Citizens for Resp. & Ethics in Wash. v. DOJ, No. 19-3626, 2024 WL 1406550 (D.D.C. Mar. 31, 2024) (Friedrich, J.)

Citizens for Resp. & Ethics in Wash. v. DOJ, No. 19-3626, 2024 WL 1406550 (D.D.C. Mar. 31, 2024) (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 defendant’s renewed motion for summary judgment; granting in part and denying in part plaintiff’s renewed cross-motion for summary judgment

• Exemption 4:  First, the court considers “whether . . . the pentobarbital contractors’ names are commercial.”  “The Court previously granted in part and denied in part the parties’ cross-motions for summary judgment.”  “On appeal, the D.C. Circuit reversed and remanded for further proceedings on a narrow set of records that the Department withheld under FOIA Exemption 4, which applies to confidential commercial information.”  “[Plaintiff] conceded – and the D.C. Circuit accepted – that the contractors’ names were confidential . . . .”  “With respect to the commerciality of the contractors’ names, the D.C. Circuit held that the Department had not ‘demonstrate[d] that the [contractors’] names are commercial in and of themselves,’ . . . apart from whether the disclosure of the names ‘could have commercial or financial repercussions,’ . . . or ‘might reveal the existence of a contract likely to attract public scrutiny,’ . . . as the Department had argued.”  “The D.C. Circuit has not yet addressed whether contractors’ names in and of themselves are ‘commercial’ within the meaning of Exemption 4.”  “Taking into account the plain language of Exemption 4 and precedent, the Court concludes that the contractors’ names are commercial information because their disclosure would reveal that the contractors have sold a product and/or service to the government, thereby ‘actually reveal[ing] basic commercial operations’ of the contractors.”  “That the contractors operate specifically in the pentobarbital market, which is ‘likely to attract public scrutiny,’ does not bear on the Court’s analysis.”  “It is undisputed that the contractors’ work for the government is a commercial operation.”  “The contractors engage in commercial manufacturing, compounding, and testing of pentobarbital for the government’s lethal-injection program, . . . for their own profit-seeking purposes . . . .”  “Insofar as the contractors’ contracts with the government concern this commercial operation, the records contain commercial information.”  “And few things are more material to a contract than the parties which it binds.”  “‘The identity of a party to a contract’ necessarily signifies whose goods and profits are at issue.”  “The disclosure of that identity would reveal that commerce.”  “It follows that in certain circumstances, the identity of a contractor is commercial information.”  “Granted, not every company name (or piece of similarly identifying information) subject to a FOIA request is commercial.”  “But at least some can be.”  “And here, the fact of the contractors’ names is intrinsically linked to the fact of their commercial activity in a particular market.”  “Where a contractor’s identity cannot be separated from its commercial activity, its identity is commercial information.”  “Put another way, the names of the pentobarbital contractors are necessarily commercial not because they are names but because they are names that appear in government contracts.”  “The Court need not engage in ‘speculation’ about how the contractors’ names ‘might be used for insight into the nature of a company’s business dealings’ with the government . . . ; the presence of the contractors’ names in the government contracts reveals that information itself.”  “Moreover, beyond revealing their commercial participation in a specific market, the disclosure of the contractors’ names would also partially reveal their customer lists – principally, by publicizing that the government is a customer.”  “Not only is the government’s role as a customer itself a valuable data point about the contractors’ position in the marketplace, it also can implicate other commercial information, such as whether a contractor has the manufacturing capacity to consistently and reliably meet the government’s demand for a product and that the government has authorized the contractor to operate this kind of business.”  “It is true that this Court has held in other contexts that identifying information, such as the names and addresses of companies and employees, is not commercial.”  “But, unlike here, the identifying information in those cases was also not confidential.”  “The instant action – in which the plaintiff has conceded the confidentiality of certain identifying information – is the rare case.”  “Because the confidentiality prong of Exemption 4 substantially limits the impact of this holding, it is not nearly as ‘expansive’ as [plaintiff] suggests.”
  
  The court then considers whether “key contract terms are confidential.”  The court relates that “[a]lthough it is unclear if the government must also assure the person imparting the information that the information will remain secret, . . .” “[plaintiff] has not disputed [this potential] requirement.”  The court then considers whether the “information [was] ‘customarily kept private, or at least closely held, by the person imparting it.’”  “To establish that the contract terms are private in this case, the Department must show that the terms themselves are identifying.”  “This unusual syllogism results from the Department’s litigation strategy.”  “The Department ‘structure[d] its exemption claim in two steps – that is, asserting first that the contractors keep identifying information private and second that the contract terms are identifying.’”  “This Court previously credited the Department’s representation that the contractors keep identifying contract terms private.”  “Thus, the only remaining question is whether the contract terms contain such ‘“detailed and specific information”’ that ‘[they] could in fact reveal the identities of the Bureau’s pentobarbital contractors.’”  “For reference, the contract terms at issue include ‘drug prices, quantities, expiration dates, invoices, container units, lot numbers, purchase order/reference numbers, substance descriptions, drug concentrations, and dates of purchase, service, and/or delivery.’”  “The Department has met this burden.”  “In various ways, it has shown how the contract terms at issue could be cross-referenced with public information to identify the contractors.”  “[Defendant’s] Declaration, which is entitled to a presumption of good faith, . . . explains in reasonably specific detail how an individual could match delivery dates or product lot numbers with public information (disclosed in cases or with information available on the Internet or in public databases, like the Food and Drug Administration registration system or the Federal Register) to identify pentobarbital contractors.”  “[Plaintiff] presents no contradictory evidence in the record, and no evidence of bad faith calls [defendant’s] Declaration into question.”  “[Plaintiff’s] point that the Department has shown that the contract terms are only possibly identifying, rather than in fact identifying, does not persuade.”  “The D.C. Circuit directed this Court to determine if the Department ‘demonstrate[d] that the contract terms could in fact reveal the identities’ of the contractors by ‘explain[ing]’ how they are identifying.”  “The D.C. Circuit was careful not to require the Department to demonstrate to an absolute certainty that the withheld information would reveal the identities of the contractors.”
  
  The court also hold that “[t]he Department also has shown that foreseeable harm would result from disclosure of the contractors’ names and contract terms.”  “‘To meet this requirement, the [Department] must explain how disclosing, in whole or in part, the specific information withheld under Exemption 4 would harm an interest protected by this exemption, such as by causing genuine harm to the submitter’s economic or business interests and thereby dissuading others from submitting similar information to the government.’”  “The government has explained that identified companies are ‘commonly subject to harassment, threats, and negative publicity leading to commercial decline.’”
   
• Litigation Considerations, “Reasonably Segregable” Showing:  The court holds that “[t]he Department’s declarations and Vaughn index, combined with the presumption of agency compliance, establish that the Department has complied with its segregability obligations.”  “In its initial summary-judgment motion, the Department represented that it conducted a ‘thorough search and careful review of records responsive to [plaintiff’s] FOIA request’ and that it had released all ‘segregable, non-exempt information.’”  “It stated repeatedly that ‘every effort was made to release all segregable information, including by conducting a page-by-page and line-by-line review.’”  “Further, in its renewed motion, the Department represents that it engaged in further ‘review’ of the records and released the segregated portions of an additional seven records.”  “The Vaughn index provides further insight into the Department’s record-by-record review, including details about the scope of particular redactions and releases.”
   
• Waiver and Discretionary Disclosure, Waiver:  “Finally, [plaintiff] argues that the Department waived FOIA Exemption 4 over material in some withheld documents by publicly sharing the withheld information elsewhere.”  “The parties’ briefing does not resolve the issue of whether the information sought by [plaintiff] is already in the public domain.”  “On one hand, [plaintiff] has not, as of this point, satisfied its ‘burden of production’ by pointing ‘to specific information in the public domain that appears to duplicate that being withheld.’”  “On the other hand, the Department concedes that it has waived exemption of at least some of the information contained in withheld records.”  “It states that some withheld records contain ‘the same quotes, contracts, invoices, or tests’ as the publicly released records.”  “Though the Department asserts that the captioned records are not identical to the released records, . . . this context is beside the point.”  “When identical information appears in a ‘reasonably segregable portion[ ]’ of a withheld record, the government must release the public portions of the document with redactions.”  “Against this muddy backdrop, the Court will order the Department to produce for in camera review the sixteen challenged records without redactions, along with the five publicly disclosed records for comparison.”