Citizens for Resp. & Ethics in Wash. v. DOJ, No. 19-3626, 2021 WL 4502039 (D.D.C. Sept. 30, 2021) (Friedrich, J.)
Citizens for Resp. & Ethics in Wash. v. DOJ, No. 19-3626, 2021 WL 4502039 (D.D.C. Sept. 30, 2021) (Friedrich, J.)
Re: Request for records from February 14, 2019 to the present related to procurement of pentobarbital, pentobarbital sodium, or Nembutal to be used in federal executions
Disposition: Granting in part and denying in part plaintiff's motion for summary judgment; granting in part and denying in part defendant's cross-motion for summary judgment
- Exemption 4: "[T]he Court concludes that the Department's withholdings under Exemption 4 were proper." First, "the Court concludes that all [of the] information that the Department has withheld under Exemption 4 is properly considered 'commercial.'" "Key to this case, 'the identities of companies participating' in a government program can also be commercial information depending on the context." "This court has explained 'that while a company may not always have a commercial interest in its name and identity,' the identifying information of corporate contractors 'are correctly considered commercial information' when the disclosure of their identity 'could have a commercial or financial impact on the companies involved.'" The court finds that "the pentobarbital suppliers face a serious risk to their commercial fortunes should the public become aware that they supply the drug to the government." "As the Department has explained, private companies that provide drugs for the death penalty 'are commonly subject to harassment, threats, and negative publicity leading to commercial decline when' their provision of those drugs 'is discovered.'" "The remainder of the information that the government has withheld under Exemption 4 is clearly commercial in nature, and [plaintiff] does not argue otherwise." "Contract terms, strategy, pricing, testing protocols, and the like . . . are well within the ambit of information this court has long recognized as 'commercial.'" Regarding the confidential nature of the information, the court finds that "[it] need not determine whether the second condition is necessary because it has clearly been met." "'[T]he Government has agreed to abide' by the companies' request 'that the Government maintain the information as confidential to the greatest extent possible under law.'" "As such, this Court need decide only whether the information withheld was 'customarily kept private' by the companies." "The Department has represented that the pentobarbital providers 'have typically kept' all of the withheld information 'private, have specifically designated the information as proprietary and/or confidential, and have expressly required or requested that the Government maintain the information as confidential to the greatest extent possible under the law.'" The court relates that "plaintiff does not argue that companies do not keep the information private, but rather asserts that the Department has not shown that all the withheld information could identify the companies." "But this misunderstands the test." "The question the court must answer under the confidentiality prong is not whether any given piece of information could identify the companies, but rather whether the companies keep that information private." "Companies need not justify why they keep information confidential; Exemption 4 only requires that they do keep it confidential." "[The] Court declines to read any new requirements into Exemption 4's text."
- Exemption 7, Threshold: The court finds that "[t]he Department has invoked Exemption 7(E) 'to withhold information describing the guidelines, techniques and procedures used to obtain Pentobarbital,' which it does as part of its mandate to 'implement[ ] federal death sentences.'" "The effectuation of the death penalty is unquestionably a punishment for violating the law."
- Exemption 7(E): The court holds that "[t]he plain meaning of the Exemption 7(E) covers the investigation and prosecution phases of the criminal process but not the punishment phase." Again, the court relates that "[t]he Department has invoked Exemption 7(E) 'to withhold information describing the guidelines, techniques and procedures used to obtain Pentobarbital,' which it does as part of its mandate to 'implement[ ] federal death sentences.'" The court finds that "[f]rom the Department's declaration, it is facially clear that the withheld records satisfy the first part of this exemption – that they be 'techniques and procedures.'" "These 'techniques and procedures,' however, have nothing to do with 'law enforcement investigations or prosecutions.'" Citing to Black's Law Dictionary, the court finds that "[a]n investigation is an inquiry to discern a truth about the world," and "the most natural meaning of prosecution is a kind of court proceeding." "So explained, it is clear that what the Bureau of Prisons does in this context is neither an investigation nor a prosecution." "Its procurement of Pentobarbital to effect a punishment is a distinct phase in the broader scheme of law enforcement." "And 'techniques and procedures' for punishment are not mentioned in the statute." "The Department fails to grapple with the text of the statute and focuses instead on whether disclosure creates a 'risk of circumvention of the law,' . . . and whether the procedures were described with sufficient specificity . . . ." "At most, that is a second-order concern."