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100Reporters LLC v. DOJ, No. 14-1264, 2018 WL 2976007 (D.D.C. June 13, 2018) (Contreras, J.)


100Reporters LLC v. DOJ, No. 14-1264, 2018 WL 2976007 (D.D.C. June 13, 2018) (Contreras, J.)

Re:  Records related to the monitoring of Siemens for compliance with the Foreign Corrupt Practices Act (FCPA)

Disposition:  Granting and part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's cross motion for summary judgment

  • Exemption 4:  "[T]he Court holds that certain withholdings are overbroad because they cover material that is not commercial in nature."  Some of the documents consist "mostly of general descriptions of the Monitor's past and future activities with very few details about Siemens' business operations[,]" in addition to "analyses of industry best practices and guidance . . . [that] do not discuss Siemens' business operations."    
  • Exemption 5, Deliberative Process:  "[T]he Court holds that [the defendant] has sufficiently described the nature of the specific deliberative processes involved, the nature of the decision-making authority vested in the documents' authors and recipients, and the function and significance of the documents to the processes."  The court then examines each category of documents withheld under Exemption 5 to determine whether they were pre-decisional and deliberative.  The court holds that the defendant "may withhold drafts, feedback, presentations, and other preliminary materials related to the Work Plans, but the final Work Plans are not predecisional with respect to the Monitor's mandate because they represent a final agency sub-decision, and they are not deliberative with respect to [the] compliance with the plea agreement because they do not make recommendations or express opinions regarding that process." 

    The court upholds withholding of the Annual Reports and related materials, which "were generated before the agency's yearly sub-decisions regarding Siemens' compliance . . . and played a key role and facilitating those decisions."  The court holds that the defendant "has also sufficiently detailed the harm to its decision-making processes that could arise from disclosure of the Reports and related materials[,]" stating that release "could chill [the agency's] deliberations . . . and that public disclosure of such information is likely to chill companies' provision of that information." The court acknowledges that "[i]mpairment of the quality of agency decision making weighs in favor of withholding material under FOIA Exemption 4," but explains that courts "have also taken that consideration into account when evaluating deliberative process withholdings." 

    The court holds that the Report's exhibits, however, "are not deliberative because they contain purely factual material or are too attenuated from [the defendant's] decision making process to be considered deliberative."  Finally, the court holds that [the] training materials were not deliberative because although the defendant reviewed these materials during its decision-making process, "mere consideration of a document in relation to an identified deliberative process does not automatically pull that document within the privilege's scope."
  • Exemption 7(C):  The court finds that the defendant "failed to demonstrate why the monitorship team faces [danger in disclosure of their names and titles,]" particularly as "[p]rivate sector FCPA attorneys actively solicit monitorship business, and they advertise their participation in FCPA cases."  The court articulates that "[t]he public has an interest in the identities of government employees and advisers charged with overseeing a significant FCPA investigation, because the seniority and experience of those individuals is a strong indication of how seriously [the defendant] considered its responsibility to ensure that Siemens complied with its plea agreement."  Additionally, the court holds that the defendant "failed to make a 'particularized showing' of why [the] executives have a privacy interest in nondisclosure of their personal information, in light of the substantial volume of publicly available personal information related to their involvement in the monitorship." 

    The court agrees with the defendant in holding that "[the] non-executive employees and other third parties have a substantial privacy interest in non-disclosure of their personal information[]" because these individuals "face potential harassment and retaliation from their superiors for disclosing information about the company."  Additionally, "it is unclear exactly how the names and job titles of Siemens non-executives and third-party witnesses would shed light on DOJ's performance above and beyond other available information." 
  • Litigation Considerations, "Reasonably Segregable" Requirements:  The court holds that the defendant's "failure to properly segregate the in camera documents gives the Court reason to 'doubt [the defendant's] . . . compliance with its segregability obligations."  The court orders the defendant to "reexamine its withholdings and redactions in light of the Court's guidance[.]" 
Court Decision Topic(s)
District Court opinions
Exemption 4
Exemption 5
Exemption 5, Deliberative Process Privilege
Exemption 7(C)
Litigation Considerations, “Reasonably Segregable” Requirements
Updated December 1, 2021