Ctr. for Pub. Integrity v. Dep't of Energy, No. 15-01214, 2017 WL 176268 (D.D.C. Jan. 17, 2017) (Mehta, J.)

Ctr. for Pub. Integrity v. Dep't of Energy, No. 15-01214, 2017 WL 176268 (D.D.C. Jan. 17, 2017) (Mehta, J.)

Re: Request for records concerning investigation of corporation and its lobbying activities

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

• Exemption 4: "The Court finds Defendant properly withheld . . . certain information under Exemption[] 4[,] but "the court also finds that Defendant has not properly justified withholding other information under Exemption[] 4[.]" The court first notes that "[p]laintiff does not question whether the material withheld pursuant to Exemption 4 was 'obtained from a person' or was 'commercial or financial.'" The court then finds that, regarding defendant's withholding of "two categories of material – (1) '[c]ontract provisions that reveal vendor hourly rates, specific negotiated considerations and/or terms and conditions reflecting agreement between Sandia and its vendors,' and (2) 'slides, presentations, and other documentary information . . . [that] reveals confidential Sandia business contract strategy[,]'" "[t]he very real specter of government compulsion renders [the corporation's] production here involuntary for purposes of Exemption 4." The court also finds that "there is no dispute of fact that [the corporation] 'faces actual competition in the bidding process,' thus satisfying the actual competition requirement." Additionally, "[t]he court finds that [defendant's] statements are sufficiently detailed to establish a likelihood of substantial competitive harm caused by disclosure of [these] materials." Here, the court also responds to plaintiff's argument that, "because [the corporation] engaged in a 'business relationship with the U.S. government [that] was illegal,' 'one must assume that [the corporation's] competitors . . . will not adopt these illegal methods in the future[,]'" and finds that "[d]efendant invokes Exemption 4 to withhold the details of a business strategy that would have been legal but for [the corporation's] improper use of government funds to develop and execute that strategy." "Thus, the information that Defendant designated as confidential is not itself unlawful or the product of inherently illegal activity." "In other words, the court can separate [the corporation's] bad acts from the information it seeks to protect."
  
  However, the court also finds that "[d]efendant has failed to establish that Exemption 4 applies to [one] withheld email communication[]" "'between [corporation] managers and [the corporation's] legal counsel.'" The court finds that "[d]efendant's declarations fall well short of establishing the attorney-client privilege." "They are entirely conclusory and lack the factual detail needed to decide whether the privilege is applicable."
   

• Exemption 7(C): "[T]he court finds that [defendant's] Declaration, in its current form, does not sufficiently support the withholding of employees' names under Exemption 7(C)." While the court recognizes that "'third parties who may be mentioned in investigatory files' have 'an obvious privacy interest cognizable under Exemption 7(C) in keeping secret the fact that they were subjects of a law enforcement investigation[,]'" the court finds that "[defendant's] declaration does not then weigh the public interest in light of the facts pertinent to the individual employees who engaged in the illegal lobbying efforts." "Instead, it simply groups the employees into three broad categories that tell the court little about the conduct of the individual employees." "Such an approach is improper." The court instructs that "[d]efendant will be given an opportunity to supplement its declaration to show, through an individualized assessment of each employee, the private interest in non-disclosure outweighs the public interest in disclosure." "This is not to say that Defendant may not group employees together when appropriate." "Such a grouping, however, must be accompanied by an attestation that the declarant has considered the individual characteristics of each employee within the group and that the facts common to those employees, such as their level of employment and relative roles in [the corporation's] illegal lobbying activities, tilt the balancing in favor of non-disclosure."
   

• Exemption 6: The court holds that "[d]efendant has justified its assertion of Exemption 6 to the court's satisfaction." "First, [the court finds that] there is little or no public interest in disclosing the names of government officials that Sandia had targeted for lobbying – making their names public would not inform citizens what their government is up to." "After all, the subject of the OIG investigation was the conduct of [the corporation's] personnel, not those that they targeted." "Nor is there any suggestion that the targets engaged in any wrongdoing." "For the same reason, the court also finds that Defendant has sufficiently justified invoking Exemption 6 to withhold the names of 'low-level contractor employees who were not directly involved in the underlying facts and issues that were the subject of the investigation.'"
   

• Exemptions 3, 7(E) & 7(F): "The court finds that [defendant's] Declaration provides a logical and plausible basis for Defendant to withhold sensitive national security information pursuant to Exemptions 3, 7(E), and 7(F)." "As the Court of Appeals has made clear, the judiciary generally defers to executive branch decisions to withhold information on national security grounds." "Plaintiff has given the court no reason to deviate from that practice here." The court relates that defendant's declaration states that "'[t]he portions of [the documents] withheld pursuant to Exemption 3' may not be disclosed under 42 U.S.C. § 2168(a)(1)(B)(C) because they 'pertain to security measures for the physical protection of . . . [the corporation's] Laboratory[,]'" "'[t]he information withheld pursuant to Exemption 7(E) relates to techniques about detecting missile attacks . . . [and] also pertains to matters of national security that would give potential for harm to the nation by terrorists[]'" and "'[t]he information withheld pursuant to 7(F) is related to vulnerabilities and areas that need improvement regarding certain sensitive governmental programs that relate to protection of nuclear materials, detection and sensing foreign nuclear weapon proliferation and nuclear defense risks.'"
   

• Litigation Considerations, "Reasonably Segregable" Requirement: The court holds that, "[h]ere, [defendant's] Declaration merely states that '[a]fter extensive review of the documents at issue . . . there is no further non-exempt information that can be reasonably segregated and released without revealing exempt information.'" "Notwithstanding the deference owed to an agency's determination of segregability, the court finds [defendant's] Declaration inadequate." "It merely states, without 'detailed justification' and in 'conclusory' fashion, that no responsive documents are segregable." "That may be so, but the court needs more information before it is satisfied that the agency has carried out its duty to disclose the reasonably segregable portion of the responsive documents."