UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

FARM LABOR ORGANIZING COMMITTEE,

Plaintiff, Case No. 20-cv-645 (JMC)

v.

U.S. DEPARTMENT OF LABOR,

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff Farm Labor Organizing Committee (FLOC) filed a Freedom of Information Act

(FOIA) request with Defendant U.S. Department of Labor (DOL), seeking records that reveal the

companies certain farmers sell tobacco to. See ECF 23 at 35 ¶ 4. 1 DOL produced responsive

records but withheld some of the information FLOC sought under Exemption 4 of FOIA. See

ECF 23 at 44 ¶ 21. Exemption 4 protects “trade secrets and commercial or financial information

obtained from a person and privileged or confidential.”

(b)(4). The Parties dispute

whether those withholdings are proper, and cross-move for summary judgment on that issue. See

ECF 22; ECF 23.

FLOC has identified certain information that is already in the public domain. The Court

will GRANT FLOC’s motion for summary judgment (and DENY DOL’s motion for summary

judgment) as to that information and order DOL to disclose it. For the reasons explained below,

1 Unless otherwise indicated, the formatting of citations has been modified throughout this opinion, for example, by omitting internal quotation marks, emphases, citations, and alterations and by altering capitalization. All pincites to documents filed on the docket in this case are to the automatically generated ECF Page ID number that appears at the top of each page.

1 the Court will otherwise DENY WITHOUT PREJUDICE both Parties’ motions for summary

judgment and issue an order for further proceedings.

I. BACKGROUND

The following facts are undisputed except where noted. FLOC, a labor union that

represents agricultural workers, filed a FOIA request with DOL requesting the following records:

[T]he final findings of any US DOL investigation that resulted in a determination of a violation of any federal law or regulation in which US DOL determined as part of any such investigation that the specific farmer, agricultural employer, and/or farm labor contractor sold tobacco to the RJ Reynolds Tobacco Company, Universal Leaf Corporation, Altria, or Alliance One International. This request is limited to the states of North Carolina, Kentucky, Tennessee, and Virginia and the time frame sought is for any such investigation that was conducted in 2015, 2016, or 2017. ECF 1 ¶ 3; ECF 23 at 35 ¶ 4.

First, some background on DOL’s investigations. Agricultural workers are protected by

federal laws regulating their working conditions.

at 33–34 ¶ 1. DOL’s Wage and Hour Division

(WHD) conducts investigations to determine whether agricultural employers (who the Court will

refer to, for ease of reference, as “Growers”) are in compliance with those laws.

at 34 ¶ 2. In

the course of those investigations, WHD may ask Growers who they sell their products to.

at 34

¶ 3. Investigators memorialize their findings and conclusions in narrative reports.

at 34 ¶ 2.

DOL produced 1,178 pages of records responsive to FLOC’s FOIA request, withholding

certain information pursuant to FOIA Exemptions 4, 5, 7(C), 7(D), and 7(E).

at 36 ¶¶ 7, 8. DOL

provisionally redacted some information under Exemption 4, which protects “trade secrets and

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

(b)(4), because “WHD was in the process of obtaining input from submitters of

such information pursuant to Executive Order 12,600,”

at 36 ¶ 8. Executive Order 12,600

requires agencies to “establish procedures to notify submitters of records containing confidential

2 commercial information . . . when those records are requested under the Freedom of Information

Act.” Exec. Order No. 12,600,

(June 23, 1987). As part of that process, DOL

sent letters to 76 Growers and 20 tobacco companies (who the Court will refer to as “Buyers”)

identified in the responsive documents, providing them an opportunity to object to the disclosure

of their information. ECF 23 at 39–40 ¶¶ 14–15. The letters stated that, if the recipient failed to

respond by a certain date, DOL would release the information.

DOL received responses from

eight Growers, who provided letters to the agency objecting to the release of certain information—

including their Buyers’ identities—and asserting that they hold that information as confidential.

at 41 ¶ 16; see ECF 22 at 64–85.

DOL also received responses from four Buyers, contending that information about who

they buy tobacco from is confidential, commercial information and objecting to its disclosure. See

ECF 23 at 44 ¶ 21; see ECF 22 at 87–115. After receiving these responses, DOL conducted an

“independent assessment”: the agency “reviewed publicly available information, including any

available websites, to determine whether any of the withheld information was already available in

the public domain”; considered “the fact that tobacco contracts between many [Growers] and

tobacco purchasers include confidentiality clauses that prohibit them from disclosing the identity

of their tobacco customers”; and took into account “representations that the tobacco industry is []

highly competitive.” ECF 23 at 42–44 ¶¶ 18–20. As a result, DOL withheld under Exemption 4,

“references relating to any crop buyers from the investigations of the eight [Growers] who objected

to the disclosure of such information,” and any references to the four objecting Buyers and their

affiliates: Alliance One, China Tobacco International North America (CTINA), R.J. Reynolds

Tobacco Company, and Universal Leaf. See

at 44 ¶ 21; ECF 23 at 16.

3 The Parties cross-moved for summary judgment. ECF 22; ECF 23. Their sole dispute is

whether DOL properly withheld information about who Growers sell tobacco to under Exemption

4. See ECF 22 at 16; ECF 23 at 7.

II. LEGAL STANDARD

A. Summary Judgment

“[T]he vast majority of FOIA cases can be resolved on summary judgment.” Brayton v.

Off. of U.S. Trade Rep.,

(D.C. Cir. 2011). A court will grant a motion for

summary judgment when “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). A material

fact is one that “might affect the outcome of the suit under the governing law.” Anderson v. Liberty

Lobby, Inc.,

(1986). In evaluating a motion for summary judgment, “[t]he

evidence is to be viewed in the light most favorable to the nonmoving party and the court must

draw all reasonable inferences” in that party’s favor. Talavera v. Shah,

(D.C.

Cir. 2011). “When parties file cross-motions for summary judgment, each motion is viewed

separately, in the light most favorable to the non-moving party, with the court determining, for

each side, whether a judgment may be entered in accordance with the Rule 56 standard.” Howard

Town Ctr. Dev., LLC v. Howard Univ.,

(D.D.C. 2017).

In FOIA cases, it is the defending agency’s burden to prove it has complied with its

obligations under the statute. DOJ v. Tax Analysts,

, 142 n.3 (1989). To satisfy that

burden, the “agency must prove that each document that falls within the class requested either has

been produced, is unidentifiable[,] or is wholly exempt from the Act’s inspection requirements.”

Weisberg v. DOJ,

(D.C. Cir. 1980). A court may rely on the agency’s “relatively

detailed and non-conclusory” affidavits or declarations to resolve a FOIA case, SafeCard Servs.,

4 Inc. v. SEC,

(D.C. Cir. 1991), if they “describe the documents and the

justifications for nondisclosure with reasonably specific detail, demonstrate that the information

withheld logically falls within the claimed exemption, and are not controverted by either contrary

evidence in the record nor by evidence of agency bad faith,” Military Audit Project v. Casey,

(D.C. Cir. 1981).

B. Exemption 4

The sole issue in this case is whether DOL properly withheld the names of tobacco Buyers

pursuant to FOIA Exemption 4. Under Exemption 4, the agency need not produce “trade secrets

and commercial or financial information obtained from a person and privileged or confidential.”

(b)(4). “When an agency withholds non-trade-secret information under

Exemption 4, it must demonstrate that the withheld information is ‘(1) commercial or financial,

(2) obtained from a person, and (3) privileged or confidential.’” Citizens for Resp. & Ethics in

Washington v. DOJ,

, 1262 (D.C. Cir. 2023) (“CREW”) (quoting Pub. Citizen Health

Rsch. Grp. v. FDA,

(D.C. Cir. 1983)). The key dispute in this case is the third

element: whether the information is “confidential.”

In Food Marketing Institute v. Argus Leader Media,

(2019) (“Argus

Leader”), the Supreme Court considered two conditions that might be required for information to

be deemed confidential under Exemption 4: (1) that the information is “customarily kept private,

or at least closely held, by the person imparting it,” and (2) that “the party receiving [the

information] provides some assurance that it will remain secret.” See CREW, 58 F.4th at 1269;

Argus Leader, 588 U.S. at 434. The Court held that the first condition must be met for information

to be considered confidential, remarking that “it is hard to see how information could be deemed

confidential if its owner shares it freely.” Argus Leader, 588 U.S. at 434. In determining whether

5 a party customarily keeps certain information private, “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).

The Argus Leader Court did not decide whether the second condition—that “the party

receiving [the information] provide[] some assurance that it will remain secret”—is also necessary

to establish that information is confidential. 588 U.S. at 434. The D.C. Circuit has likewise

declined to resolve that question. CREW, 58 F.4th at 1269. Post-Argus Leader, multiple courts in

this District have found that assurances of privacy are not required but can be relevant to the

confidentiality analysis. See Energy Policy Advocates v. SEC, No. 23-cv-507,

,

at *4 (D.D.C. Oct. 17, 2024); Naumes v. Dep’t of the Army,

, 40 (D.D.C. 2022);

Ctr. for Med. Progress v. United States Dep’t of Health & Hum. Servs., No. 21-cv-642,

, at *8 (D.D.C. Sept. 3, 2022); Renewable Fuels Association v. EPA, No. 18-cv-2031,

, at *11–13 (D.D.C. Feb. 16, 2021); Stotter v. United States Agency for Int’l Dev.,

No. 14-cv-2156,

, at *5 (D.D.C. Oct. 3, 2020).

C. Foreseeable Harm

Even if a record meets Exemption 4’s requirements, the agency may only withhold the

information if it “reasonably foresees that disclosure would harm an interest protected by” the

exemption.

(a)(8)(A). The agency must “articulate both the nature of the harm from

release and the link between the specified harm and specific information contained in the material

withheld.” Reps. Comm. for Freedom of the Press v. FBI,

, 369 (D.C. Cir. 2021). “[F]ew

courts have considered what burden the foreseeable-harm requirement imposes on agencies that

seek to withhold records pursuant to Exemption 4.” Shteynlyuger v. Centers for Medicare &

Medicaid Servs.,

, 123 (D.D.C. 2023). Those that have opined on the issue have

6 said that an agency “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.” WP Co. LLC v. U.S.

Small Bus. Admin.,

, 119 (D.D.C. 2021) (quoting Ctr. for Investigative

Reporting v. U.S. Customs and Border Protection,

, 113 (D.D.C. 2019)).

III. ANALYSIS

The Court understands DOL to be making two alternative arguments for why its Exemption

4 withholdings are proper. DOL’s first theory is that the agency properly withheld Buyers’ names

under Exemption 4 because Growers treat that information as confidential and would be

foreseeably harmed by its disclosure. And DOL’s second theory is that, even if the record does not

establish how the Growers treat this information, the agency should win because the Buyers treat

that information as confidential. See generally ECF 22; ECF 25.

On the record before the Court, DOL cannot prevail on its first theory. First, there are eight

Growers who objected to disclosure via letter. Because the agency has submitted no non-hearsay

evidence about these Growers, the Court cannot find that they treat the identities of their Buyers

as confidential. Second, there are five Growers who filed affidavits in this litigation objecting to

disclosure. But those affidavits say nothing about whether the Growers would be harmed by

disclosure—and nothing else in the record establishes foreseeable harm. Third, the remaining

Growers did not respond to the agency, and did not submit any information stating whether they

treat this information as confidential. The record does reflect that some of these Growers (those

who sell to R.J. Reynolds, Universal Leaf, or CTINA) are bound by contract to treat those Buyers’

identities as confidential. But again, there is no competent evidence to establish that those Growers

would be foreseeably harmed by disclosure. And there is no information in the record at all about

7 whether Growers who contract with Alliance One treat that relationship as confidential or would

be harmed by disclosure. Thus, looking only to how Growers treat the information in question,

DOL has not discharged its burden to demonstrate that the withheld information properly falls

under Exemption 4.

That brings the Court to DOL’s alternative argument: that their Exemption 4 withholdings

are justified because the Buyers treat this information as confidential and would be foreseeably

harmed by its disclosure. FLOC argues that, in determining whether information is “confidential”

for Exemption 4 purposes, courts should look only to how the party who submitted that

information to the government (here, the Grower) treats it. See ECF 23 at 16–17. DOL seems to

contend that the court can consider whether any owner of the information (here, either the Grower

or the Buyer) treats it as confidential, regardless of whether that owner was the party who

submitted the information in question to the government. See ECF 25 at 18–19. Because the Parties

have not identified any case that squarely confronts that issue and it receives only limited attention

in the Parties’ briefs, the Court declines to resolve that question today. Instead, the Court will deny

each Parties’ cross-motion for summary judgment without prejudice to refiling, and will invite the

Parties to meet, confer, and set a schedule for renewed briefing that directly addresses this issue if

the Parties do not otherwise reach agreement on the remaining records.

In the meantime, however, FLOC has identified one piece of information that is in the

public domain: the fact that Strickland Farms sold tobacco to Alliance One in 2016. If DOL has

withheld that information, it must disclose it. The Court will therefore grant FLOC’s motion for

summary judgment (and deny DOL’s motion for summary judgment) as to that withholding.

8 A. DOL Does Not Prevail on its First Theory

DOL contends that its Exemption 4 withholdings were proper because the Growers treat

their Buyers’ identities as confidential and would be foreseeably harmed if that information were

disclosed. DOL has not produced competent record evidence such that it is entitled to summary

judgment on this ground.

a. Growers Who Objected via Letter

Eight Growers submitted letters to the agency objecting to the disclosure of their Buyers’

identities, stating that they hold this information as confidential and would be harmed by its

release. 2 See ECF 22 at 64–85. FLOC argues that these letters are hearsay because they are

unsworn, out-of-court statements offered for the truth of the matter asserted. ECF 23 at 13–14; see

Fed. R. Evid. 801(c). Generally, hearsay “counts for nothing on summary judgment.” See Greer

v. Paulson,

(D.C. Cir. 2007). In FOIA cases, courts may consider hearsay

when assessing the adequacy of an agency’s search, and agency declarants can rely on information

obtained through inter-agency consultation. See Humane Soc’y of United States v. Animal & Plant

Health Inspection Serv.,

(D.D.C. 2019); DiBacco v. Dep’t of the Army,

(D.C. Cir. 2019) (explaining that FOIA declarations can include information relayed

to an agency employee by her subordinates “without running afoul of Rule 56”). Neither exception

applies to these letters: FLOC does not challenge the adequacy of the agency’s search, and the

letters were obtained from third parties, not through inter-agency consultation. Courts in this

District and beyond have therefore declined to “rely on out-of-court statements from private

third-parties to justify an agency’s withholding” in FOIA cases. Humane Soc’y of United States,

2 Those eight Growers are: Carroll Coffman, Dennis J. Burnett, Doug Dunaway, Brian Forsee of Maple Heights Farm, William Austin Newton, Steve Hamilton, Bruce Wade of Wade Farms Labor Management, LLC, and Wellington Bacon, Jr. See ECF 22 at 64–85.

9

; see Pub. Citizen v. U.S. Dep’t of Agric., No. 21-cv-1408,

,

at *2 (D.D.C. Aug. 5, 2022) (collecting cases); Leopold v. United States Dep’t of Just., No. 19-cv-

3192,

, *5–6 (D.D.C. Jan. 13, 2021) (declining to rely on unsworn third-party

letters because “[e]ach letter is a statement made out of court and the government has not

established the applicability of any hearsay exception”); Brown v. Perez,

, 1231–33

(10th Cir. 2016) (declining to consider third-party letters in assessing Exemption 4 argument

because those letters were hearsay). Absent an exception, the Growers’ letters are inadmissible

hearsay.

DOL argues that the letters are admissible because “they consist of objections by the

various submitters,” and those objections “are relevant because they exist, i.e., the various

submitters object for the reasons articulated.” ECF 25 at 13. The Court understands DOL to be

arguing that the letters are admissible not for their truth (i.e. that the Growers in fact treat this

information as confidential), but for the effect on the listener (i.e. that the Growers’ objections led

the agency to believe that this information fell within Exemption 4). See Mar. 14, 2023 Hr’g Tr.

15:21–16:2 (government counsel making this argument). Fair enough—but that does not get DOL

where it needs to go. The question for the Court is not whether DOL had some good-faith or

reasonable basis to withhold this information under Exemption 4 (which unsworn third party

objections might well provide). The question is whether these Growers in fact treat their Buyers’

identities as confidential and would be foreseeably harmed if that information were disclosed. See

Humane Soc’y of United States,

. So, even accepting that the Growers’ letters

10 are admissible for the effect they had on agency employees rather than for the truth, that effect is

ultimately “irrelevant” to the Court’s Exemption 4 inquiry.

. 3

Next, DOL argues that even if the letters are themselves inadmissible, the Court can rely

on the declaration of Patrice Torres, Associate Administrator for Administrative Operations for

the Wage and Hour Division, which describes the letters. See ECF 25 at 11–12. Citing to the

Growers’ letters, Torres states that “WHD received responses from eight [Growers] who asserted

that information relating to their crops’ buyers is confidential, commercial information that they

do not disclose to the public.” ECF 22 at 45 ¶ 18. This does not cure the agency’s hearsay problem.

To be considered on summary judgment, a declaration must “set out facts that would be admissible

in evidence.” Fed. R. Civ. P. 56(c)(4). The Growers’ assertions that they treat their Buyers’

identities as confidential are still unsworn out-of-court statements, even when regurgitated in an

agency declaration.

DOL counters that Torres can rely on the letters because they “were obtained within the

course of her official duties.” ECF 25 at 13. That is true as to Rule 56’s requirement that “[a]n

affidavit or declaration used to support or oppose a [summary judgment] motion must be made on

personal knowledge.” Fed. R. Civ. P. 56(c)(4). In FOIA cases, agency declarants are said to have

“personal knowledge” of information they obtain in the course of their official duties. Hainey v.

U.S. Dep’t of the Interior,

(D.D.C. 2013). But the problem here is not

whether Torres has personal knowledge of these eight Growers’ practices. The problem is that she

3 DOL makes passing reference to the residual hearsay exception, which provides that a hearsay statement that does not fall under any other exception is admissible if it “is supported by sufficient guarantees of trustworthiness—after considering the totality of circumstances under which it was made and evidence, if any, corroborating the statement,” and “it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts.” Fed. R. Evid. 807(a); see ECF 25 at 10. But DOL offers no argument on how the letters fall into this exception. In particular, it is not clear how the letters are “more probative . . . than any other evidence that the proponent can obtain through reasonable efforts,” given that the agency is in contact with these eight Growers and could therefore presumably request declarations or other admissible evidence from them. Fed. R. Evid. 807(a)(2).

11 communicates that information to the Court via an inadmissible hearsay statement—and DOL has

not identified any exception under which those statements fall or explained how this information

could be “presented in a form that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2); see

Humane Soc’y of United States, 386 F. Supp. 3d at 43–44 (declining to consider certain “second-

hand, unsubstantiated accounts in the [agency]’s declaration” because they were inadmissible

hearsay).

In sum, the Court cannot agree with DOL that either the Growers’ letters or the Torres

Declaration establish that the eight objecting Growers treat their Buyers’ identities as confidential.

b. Growers Who Filed Declarations

Five Growers submitted declarations in this lawsuit averring that they each “hold[] as

confidential and private—and, as a matter of course, do[] not disclose—the identities of [their]

buyers,” and that DOL investigators “assured [them] that the Department of Labor would hold that

information about the[ir] buyers of tobacco leaf as confidential and not disclose such information

to any third party.” 4 ECF 25-1 at 3, 6, 9, 12, 15. But an agency may withhold records under

Exemption 4 only if it “reasonably foresees that disclosure would harm an interest protected by”

that exemption.

(a)(8)(A). The five Grower declarations say nothing about whether

and how the Growers would be harmed by disclosure. See ECF 25-1 at 2–16.

Instead, the agency relies on the Torres Declaration to support its foreseeable harm

argument. See ECF 22 at 36. The Torres Declaration states:

WHD also considered representations that tobacco contracts between many [Growers] and [Buyers] include confidentiality clauses that prohibit them from disclosing the identity of their tobacco customers. Revealing this information[] could harm their ability to obtain future contracts from their currents clients and result in poaching of their current clients by other [Growers]. Even in the

4 Those Farmers are: Andy Clapp of A&M Clapp Farm, Tyler Durham of Durham Brothers Farms, LLC, Jim Jennings of J.F. Leaf, Patrick Edwards of Patrick Edwards Farms, LLC, and Fred Hart of Hartland, Inc. ECF 25-1 at 2–16.

12 absence of a confidentiality provision, disclosure of a[] [Grower’s] tobacco purchaser would put the [Grower] at a competitive disadvantage with other [Growers].

ECF 22 at 45–46 ¶ 21. Although FOIA cases can often be resolved by looking to agency affidavits,

those affidavits must “contain reasonable specificity of detail rather than merely conclusory

statements.” Aguiar v. Drug Enf’t Admin.,

, 734–35 (D.C. Cir. 2017). And

“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” to survive

summary judgment. Ctr. for Med. Progress,

, at *10. Here, it is not clear how

the second and third sentences of Torres’ statement follow from the first. The agency “considered

representations” that many Buyers and Growers have confidentiality clauses in their contracts. But

how did the agency conclude, based on the existence of those confidentiality clauses alone, that

disclosing this information would lead to these particular harms for Growers (difficulty obtaining

future contracts from their current clients, and having their current clients poached)? Did the

agency just assume that would be the case, or did they come to that conclusion based on some

information that is absent from the declaration? 5 The Court must be able to find that the agency

“reasonably” foresaw that disclosure would harm Growers, but absent any connective tissue

between the first and second sentences of this statement, the Court cannot find that the agency’s

conclusion here was reasonable. See

(a)(8)(A). Viewing the evidence in the light

most favorable to FLOC, as the Court must, the Court cannot find foreseeable harm based on the

Torres Declaration alone.

5 It is even harder to understand how the agency concluded, based on the existence of these confidentiality provisions, that those Growers not bound by confidentiality agreements would be foreseeably harmed by disclosure.

13 c. Non-Objecting Growers

The remaining Growers did not respond to the agency’s letter and did not themselves

provide any information about whether they treat this information as confidential and would be

foreseeably harmed by its disclosure. The record reflects that at least some of these Growers—

those who sell to R.J. Reynolds, Universal Leaf, or CTINA—are bound by contract to treat those

Buyers’ identities as confidential. Those three tobacco companies have submitted declarations

stating that their contracts with Growers contain nondisclosure agreements, requiring that the

Grower keep the buyer-seller relationship confidential. See ECF 22 at 104–05 ¶ 31;

at 109 ¶ 7;

at 115 ¶ 5. But regardless, the agency is not entitled to summary judgment as to these Growers

because, once again, it stumbles at the foreseeable harm hurdle. As the Court explained supra, the

Torres Declaration is insufficient to establish reasonably foreseeable harm, and the agency points

to no other evidence to establish that the Growers (rather than the Buyers) would be harmed by

disclosure.

Unlike the R.J. Reynolds, Universal Leaf, and CTINA declarations, the declaration

provided by Alliance One says nothing about confidentiality agreements with Growers. See

ECF 22 at 112–13. Because the Alliance One declaration speaks only to how Alliance One treats

this information, not how Growers treat this information, there is no evidence that Growers treat

their relationship with Alliance One as confidential. See id. And again, for the same reasons stated

above, there is no record evidence indicating that Growers who contract with Alliance One would

be foreseeably harmed by disclosure.

* * *

Looking only to whether Growers treat this information as confidential and would be

foreseeably harmed by its disclosure, the agency has not justified its Exemption 4 withholdings.

DOL has adduced no non-hearsay evidence demonstrating that the eight Growers who objected to 14 disclosure via letter treat their Buyers’ identities as confidential. Although five Growers filed

declarations averring that they treat this information as confidential, and the record reflects that

Growers who contract with R.J. Reynolds, Universal Leaf, and CTINA are bound by contract to

treat those Buyers’ identities as confidential, there is no competent record evidence to establish

that those Growers would be foreseeably harmed if the information were disclosed. And the record

contains no information at all about whether Growers who contract with Alliance One treat this

information as confidential or would be harmed by its disclosure.

B. DOL’s Second Theory

That brings us to DOL’s second, alternative theory of the case. DOL urges the Court to

consider whether the Buyers treat this information as confidential and would be foreseeably

harmed by its release. See ECF 25 at 18–19. The agency has submitted declarations from each of

the four Buyers—R.J. Reynolds, Universal Leaf, CTINA, and Alliance One—stating that the

company treats their Growers’ identities as confidential and would be harmed if that information

were released. See ECF 22 at 97–115. FLOC counters that, in determining whether information is

“confidential” for Exemption 4 purposes, courts should look only to how the party who submitted

that information to the government (here, the Grower) treats it. See ECF 23 at 16–17. Although

the Parties raise this issue, it receives limited airtime in their briefs.

This may be a question of first impression that could have ramifications beyond this case

and would benefit from more fulsome briefing. The Court therefore finds it appropriate to deny

each Party’s motion for summary judgment without prejudice and allow the Parties—after meeting

and conferring—the opportunity to file renewed motions that address this question.

In the meantime, however, FLOC has identified one piece of information that is in the

public domain and must be disclosed. The Court takes up that issue below.

15 C. Public Domain

FLOC has identified one piece of information that is already in the public domain—the

fact that Strickland Farms sold tobacco to Alliance One during the relevant time period. See

ECF 23 at 20. If the agency has withheld that information, it must disclose it to FLOC.

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.”

CREW, 58 F.4th at 1271 (quoting Cottone v. Reno,

(D.C. Cir. 1999)). “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.”

(quoting Wolf v. CIA,

(D.C. Cir. 2007)). FLOC points out that, in response to a different FOIA request,

DOL disclosed a narrative report stating that one of the farmers at issue in this case, Strickland

Farms, sold tobacco to Alliance One in 2016. See ECF 23-1 at 116–17. That information is now

in the public domain by virtue of the government’s official disclosure. See Students Against

Genocide v. Dep’t of State,

(D.C. Cir. 2001) (“[A] disclosure made to any FOIA

requester is effectively a disclosure to the world at large.”). But here, DOL has redacted the names

of companies who bought tobacco from Strickland Farms in 2016. See ECF 23-6 at 32, 41, 45

(FOIA production, redacting names of buyers pursuant to Exemption 4). The Court will therefore

grant FLOC’s motion for summary judgment (and deny DOL’s motion for summary judgment) as

to any record that redacts, pursuant to Exemption 4, the fact that Strickland Farms sold tobacco to

Alliance One in 2016. If DOL withheld that information, it must disclose it. 6

6 FLOC also points to documents in the public domain demonstrating that Anderson Farms and J.B. Rose sold tobacco to R.J. Reynolds. See ECF 23-1 at 118 (prior FOIA production stating that Anderson Farms sold tobacco to R.J. Reynolds during the relevant time period);

at 4–5 ¶ 16; https://perma.cc/7NVD-AERU (R.J. Reynolds brochure naming J.B. Rose as one of its “Most Valuable Partners” and identifying it as a supplier). But Anderson Farms and J.B. Rose do not appear to be among the farmers whose narrative reports are at issue in this case, so there is no occasion for the Court to order any disclosure under the public domain doctrine.

16 * * *

For the foregoing reasons, the Court GRANTS IN PART FLOC’s cross-motion for

summary judgment, ECF 23, and DENIES IN PART DOL’s cross-motion for summary

judgment, ECF 22, as to any record that redacts, pursuant to Exemption 4, the fact that Strickland

Farms sold tobacco to Alliance One in 2016. The Court otherwise DENIES WITHOUT

PREJUDICE DOL’s motion for summary judgment, ECF 22, and FLOC’s cross-motion for

summary judgment, ECF 23. The Court will issue a separate order directing the parties to meet

and confer and providing an opportunity for renewed briefing as to DOL’s second theory.

SO ORDERED.

__________________________ JIA M. COBB United States District Judge

Date: July 28, 2025

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