Citizens for Responsibility & Ethics in Wash. v. Dep't of Commerce, No. 18-03022, 2020 WL 4732095 (D.D.C. Aug. 14, 2020) (Nichols, J.)

Citizens for Responsibility & Ethics in Wash. v. Dep't of Commerce, No. 18-03022, 2020 WL 4732095 (D.D.C. Aug. 14, 2020) (Nichols, J.)

Re:  Request for "'[a]ll communication between former White House advisor to the Commerce Department Eric Branstad and former Trump campaign official Rick Gates from January 20, 2017[,] to March 1, 2018,'" and "'[a]ll communication[s] sent or received by Branstad that mention[ ] the defense firm Circinus'"

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

• Exemption 5, Deliberative Process Privilege & Waiver:  The court holds that "Commerce has . . . waived any claim to deliberative process privilege over [a] May 1, 2017 email and [an] attached draft congressional testimony."  The court relates that "[plaintiff] does not dispute that these documents might normally fit within the deliberative process privilege . . . ."  "[Plaintiff] argues, Commerce waived the privilege after [it] forwarded the email to . . . a third party outside of the government . . . ."  The court further relates that, "[a]ccording to Commerce, 'there has been no disclosure at all, since there is no evidence that [the non-governmental third party] looked at anything in the email beyond [a] request at the top of the email that he print it out, along with the attachment.'"  "The Court disagrees."  "When analyzing waiver, the focus is not whether the recipient reviewed the disclosed information; instead, it is whether a disclosure occurred in the first place."  "As a result, whether [the third party] reviewed or looked at the email and the draft testimony is irrelevant."  Additionally, the court notes that "Commerce has ushered no facts exhibiting that it took any action whatsoever to remedy [the] disclosure to [the non-governmental third party] (who again was not a government employee at the time) – including investigating the disclosure, contacting the individuals involved, or otherwise attempting to ensure that the privileged materials were not further disclosed."  Additionally, the court notes that "Commerce argues that the disclosure . . . was unauthorized . . . ."  The court finds that "[w]hile that may be true, Commerce has presented no evidence that it attempted to remedy the unauthorized disclosure once it was discovered."
   
• Exemption 4:  The court relates that "the Supreme Court identified 'two conditions that might be required for information communicated to another to be considered confidential' under Exemption 4, . . . the information is '[1] customarily and actually treated as private by its owner and [2] provided to the government under an assurance of privacy.'"  "Here, [plaintiff] concedes that the first condition is met and challenges only whether Commerce meets the second."  "In the Court's view, Commerce has established that its withholding was proper."  "Assuming that Exemption 4 can be satisfied here only if Commerce gave Circinus some assurance of confidential treatment, . . . that assurance of confidentiality could have been either express or implied."  "In U.S. Department of Justice v. Landano, the Supreme Court interpreted the term 'confidentiality' as used in Exemption 7(D), which in certain circumstances protects the identity of confidential sources used in law enforcement, and held that 'the question is not whether the requested document is of the type that the agency usually treats as confidential, but whether the particular source spoke with an understanding that the communication would remain confidential.'"  "As a result, the Supreme Court noted, '[t]he precise question before us, then, is how the Government can meet its burden of showing that a source provided information on an implied assurance of confidentiality.'"  "Implied assurances of confidentiality can therefore satisfy Exemption 7(D), and the same idea should apply here."  "Recent guidance issued by the Department of Justice's Office of Information Policy came to the same conclusion, explaining that, 'in the context of Exemption 4, agencies can look to the context in which the information was provided to the government to determine if there was an implied assurance of confidentiality.'"  The court finds that "[t]he context in which [the submitter] provided Commerce information – to grow its business in foreign markets – supports the notion that it did so under an implied assurance of confidentiality."  "Without such an assurance, companies like [the submitter] would not seek Commerce's assistance because the information they provided could be revealed by simply submitting a FOIA request."  "The information thus could easily fall into the hands of competitors or other entities that sought it."  Plaintiff argues that "Commerce has failed to justify the withholding based on the specific factors laid out by the Office of Information Policy guidance[,] [specifically] arguing that Commerce did not provide details about its historical 'treatment of similar information' and 'its broader treatment of information related to the program or initiative to which the information relates' . . . ."  "But the guidance issued by the Office of Information Policy on Exemption 4 is just that – guidance."  Finally, the court holds that "[plaintiff] is correct, however, that Commerce must provide any information to CREW that it withheld under Exemption 4 yet has elsewhere disclosed to [plaintiff] or is otherwise available in the public domain."