Calderon v. Dep't of Agric., No. 14-0425, 2017 WL 680367 (D.D.C. Feb. 21, 2017) (Chutkan, J.)

Calderon v. Dep't of Agric., No. 14-0425, 2017 WL 680367 (D.D.C. Feb. 21, 2017) (Chutkan, J.)

Re: Request for transactional documents relating to export credit guarantee program

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, Vaughn Index/Declaration: The court holds that, "[g]iven the large number of documents at issue, and that the categories of information are frequently repeated in the various documents, [defendant's] decision to refrain from repetitive and redundant explanations in its Vaughn index in favor of explaining in its submitted declarations is satisfactory to the court." The court explains that "[w]hile the index itself does not include legal justifications for applying the exemptions, the accompanying agency and submitter affidavits are sufficiently descriptive for the court and for [plaintiff] to understand the agency's reasoning for each redaction." The court relates that "[defendant's] Vaughn index includes columns for Bates numbering, document description, document date, applicable FOIA exemption, and specific information redacted or withheld."
   
• Exemption 4: "[T]he court finds that Exemption 4 cannot apply to [certain] information[]" and that "there remains a genuine issue of material fact as to the application of Exemption 4 to [other information]." However, "[t]he court finds that Exemption 4 properly applies to the submitters' bank account information and tax ID information included on any of the responsive documents." The court first notes that "[t]he parties agree that in order to participate in the Program, the exporters were required to provide the responsive documents and information as part of their program guarantee application." Then, "[t]he court . . . concludes that disclosure of the redacted information is not likely to impair [defendant's] ability to collect this information in the future." "[T]he court is not convinced that whether private entities will participate in the . . . Program is relevant to the court's analysis under FOIA of whether [defendant] will likely be impaired in its ability to obtain information in the future from those entities that do participate." "When entities apply to [defendant] to take advantage of the Program's significant economic incentives, they will be obligated to provide the required transactional documents, and [defendant] has not asserted that the quality or substance of the information provided in these required documents might be diminished." Regarding the possibility of actual competition, "the court finds that evidence for market competition is established in the record." Regarding the competitive injury at issue, the court relates that "[defendant] argues that the general disclosure of the names and addresses of the transactional parties, including foreign banks, shippers, importers, consignees, buyers, etc., as well as the numerical information on pricing, units, weights, and amounts, would (1) provide potential competitors in the market . . . with unfair insight, and (2) enable those competitors to use that insight to target banks and other parties with better offers on price and other terms, resulting in lost future transactions for the submitters." However, the court finds that "[defendant] offers little explanation for how a new competitor, armed only with the disclosed names of importers, banks, and other pricing/quantity info, would overcome these 'high barriers to entry' built into structuring these program transactions." "Nor does [defendant] or the submitters state that they, as existing market competitors, would use the disclosed information in competition with each other." Additionally, the court finds that, "given that the redacted information in these documents pertains only to transactions in . . . three countries, and the alleged harm is that hypothetical competitors could offer specific transactional partners better deals, then [defendant] must provide support for its argument that there will actually be competition in these markets and that competitive harm is likely." "Instead, [defendant] has only offered vague and conclusory allegations about potential competition in markets other than those relevant here." Also, "[t]he court finds that [plaintiff] has proffered enough evidence to establish an issue of fact as to whether the names and addresses of shippers, the quantities, and the weights of commodities are in fact in the public domain through [a] database." Additionally, the court is "unconvinced that releasing ["the names and contact information of the submitters' employees and officials"] would likely cause substantial harm to the submitters' competitive position." "While the submitters may be concerned about competitors giving their employees more lucrative or attractive job offers, that is a routine aspect of competition, and is not the concern of [defendant], FOIA, or this court, and therefore does not support redaction under Exemption 4."
  
  However, regarding plaintiff's "general 'bad faith' argument[,] . . . pointing out that [defendant] has, in the past, not redacted the information it redacted here[,]" "the court is not convinced that it can glean anything from [defendant's] past actions or selective redaction in its document production that might impact its analysis regarding the redactions at issue in this case." The court also agrees with "[defendant's] redact[tion] [of] certain specific bank account numbers and tax ID numbers within the documents . . . [because] disclosure may place the submitters at risk for fraud or theft."
   

• Exemption 6: The court relates that "[defendant] invoked FOIA Exemption 6 to redact the names, signatures, business addresses, business telephone numbers, and business e-mail addresses of individuals in the responsive documents." The court first finds that "the information redacted by [defendant] is sufficiently similar to personnel or medical files to meet the threshold requirement for this exemption." Next, "the court finds that there is no significant privacy interest in individuals' names or business addresses, but in light of [defendant's] and the submitters' harassment concerns, there is a privacy interest in the employees' business e-mail addresses and business phone numbers." Then, "the court concludes there is virtually no public interest in disclosure of this information[]" because "[t]here is no logical connection between the e-mail addresses, signatures, and phone numbers of employees at entities involved in these transactions and what the government 'is up to.'" However, the court then finds that "[h]aving determined that there is no privacy interest in employees' names and business addresses[,]" "[defendant] is ordered to disclose individual names and business addresses in the responsive documents." However, "[i]n light of the privacy interest employees have in non-disclosure of their e-mail addresses or phone numbers, and the lack of a countervailing public interest, the court denies Plaintiff's motion and grants [defendant's] motion with respect to whether Exemption 6 permits the redaction of e-mail addresses, signatures and phone numbers."