Clean Air Council v. U.S. Dep’t of the Interior, No. 22-2741, 2024 WL 4111047 (E.D. Pa. Sept. 6, 2024) (Hodge, J.)

Clean Air Council v. U.S. Dep’t of the Interior, No. 22-2741, 2024 WL 4111047 (E.D. Pa. Sept. 6, 2024) (Hodge, J.)

Re:  Request for records concerning contractor’s work conducting engineering or feasibility studies on replacing heating systems in certain historic buildings

Disposition:  Denying defendants’ motion for summary judgment; denying submitters/intervenors’ motion for summary judgment; granting plaintiff’s motion for summary judgment

• Litigation Considerations, Mootness and Other Grounds for Dismissal:  The court relates that “[i]ntervenors[, the submitters,] maintain that this litigation is collaterally estopped because the confidentiality and non-public nature of the records at issue were already litigated before the PA Office of Open Records.”  The court notes that, after trying to request, and subsequently appeal, this information through the FOIA, plaintiff “attempted to obtain the information another way by submitting a request under the Pennsylvania Right to Know Law.”  The court finds that plaintiff is not collaterally estopped.  The court finds that “[t]he first prong [of collateral estoppel] – identity of issues – requires the Intervenors to show that the issue before the PA Office of Open Records is identical to the issue raised here.”  “The PA Office of Open Records did not make any findings about whether the disputed records are ‘customarily’ treated as private by [submitters], or whether the information was provided to the federal government under an assurance of privacy from [the government].”  “Moreover, whether Argus Leader even requires assurances of privacy.”  “The Office of Open Records likewise did not adjudicate whether the federal government correctly enforced FOIA, which ultimately is the question the Court must answer here.”  “Thus, the first collateral estoppel prong is not met.”
  
  “Notwithstanding the lack of identity, collateral estoppel does not preclude this litigation because [plaintiff] did not have a full and fair opportunity to litigate the validity of the federal government’s application of FOIA Exemption 4 to the disputed documents during the proceedings before the PA Office of Open Records.”  “[The submitters’] argument to the contrary is mooted by the basic fact that, at the time of the appeal, [defendants] had yet to respond to [plaintiff’s] FOIA request.”  “In other words, it is temporally impossible for the Council to have fully litigated the issue because the federal government had not yet applied Exemption 4 to withhold or redact the disputed records.”
   
• Exemption 4:  “[T]he Court concludes that there is insufficient evidence that [the submitters] customarily treat all of the information contained in the feasibility studies and supporting documents as confidential.”  “The Court also concludes that even if [the submitters] demonstrated that this information is customarily treated as confidential, there is insufficient evidence that they submitted the feasibilities studies under an assurance of privacy.”  The court first notes that “the parties do not dispute that the feasibility studies and supporting documents are commercial or financial and were obtained ‘from a person.’”  “The Court therefore will focus on the sole issue in dispute of whether they are ‘privileged or confidential.’”  “There is very little caselaw to guide [the] Court’s analysis of the Argus Leader prongs.”  “But, in keeping with at least one other court in this Circuit, in determining whether the information is ‘customarily’ or ‘actually’ treated as private, this Court will review the practices of the information owner by considering the following factors, as relevant:  (1) whether the information owner restricts access to the records to certain personnel; (2) whether any restrictive markings are applied to the documents; (3) whether the information is protected using secure technology systems or password protection; and (4) whether the information owner requires confidentiality agreements to access the information.”  “Although the affidavits submitted by [submitters and defendants] thoroughly describe the circumstances in which the feasibility studies and supporting documents were submitted to [the National Park Service (“NPS”)] and detail why release of at least some of the information contained in the studies would harm [the submitters], they do not sufficiently describe the steps [the submitters] customarily take to keep information of this sort confidential.”  “Furthermore, . . . [the submitters] did not enter into a confidentiality agreement with NPS prior to submitting the feasibility studies and supporting documents.”  “Of course, the existence or nonexistence of a confidentiality agreement between the submitter and recipient is just one of several factors . . . that the Court may consider in determining whether information was customarily and actually treated as private.”  “But the factor is undeniably weighty.”  “An agreement between the submitter and recipient – particularly a recipient with well-known public disclosure obligations like the federal government – to maintain confidences is a touchstone of the confidential exchange of information, and such agreements (or lack thereof) feature in courts’ Exemption 4 analysis post-Argus Leader.”  “The lack of a confidentiality agreement here becomes even more conspicuous when one considers the totality of the circumstances in which [the submitters] disclosed to NPS.”  “[T]he contract put [the submitters] on notice that the information contained in the feasibility studies would, if necessary, be used to prepare at least one public-facing document under [the National Environmental Protection Act (“NEPA”)].” “The information could also be part of the NPS’s public-facing compliance with the [the National Historic Preservation Act (“NHPA”)], which requires that each federal agency identify and assess the effects its actions may have on historic buildings.”  “That [the submitters] submitted the feasibility studies pursuant to a contract which provided that the information contained therein was potentially subject to mandatory public disclosure renders the absence of a confidentiality agreement all the more important.”  “Because of the lack of a confidentiality agreement, and the lack of evidence regarding [the submitters’] customary practices regarding feasibility studies, the Court is persuaded that the Defendants and Intervenors have failed to satisfy even the first prong of Argus Leader, at least as to information contained in the feasibility studies and supporting documents relevant to NPS’s theoretical compliance with NEPA and NHPA.”
  
  The court does note that “[a]ssurances of privacy may be express or implied.” The court finds that “[i]n Argus Leader, the U.S. Supreme Court recognized that relevant federal rules and regulations may, by their very existence, provide an express assurance of confidentiality.”  “The Defendants and Intervenors argue that the procurement-integrity rules provided in the Federal Acquisition Regulations (“FAR”) provide an express assurance of confidentiality.”  “NPS personnel engaged in government contracting related to the Independence National Historical Park project are subject to FAR 3.104–4, which forbids the disclosure of contractor bid or proposal information or source selection information, and requires agency employees to protect against unauthorized disclosure of such information.”  “FAR 2.101 defines ‘source selection information’ as ‘information that is prepared for use by an agency for the purpose of evaluating a bid or proposal to enter into an agency procurement contract, if that information has not been previously made available to the public or disclosed publicly.’”  “According to NPS, source selection information includes, among other things:  ‘(1) bid prices submitted in response to an agency invitation for bids, or lists of those bid prices before bid opening; (2) proposed costs or prices submitted in response to an agency solicitation, or lists of those proposed costs or prices; (3) source selection plans; (4) technical evaluation plans; (5) technical evaluations of proposals; and (6) cost or price evaluations of proposals.’” “Defendants and Intervenors argue that the feasibility studies and supporting documents are ‘source selection information’ subject to non-disclosure under FAR 3.104–4.1, therefore that regulation provides express assurances of confidentiality.”  “But, as the Council asserts, the feasibility studies and supporting documents are contracts, not procurement or source selection, records.”  “In short, FAR 3.104–4.1’s disclosure prohibition applies to information submitted during the process of winning a contract but does not apply to information submitted after a bid awardee is selected.”  “Here, NPS produced two signed contracts – one for the preliminary assessment and one for the feasibility studies.”  “Thus, the feasibility studies were not submitted to NPS as part of an official bid to supply energy to NPS, but were the object of contracts already awarded to [submitters].”  “Because the feasibility studies and supporting documents are not ‘source selection information,’ FAR 3.104–4(a)–(b) does not apply and therefore could not have provided express assurances of confidentiality.”  “Moreover, the affidavits of [submitters] personnel simply do not assert that the feasibility studies and supporting documents were provided to NPS under even the mistaken assumption that FAR prohibited disclosure of those documents.”  “In sum, Intervenors and Defendants have failed to provide sufficient evidence of any express assurances of privacy.”  “[Submitters] and NPS also assert, however, that there were implicit assurances of confidentiality from the context in which the feasibility studies were submitted to the government.”  “The affidavits submitted in this case” contain “no discussion of previous dealings between these parties, or whether NPS generally maintains the confidentiality of feasibility studies not subject to FAR 3.104-4.”  “Moreover, any ‘assurance of privacy’ implied by the context in which the feasibility studies were submitted is undermined by the NEPA/NHPA provision in the contract which states that the final feasibility study must contain sufficient information to enable NPS to meet its public-facing obligations under NEPA and NHPA.”  “Thus, Defendants and Intervenors have not put forth sufficient evidence of assurances of privacy, express or implied.”
  
  The court does finds that “a level of deliberate scrutiny is warranted to determine what information may be provided and ensure the purpose of FOIA is maintained – transparency coupled with necessary protections noted as exceptions.”  “[T]he Court will order NPS to revisit its segregation determination and produce any portions of the feasibility studies and supporting documents relevant to NPS’s theoretical compliance with NEPA or NHPA, e.g., ‘summaries of “energy conservation measures,” proposed energy conservations measures, assessment results, and employee roles.’”  “NPS will not be required to produce previously withheld information that is ‘inextricably intertwined’ with exempt portions of the studies, i.e., pricing and incentive information, but to the extent that NPS determines that it must withhold the documents in their entirety as inextricable, the Court will conduct an in camera review so as to be able to make ‘specific findings of segregability regarding the documents to be withheld.’”