UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AARON GREENSPAN,

Plaintiff,

v. No. 22-cv-280 (DLF) DEPARTMENT OF TRANSPORTATION, et al.,

Defendants.

MEMORANDUM OPINION

Aaron Greenspan brings this Freedom of Information Act (FOIA) action, see

, against the Department of Transportation and the National Highway Traffic Safety

Administration (NHTSA) to obtain records concerning NHTSA’s oversight of Tesla, Inc. (Tesla).

Third Am. Compl. ¶ 1, Dkt. 21. Before the Court is Greenspan’s Motion for Summary Judgment,

Dkt. 38, and the defendants’ Cross-Motion for Summary Judgment, Dkt. 43. For the following

reasons, the Court will deny Greenspan’s motion and grant the defendants’ motion.

I. BACKGROUND

Greenspan is the founder and operator of Plainsite, an online platform that seeks to “further

legal transparency and anti-corruption.” Third. Am. Compl. ¶ 2. In 2021, Greenspan submitted

three FOIA requests to NHTSA for records concerning Tesla’s self-driving technology,

,

radar disabling and removal,

, and certain communications to or from NHTSA employee

Ajit Alkondon,

. NHTSA processed 23,898 pages of material in response to Greenspan’s

FOIA requests. Hendrickson Decl. ¶ 14, Dkt. 43-3. It withheld 1,385 documents constituting

20,341 pages, 159 spreadsheets, and 64 media files under FOIA Exemption 4 (concerning confidential business information), id.; material within 115 documents under FOIA Exemption 5

(concerning privileged information), Humphrey Decl. ¶ 18, Dkt. 43-4; and material within 684

documents, 127 spreadsheets, and 17 media files under FOIA Exemption 6 (concerning private

information),

.

On February 3, 2022, Greenspan filed this lawsuit. His operative complaint alleges that

NHTSA violated the FOIA in its response to each of his three requests. See Third Am. Compl.

¶¶ 1, 49–72. In December 2024, Greenspan moved for summary judgment, claiming that the “vast

majority” of NHTSA’s Exemption 4 withholdings were based on improperly adjudicated

confidential treatment requests. Pl.’s Mot. for Summ. J. at 5, Dkt. 38-1; see

at 5–12. The

defendants cross-moved for summary judgment. Defs.’ Cross-Mot. for Summ. J. & Opp’n, Dkt.

43-1.

II. LEGAL STANDARDS

Rule 56 of the Federal Rules of Civil Procedure states that “[t]he 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). All facts and inferences

must be viewed in the light most favorable to the nonmoving party, and the agency bears the burden

of showing that it complied with the FOIA. Chambers v. DOJ,

(D.C. Cir.

2009).

To warrant summary judgment in a FOIA action, a federal agency must demonstrate that

it “conduct[ed] a search reasonably calculated to uncover all relevant documents,” Kowalczyk v.

DOJ,

(D.C. Cir. 1996) (citation modified), and that “each document that falls

within the class requested either has been produced, is unidentifiable, or is wholly exempt from

the [FOIA’s] inspection requirements,” Nat’l Cable Television Ass’n v. FCC,

, 186

2 (D.C. Cir. 1973). To withhold records covered by an exemption, the agency must further show

that (1) “it reasonably foresees that disclosure would harm an interest protected by that

exemption”; and (2) “it has released any reasonably segregable information within the exempt

records that could be disclosed without causing reasonably foreseeable harm to an interest

protected by that exemption.” Rudometkin v. United States,

(D.C. Cir. 2025)

(citation modified); see

at 487–88;

(a)(8)(A). “[F]ederal courts . . . rely on

government affidavits to determine whether the statutory obligations of the FOIA have been met.”

Perry v. Block,

(D.C. Cir. 1982) (per curiam). “Agency affidavits are accorded

a presumption of good faith,” SafeCard Servs., Inc. v. SEC,

(D.C. Cir. 1991),

and “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,” Jud.

Watch, Inc. v. U.S. Secret Serv.,

(D.C. Cir. 2013) (citation modified). “[T]he

vast majority of FOIA cases can be resolved on summary judgment.” Brayton v. Off. of the U.S.

Trade Representative,

(D.C. Cir. 2011).

III. ANALYSIS

The parties disagree whether (1) NHTSA properly justified its invocation of Exemption 4

to withhold information (a) that is confidential and (b) disclosure of which would cause foreseeable

harm; (2) NHTSA properly justified its invocation of Exemption 5 to withhold information under

the deliberative process privilege; (3) NHTSA disclosed all reasonably segregable material; and

3 (4) NHTSA acted in good faith.1 For the reasons that follow, the Court will conclude that the

defendants have shown that NHTSA met its FOIA obligations as to each of these issues.

A. Exemption 4

Exemption 4 allows an agency to withhold “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. and Ethics in Wash. (CREW) v. DOJ,

, 1262

(D.C. Cir. 2023) (citation modified). NHTSA has adequately shown—and Greenspan does not

dispute—that its withholdings consist of commercial information obtained from Tesla. See Gates

Decl. ¶¶ 6, 10–66, Dkt. 43-5; CREW, 58 F.4th at 1265–66 (noting that “commercial” information

includes that concerning “the making of a profit”);

(2) (“[A] ‘person’ includes

[a] . . . corporation.”). Greenspan argues, however, that the information NHTSA withheld under

Exemption 4 was not confidential and that its disclosure would not have resulted in reasonably

foreseeable harm. The Court disagrees.

1 Because Greenspan narrowed the FOIA requests at issue in this case to those documents already processed, see Pl.’s Email, ECF 39-1, the adequacy of the search is not at issue. Furthermore, Greenspan does not contest the defendants’ arguments that NHTSA adequately supported its Exemption 5 withholdings based on the attorney-client communications and confidential commercial information privileges and its Exemption 6 withholdings. See Defs.’ Cross-Mot. for Summ. J. & Opp’n at 33–38; Defs.’ Reply at 15–19, Dkt. 47; see generally Pl.’s Reply & Opp’n, Dkt. 45. As to these issues, therefore, “there is no dispute for the Court to adjudicate, and the requirements of Rule 56 have been satisfied.” Dutton v. DOJ,

, 126 n.6 (D.D.C. 2018); see Hopkins v. Women’s Div., Gen. Bd. of Glob. Ministries,

(D.D.C. 2003) (“It is well understood in this Circuit that when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded.”).

4 1. Confidential

The term “confidential” means “private or secret.” Food Mktg. Inst. v. Argus Leader

Media,

(2019) (citation modified). Two conditions suggest confidentiality:

(1) the information is “customarily kept private, or at least closely held, by the person imparting

it,” such that it is “known only to a limited few,” “not publicly disseminated,” or “intended to be

held in confidence or kept secret”; and (2) the receiving party “provides some assurance that [the

information] will remain secret.”

(citation modified). “At least where commercial or financial

information is both customarily and actually treated as private by its owner and provided to the

government under an assurance of privacy, the information is ‘confidential’ within the meaning of

Exemption 4.”

.

NHTSA’s withholdings meet both criteria. The declaration of Eddie Gates, the Director

for Field Reliability Engineering at Tesla, establishes that Tesla “customarily and actually treats”

the withheld documents as “technical and proprietary information.” Gates Decl. ¶ 6; see

¶¶ 6–

7. Indeed, Tesla uses “binding nondisclosure agreements or similar mechanisms” when sharing

that information with outside consultants and “takes extensive measures to guard and protect this

information even internally.” Id. ¶ 6. Tesla also provided the withheld information to NHTSA

“under an assurance that the information w[ould] remain confidential and w[ould] be kept private,”

id. ¶ 9, as the declaration of Allison Hendrickson, a NHTSA Senior Trial Attorney, confirms, see

Hendrickson Decl. ¶ 16; see also

;

.

Greenspan does not dispute that Tesla customarily keeps the withheld information private,

or that NHTSA assured Tesla that it would keep the withheld information secret. Instead, he cites

news stories and information leaks to argue that, even if the withheld information remains private

and under Tesla’s control, “it is still true that similar information of the same type absolutely does

5 not.” Pl.’s Reply & Opp’n at 8; see

at 8–10. It is true that “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 (citation modified). But, “[a]s the party

advocating disclosure, [Greenspan] bears the burden of production and must point to specific

information in the public domain that appears to duplicate that being withheld.” Id. (citation

modified). “Prior disclosure of similar information does not suffice; instead, the specific

information sought by [Greenspan] must already be in the public domain by official disclosure.”

Id. (citation modified).

The only specific and actually withheld information that Greenspan identifies as being in

the public record relates to the terms of Tesla’s Early Access Program. See Pl.’s Reply & Opp’n

at 9–10. But he fails to show that this information was officially disclosed. See id. at 9 (“[A]

member of Tesla’s Early Access Program . . . posted an e-mail he received from Tesla stating that

he had been ‘posting its internal information.’”); cf. Kowal v. DOJ,

, 1033 (D.C.

Cir. 2024) (“[A]n unauthorized disclosure does not waive a FOIA exemption.”). As such,

Greenspan has not met his burden of establishing any prior disclosure of the withheld information.

Greenspan’s primary argument to contest confidentiality—and the sole basis for his

summary judgment motion—rests on his interpretation of

. As relevant, that

regulation states: “When information claimed to be confidential is requested under the [FOIA], the

determination will be made within twenty (20) working days after NHTSA receives such a request

or within thirty (30) working days in unusual circumstances.”

(a). From this

language, Greenspan reasons that NHTSA must grant or else deem expired any related confidential

treatment requests within 20 working days of a FOIA request. Pl.’s Mot. for Summ. J. at 5–7.

According to Greenspan, documents under “expired” confidential treatment requests are, by

6 default, not confidential and cannot be withheld under FOIA Exemption 4. See

, 5–7.

Because NHTSA waited more than 20 days before granting Tesla’s “expired” confidentiality

requests, he argues, NHTSA improperly withheld the underlying documents as confidential. See

The Court disagrees—indeed, it has already rejected this argument twice over. See Order

at 4, Dkt. 28 (Order I); Order at 4–5, Dkt. 33 (Order II).

First, even if Greenspan’s interpretation of

is correct, “whether an

agency treats information as confidential is not dispositive of whether that information may be

withheld under FOIA.” Order I at 4. “[T]he federal courts, and not the administrative agencies,

are ultimately responsible for construing the language of the FOIA,” and “agencies cannot alter

the dictates of the Act by their own express or implied promises of confidentiality.” Pub. Citizen

Health Rsch. Grp. v. FDA,

(D.C. Cir. 1983); cf.

(“[A]lthough the FDA

has endorsed the Restatement definition [of ‘trade secret’] and adopted it in its FOIA regulations,

we are not bound by the agency’s interpretive regulation.”). Just as “there is nothing about the

failure of an agency to produce documents promptly that would require the agency to waive

otherwise properly claimed FOIA exemptions,” Skurow v. DHS,

(D.D.C.

2012), there is likewise nothing about NHTSA’s failure to make confidentiality determinations

within regulatory deadlines that waives an otherwise properly claimed Exemption 4 withholding

under the FOIA, see Order I at 4; cf. Skurow,

(“An agency’s failure to

respond within the statutorily prescribed deadlines merely means that a requesting party may seek

judicial supervision of the agency’s response.”).

Second, the regulations to which Greenspan points do not themselves support his argument

that documents are presumptively public until a confidential treatment request is granted, or that

7 such a request can expire. Contra Pl.’s Mot. for Summ. J. at 7–8. Rather, the regulations

contemplate that “[i]nformation received by NHTSA, for which a properly filed confidentiality

request is submitted, will be kept confidential until the Chief Counsel makes a determination

regarding its confidentiality.”

(a); see

§ 512.23(a)(4) (“No information will

be disclosed . . . unless the submitter of the information is given written notice.”); id. § 512.18(b)

(“If a request for confidential treatment is denied in whole or in part . . . [t]he information may be

made available to the public twenty (20) working days after the submitter of the information has

received notice of the denial, unless a request for reconsideration is filed.”). And nowhere do they

state that confidentiality requests expire if not ruled on within the 20-day timeframe. Order II at

5.

Greenspan insists that a prior administrative appeal decision arising from one of his

previous FOIA requests vindicates his interpretation of

. See Pl.’s Mot. for Summ.

J. at 11–12. But agency adjudications are not binding on this Court. Black Rock City LLC v.

Haaland, 19-cv-3729,

, at *5 (D.D.C. Mar. 21, 2022). And, in any event,

Greenspan’s reading of the administrative appeal decision is unpersuasive. As here, that decision

involved records that NHTSA withheld under Exemption 4. See Administrative Appeal Decision

at 2–3, Dkt. 26-1. Unlike here, however, the withheld documents were subject to pending requests

for confidential treatment. See

. As such, Chief Counsel Ann Carlsen remanded

Greenspan’s FOIA request for “processing consistent with the regulatory requirements.”

Greenspan argues that the fact that NHTSA’s subsequent FOIA response did not again

invoke Exemption 4 establishes that the agency “viewed the request for confidential treatment as

denied and agreed that [Greenspan] defeated any Exemption 4 objection.” Pl.’s Mot. for Summ.

J. at 12. But again, Greenspan’s interpretation falters. As an initial matter, the defendants

8 represent that NHTSA is “continu[ing] to process the FOIA request [Greenspan] references.”

Defs.’ Statement of Material Facts at 8, Dkt. 43-2. As the agency may yet withhold documents

under approved confidentiality requests, there is no basis on which to conclude that the agency has

abandoned reliance on Exemption 4 in that matter. Furthermore, Greenspan ignores aspects of the

administrative appeal decision that directly undercut his preferred reading. True, the decision

notes that confidentiality determinations “will ordinarily be made within twenty working days.”

Administrative Appeal Decision at 3. But it further states that, “when a properly filed

confidentiality request is submitted for information submitted to the agency, it ‘will be kept

confidential until the Chief Counsel makes a determination regarding its confidentiality’” and that

“[i]nformation subject to such a request ‘will not be disclosed publicly.’”

at 2–3 (quoting

). If anything, therefore, the decision affirms that Tesla’s information is presumed

confidential until NHTSA renders a determination, even if that determination is made after the

ordinary 20-day timeframe.

Accordingly, the defendants have adequately shown the confidentiality of NHTSA’s

Exemption 4 withholdings under the FOIA criteria.2

2. Foreseeable Harm

To withhold records under a FOIA exemption, an agency must show that it “reasonably

foresees that disclosure would harm an interest protected by that exemption.” Rudometkin, 140

2 In moving for summary judgment, Greenspan invokes, for the first time, the Accardi doctrine to argue that NHTSA has violated a rule—i.e.,

.17—that “limits the agency’s discretion and imposes rights or obligations on the respective parties.” Pl.’s Mot. for Summ. J. at 8 (citation modified); see

at 8–9. To the extent that Greenspan is now asserting an Accardi claim, summary judgment is limited to claims raised in the complaint. See Winder v. District of Columbia,

, 110–11 (D.D.C. 2008). And to the extent that Greenspan is arguing that NHTSA is bound to a regulatory timeline such that it cannot withhold the requested documents as confidential under the FOIA, the Court has already rejected that proposition.

9 F.4th at 491 (citation modified); see

(a)(8)(A). In the Exemption 4 context, this

requirement is met if disclosure would “caus[e] genuine harm to the submitter’s economic or

business interests and thereby dissuad[e] others from submitting similar information to the

government.” CREW v. DOJ,

, 125 (D.D.C. 2024) (citation modified).

NHTSA reasonably determined that disclosure of the withheld information would

genuinely harm Tesla’s commercial interests. The Gates Declaration is no “perfunctory, sweeping,

and undifferentiated declaration.” Reps. Comm. for Freedom of the Press (RCFP) v. FBI,

(D.C. Cir. 2021). Rather, it categorizes each withheld document into dozens of categories

of confidential information. See Gates Decl. ¶ 10–66; see also Rudometkin,

(“[T]he Government may justify withholding or redacting records category-of-document by

category-of-document rather than document-by-document.” (citation modified)). Nor does the

declaration offer mere “boilerplate” assertions of harm. Leopold v. DOJ, 19-cv-2796,

, at *4 (D.D.C. July 23, 2021) (“While nearly identical boilerplate statements of harm are

insufficient, the mere recitation of similar reasoning in showing harm does not by itself render that

reasoning ‘boilerplate.’” (citation modified)). Contra Pl.’s Reply & Opp’n at 10–11. Indeed, the

declaration articulates direct links between each specified harm and the specific information within

each category of withheld material. See Gates Decl. ¶¶ 11–66; see also, e.g.,

(“Public

disclosure of Tesla’s data logs reveals the type of information Tesla is able to collect from vehicles,

how the data is collected and in what format, and how Tesla can use vehicle data to evaluate field

incidents. Public disclosure of this confidential information would enable competitors to improve

their own data collection practices and ultimately improve their products and customer

experience.”);

(“Public disclosure of Tesla Service estimates would cause competitive

harm to Tesla by giving Tesla’s competitors insight into how Tesla Service evaluates, diagnoses

10 and repairs vehicles[,] . . . [which] would be used by competitors to improve their own service-

related processes and customer service.”). NHTSA, for its part, “performed a line-by-line review

of the documents withheld in full or in part and confirmed . . . that further . . . disclosure of the[

withheld] records would cause foreseeable competitive harm to Tesla and, because disclosure

would impact the willingness of entities such as Tesla to provide confidential information,

foreseeable harm to NHTSA itself in obtaining information necessary to fulfill its core safety

mission.” Hendrickson Decl. ¶ 25; see

(“NHTSA has reviewed the declaration of Eddie

Gates, in connection with its own independent review of the records at issue, and is independently

satisfied that the records that NHTSA has withheld in full or in part are appropriately withheld

under Exemption 4.”). In the Court’s view, these representations reflect that NHTSA has

“specifically and thoughtfully determined that it reasonably foresees that disclosure of [these

documents] would be harmful.” Groenendal v. Exec. Off. for U.S. Att’ys, 20-cv-1030,

, at *13 (D.D.C. Mar. 27, 2024) (citation modified).

In response, Greenspan contends that the withholdings are “less likely” to contain any

harmful competitive information because (1) Tesla products have “barely changed,”

(2) enthusiasts have published deconstructions of their own Tesla vehicles, and (3) the Early

Access Program terms have been publicly litigated. Pl.’s Reply & Opp’n at 11. But the

accessibility of other publicly available documents does not eliminate the harm associated with

releasing these specific documents. In fact, the “public availability of analogous data” can “make

the requested data more harmful if the public data can be combined with the requested data to

obtain commercial information that is likely to cause substantial competitive harm.” Biles v. HHS,

(D.D.C. 2013). And Greenspan has not shown that Tesla officially

confirmed whether any of that public information is true, which “can be informative in itself” to

11 Tesla’s competitors. Savage v. DOJ, No. 22-cv-2477,

, at *10 (D.D.C. June 7,

2024); cf. Knight First Amend. Inst. at Columbia Univ. v. CIA,

(D.C. Cir. 2021)

(“[A] statement made by one in a position to know is given unique meaning and weight. While

information from outside an agency may be viewed as possibly erroneous, confirmation by the

agency itself would remove any lingering doubts.” (citation modified)).

The defendants have met their burden of showing that Tesla faces foreseeable harm from

the disclosure of the withheld information.

B. Exemption 5

Exemption 5 protects “intra-agency” documents from disclosure,

(b)(5), by

incorporating “the traditional privileges that the Government could assert in civil litigation against

a private litigant,” Loving v. DOJ,

(D.C. Cir. 2008) (citation modified). Because

NHTSA’s Exemption 5 withholdings consist of documents sent from agency staff or attorneys to

other agency staff or attorneys and other internal documents, see Exemption 5/6 Vaughn Index,

Defs.’ Ex. 2 at 77–81, 101–07, Dkt. 43-7, they qualify as intra-agency documents. The question

before the Court is whether these documents would be subject to a traditional privilege.

NHTSA determined that material in 111 documents was exempt from disclosure under the

deliberative process privilege,3 Humphrey Decl. ¶ 18, under which agencies may withhold

“documents reflecting advisory opinions, recommendations and deliberations comprising part of

a process by which governmental decisions and policies are formulated,” Petrol. Info. Corp. v.

U.S. Dep’t of Interior,

(D.C. Cir. 1992) (citation modified). To invoke the

deliberative process privilege, an agency must show that the withheld information is

3 The agency also withheld under Exemption 5 material that the agency determined was exempt under the attorney-client privilege and the confidential commercial information privilege. Humphrey Decl. ¶ 18. Those withholdings are not at issue. See supra n.1.

12 “predecisional” and “deliberative.” Id. at 1434 (citation modified). A document is “predecisional”

if “it was generated before the adoption of an agency policy” and “deliberative” if “it reflects the

give-and-take of the consultative process.” Jud. Watch, Inc. v. FDA,

(D.C. Cir.

2006) (citation modified); see Coastal States Gas Corp. v. Dep’t of Energy,

(D.C. Cir. 1980) (Exemption 4 “covers recommendations, draft documents, proposals,

suggestions, and other subjective documents which reflect the personal opinions of the writer

rather than the policy of the agency.”). “[T]he agency invoking the deliberative process privilege

must show (1) what deliberative process is involved, and (2) the role played by the documents in

issue in the course of that process.” Jud. Watch, Inc. v. DOJ,

(D.C. Cir. 2021)

(citation modified). Two additional factors “can assist the court in determining whether this

privilege is available”: “the nature of the decisionmaking authority vested in the officer or person

issuing the disputed document and the relative positions in the agency’s chain of command

occupied by the document’s author and recipient.” Senate of Puerto Rico ex rel. Judiciary Comm.

v. DOJ,

(D.C. Cir. 1987) (citation modified).

The defendants have adequately justified NHTSA’s Exemption 5 withholdings under the

deliberative process privilege. The withheld agency communications and drafts predated the

specific and final decision whether to investigate Tesla, as they concerned “how to proceed with

NHTSA’s investigatory and enforcement activity concerning Tesla’s vehicles.” Humphrey Decl.

¶ 20. Contrast Inst. for Energy Rsch. v. FERC, No. 22-cv-3420,

, at *7 (D.D.C.

Feb. 12, 2024) (collecting cases in which “the agency [improperly] withheld portions of

substantive memoranda, emails, or other documents on the basis that they discussed broad policy

issues” (emphasis added)). The withholdings were also deliberative, as they

“reflected . . . consultative discussions,” Energy Pol’y Advocs. v. SEC,

, 64

13 (D.D.C. 2023), and were generated in the “process of formulating strategies and approaches

towards next steps or options in connection with [NHTSA’s investigatory and enforcement

activity],” Humphrey Decl. ¶ 19. Indeed, the documents served “to impart information to other

NHTSA staff that they would consider as they sought to pursue their investigatory and

enforcement activity with respect to the investigations and inquiries into certain aspects of Tesla’s

vehicles.”

. Finally, “the nature of the decisionmaking authority vested in the . . . person[s]

issuing the disputed document[s]” further indicates that the materials were predecisional and

deliberative, Jud. Watch,

(citation modified), as the authors “did not have final

decisionmaking authority concerning the issue,” and the materials “d[id] not reflect a final

decision,” Humphrey Decl. ¶ 20; see Tax’n with Representation Fund v. IRS,

, 679–

80 (D.C. Cir. 1981). Greenspan “provides no basis for this court to conclude that [NHTSA] has

mischaracterized the content of the material withheld under Exemption 5.” Cabezas v. FBI,

(D.C. Cir. 2024).

The defendants have also shown that NHTSA satisfied the foreseeable harm requirement

as to these documents. In addition to providing sufficient “context or insight into the specific

decision-making processes or deliberations at issue,” NHTSA explained how the agency “in

particular would be harmed by disclosure.” Ctr. for Investigative Rep. v. U.S. Custom & Border

Prot.,

, 107 (D.D.C. 2019) (citation modified). In particular, the Humphrey

Declaration attests that disclosure of the withheld documents would lead “agency personnel [to]

become hesitant to candidly discuss ideas or proposals for handling safety investigations.”

Humphrey Decl. ¶ 19; cf. Energy Pol’y Advocs., 699 F. Supp. 3d at 66 (agency established

foreseeable harm by explaining how disclosure would “lead staff to be less forthcoming in future

rulemaking discussions”).

14 Because the withheld documents were predecisional and deliberative, and could not be

disclosed without causing foreseeable harm, NHTSA properly invoked the deliberative process

privilege.

C. Segregability

Finally, the 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.”

(b). Pursuant to this “segregability” requirement, “non-exempt portions of a

document must be disclosed unless they are inextricably intertwined with exempt portions.” Mead

Data Cent. v. U.S. Dep’t of the Air Force,

(D.C. Cir. 1977). Although the D.C.

Circuit has not identified the exact level of detail required to justify non-segregability, “[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)

(citation modified) (citing Johnson v. Exec. Off. for U.S. Att’ys,

, 776 (D.C. Cir.

2002)). Agencies, moreover, “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 defendants have shown that NHTSA satisfied these requirements. The Hendrickson

and Humphrey declarations attest that the agency “performed a line-by-line review of the

documents withheld in full or in part and confirmed, as further described in NHTSA’s Vaughn

index, that further segregation or disclosure . . . would cause foreseeable competitive harm to Tesla

and . . . foreseeable harm to NHTSA itself.” Hendrickson Decl. ¶ 25; see Humphrey Decl. ¶ 23;

15 see also Machado Amadis v. U.S. Dep’t of State,

, 371–72 (D.C. Cir. 2020) (“line-

by-line review” of documents is sufficient); Emuwa v. DHS,

, 1017 (D.C. Cir. 2024)

(segregability analysis satisfied where agency declarant “confirmed that her office ‘reviewed’ the

redactions to ‘consider whether any information could be segregated and released without causing

a foreseeable harm to the agency’” and “explained the agency’s view that ‘no further segregation’

was possible without disclosing such information” (citation modified)). The defendants’

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

sufficient to establish that NHTSA complied with its segregability obligations.

Greenspan objects that, given that NHTSA segregated other documents, “it is unclear why

the withheld documents cannot be [segregated].” Pl.’s Reply & Opp’n at 11. But the fact that

NHTSA segregated some materials supports, rather than undermines, the conclusion that NHTSA

conducted a good faith segregability analysis. Cf. Cause of Action Inst. v. U.S. Dep’t of Veterans

Affs., No. 20-cv-997,

, at *17 (D.D.C. Apr. 20, 2021) (“An agency’s revision of

its previous segregability determination does not, as plaintiff suggests, raise an inference that the

agency has failed to comply with its obligation to release all reasonably segregable, non-exempt

information. To the contrary, supplemental releases of information evidence a good-faith effort

on the agency’s part to segregate nonexempt information where possible.” (citation modified)).

Greenspan has not offered any evidence sufficient to overcome the presumption that NHTSA

satisfied its segregability obligation. See Sussman,

.

D. Bad Faith

Finally, Greenspan argues that NHTSA acted in persistent “bad faith” by “retroactively

grant[ing] expired confidential treatment requests . . . often the day before a production deadline.”

Pl.’s Mot. for Summ. J. at 5. Summary judgment for an agency “may be inappropriate” in an

16 instance of agency bad faith “because such conduct could undermine the reliability of affidavits

the court must rely on.” Chase v. DOJ,

(D.D.C. 2018). “[T]o overcome

the presumption of good faith,” however, a plaintiff must “offer a concrete basis upon which the

court may conclude” that the agency acted in bad faith, Kay v. FCC,

(D.D.C.

1997), not “purely speculative claims,” SafeCard Servs.,

(citation modified); see

.

For the reasons discussed above, Greenspan at most accuses NHTSA of untimely

adjudications of requests for confidential treatment under agency regulations. But “courts

routinely find that delays in responding to FOIA requests are not, in and of themselves, indicative

of agency bad faith.” Chase,

(citation modified); see

(collecting cases).

Indeed, even for statutory timelines, “delay alone cannot be said to indicate an absence of good

faith.” Goland v. CIA,

(D.C. Cir. 1978). Because Greenspan’s only non-

speculative evidence of bad faith is of agency delay in alleged tension with regulatory timeframes,

he fails to overcome the good faith presumption to which NHTSA is entitled.4

4 Greenspan makes similar arguments in support of his claim that “[t]he sworn declarations of NHTSA Attorneys Allison Hendrickson and Shonda Humphrey are false.” Pl.’s Reply & Opp’n at 5. In particular, Greenspan contends that Hendrickson’s representation that NHTSA followed applicable legal standards is false in light of the timeframes set forth in

and 512.17 and emphasizes that neither declaration references

. See

at 5–7. But the Hendrickson declaration does not represent that NHTSA reviewed the requests within

.17’s 20-day timeframe. Rather, it states that NHTSA attorneys made “confidentiality determination[s] in accordance with legal standards,” Hendrickson Decl. ¶ 9, and “based on prevailing legal standards,”

. The Court has rejected Greenspan’s argument that NHTSA’s confidentiality determinations must be rendered within the regulatory timeframe in order for documents to be lawfully withheld under FOIA Exemption 4. And delays contrary to regulatory deadlines are not evidence of agency bad faith. See Chase,

. Greenspan therefore “fails to offer a concrete basis upon which the court may conclude” that Hendrickson or Humphrey has acted in bad faith. Kay,

.

17 CONCLUSION

For the foregoing reasons, the Court denies Greenspan’s Motion for Summary Judgment,

Dkt. 38, and grants the defendants’ Cross-Motion for Summary Judgment, Dkt. 43. A separate

order consistent with this decision accompanies this memorandum opinion.

________________________ DABNEY L. FRIEDRICH September 8, 2025 United States District Judge

18