Buzzfeed, Inc. v. DOJ, No. 18-1556, 2023 WL 5607423 (D.D.C. Aug. 30, 2023) (Chutkan, J.)

Buzzfeed, Inc. v. DOJ, No. 18-1556, 2023 WL 5607423 (D.D.C. Aug. 30, 2023) (Chutkan, J.)

Re:  Request for records concerning BOP’s acquisition and use of lethal injection drugs

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

• Litigation Considerations, Adequacy of Search:  “The court will not order a supplemental search and will deny [plaintiff’s] motion regarding the adequacy of BOP’s search.”  The court relates that “[plaintiff] argues that BOP’s search for responsive documents was inadequate because ‘the selection of keywords does not include the names of any other drugs considered by BOP or purchased for lethal injection,’ and therefore ‘the Court should order [the Government] to conduct a supplemental search using additional drug names as keywords.’”  The court finds that “[plaintiff] does not suggest what these additional keywords should be, however, nor does it cite any evidence that BOP considered the use of any ‘additional drugs’ as part of its lethal injection protocol.”  “Moreover, [plaintiff] does not argue that BOP’s search efforts were made in bad faith or that [defendant’s] declaration is not reasonably detailed.”  “Consequently, [plaintiff’s] argument that BOP’s search was inadequate is ‘purely speculative.’”

• Exemption 7, Threshold & Exemption 7(E):  The court holds that “the Government’s motion for summary judgment as to Exemption 7(E) will be denied, and [plaintiff’s] motion will be granted.”  “The Government ‘has applied Exemption 7(E) here to withhold information describing the guidelines, techniques and procedures used to obtain lethal injection substances . . . .’”  “As a threshold matter, this court agrees that BOP’s administration of the death penalty is a punishment for violating the law.”  “But the Government’s argument, that the meaning of ‘investigations or prosecutions’ in this Circuit is so capacious as to include the procurement and use of lethal injections, is unpersuasive.”  “The Government does not claim disclosure would affect an investigation or a prosecution.”  “At most, it argues that ‘there is a clear logical nexus between BOP’s efforts to obtain lethal injection drugs and the implementation of a legitimate, lawfully-imposed capital sentence.’”  “While that statement is correct, it reveals nothing about the asserted connection to law enforcement investigations or prosecutions.”  “Because the Government has made no new arguments on this issue, here too the court finds ‘that what [BOP] does in this context is neither an investigation nor a prosecution,’ . . . and the Government has not demonstrated that Exemption 7(E) covers the withheld documents.”

• Exemption 4:  The court holds that “both parties’ summary judgment motions as to Exemption 4 will be denied.”  The court relates that “[t]he Government applied Exemption 4 to ‘all information that could lead to the identity of individuals and/or companies supplying or potentially supplying lethal injection substances to the federal government.’”  “‘This information includes names (both personal and company names), account numbers, phone numbers, addresses, DEA & Tax ID numbers, dates of potential or actual sales of lethal injection substance(s), and substance descriptions, including item/stock/UPC numbers, price, quantity, and packaging details, all of which could be used to identify the suppliers and/or potential suppliers of lethal injection substances.’”  “It also applied the exemption to ‘expiration dates for substance(s) manufactured and/or held for sale, pricing strategies, unique business models, and purchasing requirements utilized by the commercial entity supplying the information.’”  The court finds that “the Government’s declarations and briefing lack the requisite specificity to show whether withheld contractor names ‘demonstrably pertain to the exchange of goods or services or the making of a profit,’ and whether contract terms are identifying.”  “The Government has merely asserted that the withheld information is confidential and that it is routinely withheld.”  “On the basis of the record before it, the court cannot determine whether Exemption 4 is rightfully applied . . . .”

• Exemption 5, Foreseeable Harm and Other Considerations:  “[T]he court will deny summary judgment for both parties regarding Exemption 5 and permit the Government to supplement the record regarding foreseeable harm.”  “[T]he court agrees with BuzzFeed that the Government has failed to demonstrate the requisite foreseeable harm.”  “Without reliance on a declaration or affidavit, the Government argues that because [one drug’s] selection in the lethal injection protocol is publicly known and has been used to carry out five executions, ‘the public’s interest in the disclosure of BOP’s prior efforts to procure lethal injection drugs is minimal.’”  “In addition, it argues that the value of disclosure does not outweigh the foreseeable harm to BOP’s future decision making, given that it will likely have to identify new suppliers or different drugs in the future.”  “To the extent that the Government argues that disclosure would discourage frank dialogue, it cannot rely on generalized statements.”  “The Government has failed to connect any particular document to the stated harm, and it does not ‘provid[e] context or insight into the specific decision-making processes or deliberations at issue, and how they in particular would be harmed by disclosure.’”