Am. Small Bus. League v. DOD, No. 18-01979, 2019 WL 1100372 (N.D. Cal. Mar. 8, 2019) (Alsup, J.)

Am. Small Bus. League v. DOD, No. 18-01979, 2019 WL 1100372 (N.D. Cal. Mar. 8, 2019) (Alsup, J.)

Re:  Request for GE Aviation's 2014 Comprehensive Subcontracting Plan

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

• Litigation Considerations, Adequacy of Search:  The court "finds that the government's submitted declarations establish that its searches were reasonably calculated to uncover all relevant documents."  "Plaintiff's speculative claim of potentially missing documents fail to create a genuine dispute."  "And, to the extent there remains doubt regarding missing documents, the government has already volunteered to run relevant searches again."  On previous government action, the court finds that "the government readily acknowledged certain missing documents once notified by plaintiff and promptly took steps to address the errors, including voluntarily redoing its search for documents from custodians located within the United States Attorney's Office and offering ways of building in more time for plaintiff to respond if it felt prejudiced by the timing."
   

• Exemption 3:  The court denies defendants' motion.  The court relates that defendant made use of "Exemption 3 and the Procurement Integrity Act ("PIA")."  "The PIA prohibits disclosure of certain information related to the contractor bidding and source selection process."  The court finds that "[t]his order need not decide whether the PIA is an exempting statute because, even assuming that it is, the government has not sufficiently shown that the redacted information constitutes 'source selection information' within the PIA's definition."  "Both sides agree that the PIA's non-disclosure provision applies to information created 'before the award of a Federal agency procurement contract to which the information relates[.]'"  "Here, the details of [the] actual subcontracting performance and compliance relate to contracts already awarded . . . ."  "The government's broad assertion that it can withhold the redacted information effectively ad infinitum, however, eviscerates any distinction between pre- and post-award of a contract – a distinction the PIA clearly contemplates – thereby rendering the statutory language 'before the award' meaningless."  "Based on the foregoing – and in light of our court of appeals' exhortation that '[b]ecause FOIA is meant to promote disclosure, its exemptions are interpreted narrowly' – this order finds that the information related to . . . past performance in connection with already-awarded contracts fall outside the scope of the PIA."
   

• Exemption 4:  The court "finds that issues of material fact exist as to Exemption 4."  The court relates that "the government redacted details related to Lockheed and GE's small business subcontracting relationships, strategies, and goals[.]"  The court holds that "the parties have submitted competing declarations as to whether disclosure of the requested information would cause competitive harm."
   

• Exemption 5, "Inter-Agency or intra-Agency" Threshold Requirement:  The court "finds that communications between the government and [Sikorsky Aircraft Corporation, a subsidiary of Lockheed] during [a previous case] concerning a joint litigation strategy were 'intra-agency' for the purposes of Exemption 5."  The court relates that "the government seeks to withhold communications (i.e., documents transmitted) between the government and Sikorsky . . . under Exemption 5."  The court finds that "privileged documents shared between the government and Sikorsky pursuant to a common interest ordinarily would remain protected in civil proceedings."  "The same protection should be afforded in the FOIA context if the government and Sikorsky shared a joint defense agreement."
   

• Exemption 5, Attorney Work-Product & Attorney-Client Privileges:  The court holds that, "[w]ith the foregoing principles in mind, the government shall release all communications that were not legitimately made pursuant to a joint defense agreement (unless protected by another FOIA exemption)."  The court finds that "[w]hile this order finds that the common interest doctrine applies to Exemption 5, it does not blindly bless the government's mere invocation of a common interest."  The court finds that "'the record in this case presents the sort of features that underscore the need for watchfulness where the common interest doctrine is sought as a means to avoid FOIA's disclosure requirements.'"
   

• Exemption 6:  The court relates that "plaintiff has not challenged the government's Exemption 6 redactions [of email addresses and phone numbers of both contractor and DOD employees] in its briefing."  "Moreover, because plaintiff has not shown, and this order does not find, any public interest in the information at issue, this order finds that, on balance, the government has sufficiently shown that the redactions at issue were properly made pursuant to Exemption 6."
   

• Litigation Considerations, Vaughn Index/Declaration:  The court holds that "[t]he declarations . . . show how each witness has direct responsibility for small business and federal government contracting issues . . . ."  "They therefore have direct knowledge of both the issues in dispute and the competition within the relevant industry."