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Besson v. U.S. Dep't of Com., No. 18-02527, 2021 WL 1751053 (D.D.C. May 3, 2021) (Mehta, J.)


Besson v. U.S. Dep't of Com., No. 18-02527, 2021 WL 1751053 (D.D.C. May 3, 2021) (Mehta, J.)

Re:  Request for Cooperative Research and Development Agreement ("CRADA") between National Institute of Standards and Technology and private telecommunications company

Disposition:  Granting defendant's third motion for summary judgment; denying plaintiff's cross-motion for summary judgment and motion for in camera inspection

  • Exemption 4:  The court relates that "[i]n a prior Memorandum Opinion and Order, the court denied summary judgment with respect to the Statement of Work because the agency had represented that 'certain limited aspects of the Statement of Work may be available in public documents.'"  "The court 'afford[ed] the agency the opportunity to show that the entirety of the Statement of Work is subject to Exemption 4 protection, even though some of that Statement may be public.'"  "After the court's ruling, Defendant disclosed 'the portions of the Statement of Work that it determined were in the public domain,' but withheld the three sentences that remain at issue under Exemption 4."  The court finds that "according to [the submitter] . . . , the 'three sentences within the Statement of Work are not publicly-available and have been maintained as private by [the submitter]."  "It would reveal commercially-sensitive information about [the submitter's] business plans and activities if that information was released.'"  "Further, [the submitter] affirms, that information was provided 'to NIST with an implied assurance of confidentiality.'"  "Based on these representations, the three sentences redacted from the Statement of Work would appear to satisfy Exemption 4's definition of 'confidential.'"
  • Litigation Considerations, In Camera Inspection:  The court relates that "[i]n camera review in a FOIA case is 'neither necessary nor appropriate' unless the declarations fail to 'provide specific information sufficient to place the documents within the exemption category,' where that information is 'contradicted in the record,' or where there is evidence of 'agency bad faith.'"  "The court has carefully considered the information presented by Plaintiff . . . and finds that an in camera review is not warranted."
Court Decision Topic(s)
District Court opinions
Exemption 4
Litigation Considerations, In Camera Inspection
Updated June 3, 2021