beyond revealing their commercial participation in a specific market, the

disclosure of the contractors’ names would also partially reveal their customer lists―principally,

by publicizing that the government is a customer. “[I]t is clear that at least in some circumstances

customer lists may be considered confidential information protected by the exemption.”

Greenberg,

. Not only is the government’s role as a customer itself a valuable

data point about the contractors’ position in the marketplace, it also can implicate other commercial

information, such as whether a contractor has the manufacturing capacity to consistently and

reliably meet the government’s demand for a product and that the government has authorized the

contractor to operate this kind of business. Such is the case here.

It is true that this Court has held in other contexts that identifying information, such as the

names and addresses of companies and employees, is not commercial. But, unlike here, the

identifying information in those cases was also not confidential. See Getman v. NLRB,

(D.D.C. 1971) (“Obviously, a bare list of names and addresses of employees . . . without

any express promise of confidentiality, . . . is not exempted from disclosure by [Exemption] 4.”

(emphasis added)); COMPTEL, 910 F. Supp. 2d. at 116 (“In any case, the FCC likewise has not

shown that the information is confidential.”); Nat’l W. Life Ins. Co. v. United States,

(N.D. Tex. 1980) (“The list of names and addresses is neither privileged nor

confidential.”). The instant action―in which the plaintiff has conceded the confidentiality of

certain identifying information―is the rare case. Because the confidentiality prong of Exemption

4 substantially limits the impact of this holding, it is not nearly as “expansive” as CREW suggests.

10 See CREW Cross-Mot. for Summ. J. at 27. Further, this decision does not address identifying

information in records other than government contracts or documents closely related to those

contracts. See, e.g., Getman,

(holding that Exemption 4 does not exempt

identifying information that “employers are required by law to give to the [National Labor

Relations] Board”).

2. The Contract Terms and Confidentiality

In the context of Exemption 4, “confidential” means “private or secret.” See Food Mktg.

Inst. v. Argus Leader Media,

(2019) (cleaned up). To qualify, information

must be “customarily kept private, or at least closely held, by the person imparting it.”

Although it is unclear if the government must also assure the person imparting the information that

the information will remain secret, information is confidential when both conditions are met. See

CREW, 58 F.4th at 1269 (citing Argus Leader,

). CREW has not disputed the

second requirement, so the Court’s inquiry centers on the first.

To establish that the contract terms are private in this case, the Department must show that

the terms themselves are identifying. This unusual syllogism results from the Department’s

litigation strategy. The Department “structure[d] its exemption claim in two steps—that is,

asserting first that the contractors keep identifying information private and second that the contract

terms are identifying.” CREW, 58 F.4th at 1270–71. This Court previously credited the

Department’s representation that the contractors keep identifying contract terms private. CREW,

567 F. Supp. 3d at 214. Thus, the only remaining question is whether the contract terms contain

such “‘detailed and specific information’” that “[they] could in fact reveal the identities of the

Bureau’s pentobarbital contractors.” CREW, 58 F.4th at 1271 (quoting Campbell,

).

For reference, the contract terms at issue include “drug prices, quantities, expiration dates,

11 invoices, container units, lot numbers, purchase order/reference numbers, substance descriptions,

drug concentrations, and dates of purchase, service, and/or delivery.” Id. at 1269.

The Department has met this burden. In various ways, it has shown how the contract terms

at issue could be cross-referenced with public information to identify the contractors. Dep’t Reply

at 22, Dkt. 51. The Second Christenson Declaration, which is entitled to a presumption of good

faith, see Mobley,

, explains in reasonably specific detail how an individual could

match delivery dates or product lot numbers with public information (disclosed in cases or with

information available on the Internet or in public databases, like the Food and Drug Administration

registration system or the Federal Register) to identify pentobarbital contractors. See Second

Christenson Decl. ¶¶ 12–19. For example, in In re Federal Bureau of Prisons’ Execution Protocol

Cases, No. 19-mc-00145 (D.D.C.), the government revealed that it stores pentobarbital with a

DEA-registered compounding pharmacy that is registered as a 503B facility and that, as a result,

this particular pharmacy appears in a publicly accessible FDA database among a list of fewer than

80 pharmacies. Id. ¶ 13. Thus, by comparing the registration dates of the pharmacies listed in the

database to various contract terms, including the dates of pentobarbital sales and deliveries, an

individual could dramatically reduce the number of potential pentobarbital contractors. Id. ¶¶ 13,

14, 17. As further support for the contention that the contract terms could be combined with other

publicly available information to identify the pentobarbital contractors, the declarant cites to a

2020 news article that purported to identify, even without the help of contract terms, three

laboratories involved in pentobarbital testing. Id. ¶ 11; see also id. ¶¶ 9–10.

CREW presents no contradictory evidence in the record, and no evidence of bad faith calls

the Second Christenson Declaration into question. CREW, 58 F.4th at 1262. And CREW’s point

that the Department has shown that the contract terms are only possibly identifying, rather than in

12 fact identifying, does not persuade. See CREW Cross-Mot. for Summ. J. at 33. The D.C. Circuit

directed this Court to determine if the Department “demonstrate[d] that the contract terms could

in fact reveal the identities” of the contractors by “explain[ing]” how they are identifying. CREW,

58 F.4th at 1271 (emphasis added). The D.C. Circuit was careful not to require the Department to

demonstrate to an absolute certainty that the withheld information would reveal the identities of

the contractors. See id. at 1270 (“[T]he withheld contract terms are logically within the domain of

the Bureau’s Exemption 4 claim only to the extent they constitute information that could lead to

the identity of individuals or companies in the Bureau’s pentobarbital supply chain.” (emphasis

added) (cleaned up)). Indeed, to require absolute certainty would oblige district courts in this

position to conduct in camera review of withheld documents to determine whether they could

solve the identity puzzle for themselves. The Court will not assume the D.C. Circuit imposed such

a heavy obligation without saying so directly. By illustrating how the release of key contract terms,

combined with public information, can be used identify pentobarbital contractors, the Department

has met its burden of demonstrating that the contract terms are confidential and properly withheld

under Exemption 4.

3. Foreseeable Harm

The Department also has shown that foreseeable harm would result from disclosure of the

contractors’ names and contract terms. “To meet this requirement, the [Department] 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.” Ctr. for Investigative Reporting v. CBP,

, 113 (D.D.C.

2019) (internal citation omitted) (cleaned up). The government has explained that identified

13 companies are “commonly subject to harassment, threats, and negative publicity leading to

commercial decline.” First Dep’t Mot. for Summ. J., Ex. A at ¶ 52, Dkt. 17–4 (“First Christenson

Decl.”). Upon identification, at least one laboratory decided not to test pentobarbital anymore

without assurances that the drug will not be used for executions,

, and a lethal-injection-

drug manufacturer left the market altogether after public identification and harassment,

(discussing Glossip v. Gross,

, 869–71 (2015)). As the Court has previously

explained, “[t]he competitive harm here is quite clear—revelation of the companies’ identity could

lead to harassment, cost them business, or force them to exit the pentobarbital market entirely.”

CREW, 567 F. Supp. 3d at 212.

4. Segregability

For purposes of segregability, “[a]gencies are entitled to a presumption that they complied

with the obligation to disclose reasonably segregable material.” Sussman v. U.S. Marshals Serv.,

(D.C. Cir. 2007). The D.C. Circuit has not identified the exact level of detail

required to justify non-segregability. But “[a]ffidavits 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.” Ecological Rts. Found.

v. EPA,

, 66 (D.D.C. 2021) (citing Johnson v. Exec. Off. for U.S. Att’ys,

, 776 (D.C. Cir. 2002)).

The Department has satisfied those requirements. In its initial summary-judgment motion,

the Department represented that it conducted a “thorough search and careful review of records

responsive to CREW’s FOIA request” and that it had released all “segregable, non-exempt

information.” First Dep’t Mot. for Summ. J. at 1. It stated repeatedly that “every effort was made

14 to release all segregable information, including by conducting a page-by-page and line-by-line

review.” Id. at 27, 30, 33, 34, 38, 45. Further, in its renewed motion, the Department represents

that it engaged in further “review” of the records and released the segregated portions of an

additional seven records. See Ecological Rts. Found., 541 F. Supp. 3d at 66 (concluding that the

government had met its burden to justify its segregability finding where it attested that a careful

review confirmed that all reasonably segregable material had been disclosed and where the agency

“provided supplemental releases of information where possible”). The Vaughn index provides

further insight into the Department’s record-by-record review, including details about the scope of

particular redactions and releases. See generally Updated Vaughn Index. The Department’s

declarations and Vaughn index, combined with the presumption of agency compliance, establish

that the Department has complied with its segregability obligations.

B. Waiver

Finally, CREW argues that the Department waived FOIA Exemption 4 over material in

some withheld documents by publicly sharing the withheld information elsewhere. While the

Department was preparing its brief in the appeal of this Court’s previous ruling, it released seven

additional documents after it realized that “it had previously released some drug-concentration

and expiration-date information as part of the administrative record in other litigation over its

execution protocol.” CREW, 58 F.4th at 1271. On remand, CREW seeks the release of an

additional sixteen records. See CREW Cross-Mot. for Summ. J. at 37. While preparing its

summary judgment briefing this round, the Department released an additional seven records,

with redactions, numbered in the Vaughn index as Record 50, 51, 52, 111, 112, 139, and 140.

Dep’t Reply at 19. CREW now seeks the release of the remaining nine records―Records 22, 55,

56, 59, 63, 78, 94, 105, 136—and it asks the Court to conduct an in camera review of all sixteen

15 records, including the seven partly disclosed records, to confirm their non-segregability.

“Under [the] public-domain doctrine, materials normally immunized from disclosure under

FOIA lose their protective cloak once disclosed and preserved in a permanent public

record.” Cottone v. Reno,

(D.C. Cir. 1999). This doctrine follows from the

“logic of FOIA” because “where information requested is truly public, then enforcement of an

exemption cannot fulfill its purposes.”

(citation omitted) (cleaned up). “Prior disclosure of

similar information does not suffice; instead, the specific information sought by the plaintiff must

already be in the public domain by official disclosure.” Wolf v. CIA,

(D.C. Cir.

2007). As such, “a plaintiff asserting a claim of prior disclosure must bear the initial burden of

pointing to specific information in the public domain that appears to duplicate that being withheld.”

(citation omitted).

The parties’ briefing does not resolve the issue of whether the information sought by

CREW is already in the public domain. On one hand, CREW has not, as of this point, satisfied its

“burden of production” by pointing “to specific information in the public domain that appears to

duplicate that being withheld.” CREW, 58 F.4th at 1271. CREW attempts to identify duplication

by pinpointing Vaughn index entries of withheld records that have similar captions and timeframes

as the entries of now-disclosed records. CREW Cross-Mot. for Summ. J., Hurley Decl. at 2–3,

Dkt. 49-3. But the fact that certain captions appear repeatedly does not mean that the entries under

the captions are necessarily identical. Indeed, “[c]ategorization and repetition provide efficient

vehicles by which a court can review withholdings” and are altogether commonplace. Jud. Watch

v. FDA,

(D.D.C. 2016). Waiver occurs when the sought-after information is

the exact same matter as the released information. See, e.g., Cottone, 193 F.3d at 554–55 (finding

waiver over identifiable audio tapes played in open court). Although CREW has identified

16 information that might be similar to information in the public domain, it has not shown that the

information is the same.

On the other hand, the Department concedes that it has waived exemption of at least some

of the information contained in withheld records. It states that some withheld records contain “the

same quotes, contracts, invoices, or tests” as the publicly released records. Dep’t Reply at 20.

Though the Department asserts that the captioned records are not identical to the released records,

see

this context is beside the point. When identical information appears in a “reasonably

segregable portion[]” of a withheld record, the government must release the public portions of the

document with redactions. See CREW, 58 F.4th at 1273.

Against this muddy backdrop, the Court will order the Department to produce for in camera

review the sixteen challenged records without redactions, along with the five publicly disclosed

records for comparison. In doing so, the Court heeds the D.C. Circuit’s directive to “determine in

the first instance whether and to what extent any information in the public domain is the basis on

which the government seeks to withhold any records or reasonably segregable portions thereof

under Exemption 4.” Id. Given the factual history of this case, including the Department’s

multiple and belated releases, as well as the nature of the requested information, this is the rare

case in which a closer review of the record is warranted. Accordingly, the Court will exercise its

“broad discretion” and “conduct in camera inspection” of the sixteen challenged records. ACLU

v. Dep’t of Def.,

(D.D.C. 2012);

(a)(4)(B).

17 CONCLUSION

For the foregoing reasons, the Court grants the Department’s motion for summary

judgment; grants CREW’s cross-motion for summary judgment with respect to the sixteen

withheld records and otherwise denies CREW’s cross-motion; and orders the Department to

produce the sixteen challenged records and five public records for in camera review. A separate

order consistent with this decision accompanies this memorandum opinion.

________________________ DABNEY L. FRIEDRICH United States District Judge March 31, 2024

18