Ctr. for Investigative Reporting v. Customs & Border Prot., No. 18-2901, 2019 WL 7372663 (D.D.C. Dec. 31, 2019) (Howell, C. J.)

Ctr. for Investigative Reporting v. Customs & Border Prot., No. 18-2901, 2019 WL 7372663 (D.D.C. Dec. 31, 2019) (Howell, C. J.)

Re:  Request for records concerning "'border fence/border wall contract proposals'"

Disposition:  Granting in part and denying in part defendants' motion for summary judgment; denying plaintiff's motion for summary judgment

• Exemption 5, Deliberative Process Privilege:  "In light of the defendants' failure to explain sufficiently the basis of their Exemption 5 withholdings and to show foreseeable harm, [the court finds that defendants'] motion for summary judgment must be denied with respect to Exemption 5."  The court holds that "defendants’ Exemption 5 withholdings are insufficiently explained in three critical respects:  the deliberative process to which the withheld records relate, the decisionmaking authority, and the chronology."  First, the court finds that "defendants have failed to identify the final decisions to which the withheld documents pertain."  "While the defendants are correct that the deliberative process privilege applies to documents that have not yet resulted in an agency decision, the withheld records here 'may in fact pertain to a litany of subsidiary decisions that defendants fail to acknowledge.'"  "The defendants' own declaration refers to the 'ongoing process' to which the documents relate as a three-fold 'contracting, procurement, and construction process.'"  Second, the court finds that "defendants have made essentially no effort to satisfy the 'key feature' by identifying 'the relation between the author and recipients of the document' . . . ."  "Indeed, in almost every instance the defendants have 'wholly omitted information about the positions and responsibilities of the authors and recipients . . . of the records.'"  Finally, regarding the chronology, the court finds that "[g]iven that the defendants have not identified the specific final agency decisions to which the documents withheld and redacted pursuant to Exemption 5 relate, they have, by extension, failed to establish that the documents predated those final decisions."  Overall, the court holds that "[t]he insufficiencies in the defendants' Vaughn Index and declarations are such that in camera review may prove necessary."  "Nevertheless, the defendants will be allowed another opportunity to supplement the record to avoid that step."
  
  Additionally, the court finds that "defendants have also failed to satisfy FOIA's 'foreseeable harm' requirement."  The court holds that "defendants' claims of foreseeable harm consist of 'general explanations' and 'boiler plate language,' . . . that do not satisfy the foreseeable-harm requirement."  "For instance, every Exemption 5 entry in the defendants' Vaughn Index recites the following three sentences, with only slight variation, as the justification for withholding the documents at issue:  '[T]he documents were withheld from disclosure because the information in the documents is predecisional and deliberative in that it consists of evaluations, opinions, observations, and other findings that CBP employees deemed critical as part of administering the border wall contracting, procurement, and construction process.'  'Releasing these documents could result in confusion regarding reasons and rationales that may not ultimately be the grounds for any actions CBP may take regarding the contracting, procurement, and construction process.'  'Moreover, release could chill open and frank discussions among CBP employees.'"  The court finds that "[i]f the defendants wish to establish foreseeable harm when they supplement the record, they will need to provide 'context or insight into the specific decision-making processes or deliberations at issue, and how they in particular would be harmed by disclosure.'"  "In some instances, the foreseeable-harm claims the defendants have already provided – once attached to a more detailed document description that includes, inter alia, the information the defendants must already provide to enable assessment of whether the deliberative process privilege was properly asserted in the first instance – may be enough."  "In other instances, though, it will not be 'axiomatic,' . . . that disclosure would cause the harms that the defendants claim . . . ."
   
• Exemption 4:  The court holds that "defendants' summary judgment motion must be denied with respect to Exemption 4."  The court holds that "[t]he import of [Food Marketing Institute v. Argus Leader Media's] holding that the ordinary meaning of 'confidential' applies in all Exemption 4 cases, then, is clear: [Critical Mass Energy Project v. Nuclear Regulatory Commission, 975 F.2d 871 (D.C. Cir. 1992)] and its progeny now supply the framework in this Circuit for determining whether voluntarily submitted and involuntarily submitted commercial or financial information are 'confidential' under Exemption 4." "Accordingly, Critical Mass and its progeny will be applied to resolve the defendants' confidentiality claims."  The court then finds that "under Critical Mass commercial or financial information is '"confidential" for the purpose of Exemption 4 if it is of a kind that would customarily not be released to the public by the person from whom it was obtained.'"  "This test 'is objective,' and 'the agency invoking Exemption 4 must meet the burden of proving the provider's custom.'"  "'In addition, in assessing customary disclosure, the court will consider how the particular party customarily treats the information, not how the industry as a whole treats the information.'"  "Here, the defendants have failed to meet this standard."  The court explains that "plaintiff is correct that [defendants'] declarations lack sufficient foundation to support the defendants' confidentiality claim."  "To establish submitter custom for purposes of Exemption 4, 'it is sufficient for an agency to proceed solely on its sworn affidavits.'"  "Yet, as is the case for all affidavits, such agency affidavits must 'be made on personal knowledge.'"  "Such personal knowledge can be demonstrated in various ways, including by relaying that the submitters themselves told the agency that the information is confidential, . . . by indicating that the agency reached an 'understanding' with the submitters 'that the information w[ould] be held in confidence by the U.S. and not publicly divulged,' . . . by pointing to confidential markings on the documents themselves or to the existence of a non-disclosure agreement, . . . or by providing descriptions of the documents that demonstrate their confidential nature . . . ."  "Conclusory statements by an agency official about what the agency official may believe about how a submitter customarily treats the information at issue are simply insufficient."  The court holds that "defendants provide no foundation for their confidentiality claims."  "They do not, for instance, indicate that the submitters told CBP that portions of the questions and concerns were confidential."  "Nor do the defendants point to an understanding with the submitters that questions and concerns sent to the general 'point of contact between the public and CBP for matters related to the border wall [Requests for Proposals] . . . would be kept confidential."
  
  Additionally, "defendants' declarations suffer from additional deficiencies with respect to the Exemption 4 withholdings."  "First, contravening the D.C. Circuit's command that an agency show 'how the particular party customarily treats the information' . . . the defendants base their confidentiality claim on 'how the industry as a whole treats the information' . . . ."  "Second, the confidentiality interest cited by the defendants might be too narrow to cover all the withheld information."  "The defendants contend only that unsuccessful bidders have an interest in keeping their information private."  "They never claim, however, that unsuccessful bidders submitted the redacted questions and concerns."  "Third, the defendants have not satisfied a potential additional requirement recently highlighted by the Supreme Court."  'In Food Marketing the Supreme Court indicated that 'two conditions . . . might be required for information communicated to [the government] to be considered confidential' under Exemption 4, . . . :  that the information is 'customarily and actually treated as private by its owner,' . . . and that the information was 'provided to the government under an assurance of privacy' . . . ."  "The Supreme Court stopped short, however, of deciding that Exemption 4 does in fact impose this second requirement, . . . perhaps because when information is involuntarily submitted to the government, the government often does not provide an assurance of privacy in return."  "By waiting until another day to determine whether and when this requirement applies, the Supreme Court left room to treat involuntarily submitted information and voluntarily submitted information differently from one another."  "Regardless of the Supreme Court's reason for not resolving whether the government's 'assurance of privacy' is required under Exemption 4, the defendants here acknowledge that in light of Food Marketing, they might need to show that they 'provide[d] some assurance' to the submitters that the withheld information would 'remain secret.'"  "Nevertheless, the defendants offer no evidence that such assurance was ever provided."
  
  Finally, regarding foreseeable harm, the court holds that "[a]t this stage, the defendants have not established that the withheld information falls within the scope of Exemption 4 in the first instance."  "Thus, they have, a fortiori, failed to satisfy the 'heightened' foreseeable-harm requirement as well."  However, the court explains that "[t]o meet this requirement, the defendants 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 . . . ."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  The court holds that, "[w]ith respect to the information that the plaintiff concedes was properly withheld – i.e., the information withheld pursuant to Exemptions 3, 6, 7(C), and 7(E) – the defendants have provided a sufficiently detailed attestation about the segregability of the withheld information."  "The defendants' declarant . . . has certified that she 'reviewed the documents line-by-line, to identify information exempt from disclosure or for which a discretionary waiver of exemption could apply,' and that she was 'satisfied that all reasonably segregable portions of the relevant records have been released to the Plaintiff in this matter.'"