Ctr. for Pub. Integrity v. DOE, No. 15-01314, 2018 WL 401225 (D.D.C. Jan. 12, 2018) (Mehta, J.)

Ctr. for Pub. Integrity v. DOE, No. 15-01314, 2018 WL 401225 (D.D.C. Jan. 12, 2018) (Mehta, J.)

Re: Request for records concerning investigation into lobbying activities of DOE contractor

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

• Exemption 4:  "[T]he court agrees with Defendant that the two e-mail chains are properly characterized as confidential commercial information within the meaning of Exemption 4."  "Defendant cannot, however, rely on Exemption 4 to redact the . . . portions of the emails that OIG officially acknowledged through release into the public domain."  First, the court relates that "Plaintiff does not question whether the material withheld pursuant to Exemption 4 was 'obtained from a person.'"  "Similarly, Plaintiff agrees with Defendant that the e-mails withheld contain 'commercial' information."  Turning to the privileged or confidential consideration, the court next finds that "Defendant produced [a related] OIG Report to Plaintiff without redacting references to the e-mail communications, yet [the contractor] did not complain to Defendant about the release."  "[The contractor's] silence in the face of public revelation of its privileged communications is fatal to Defendant's invocation of Exemption 4."  Additionally, "[the contractor's] mere act of placing a confidentiality designation on a document cannot possibly inoculate it from waiver[]" and "[the contractor] and OIG did not have 'substantially identical' interests at the time [the contractor] disclosed the e-mails."  "In short, applying the strict rule on waiver here, Defendant cannot rely on the attorney-client privilege to withhold the e-mails under Exemption 4."  However, the court does hold that the emails were confidential.  The court finds that "OIG could not have compelled [the contractor] to produce those e-mail chains; that [the contractor] did so was a voluntary act."  The court also finds that "'[the contractor] routinely protects internal communications of this nature and would not release such material to the public.'"  "Accordingly, the court finds that Defendant properly redacted the e-mails in question[.]"  "This holding, however, is subject to one exception: Defendant may not redact portions of the e-mails that it already disclosed in the OIG Report and the Memorandum to the Secretary."  The court finds that "[h]ere, the official acknowledgement standard is easily met."
   
• Exemption 7(C):  First, the court holds that "Defendant properly invoked Exemption 7(C) to withhold the names of [non-government corporate] employees from disclosure, subject to the court's official acknowledgment holding[.]"  The court finds that "there can be little doubt that each . . . employee – even if treated on par with a government employee – possesses a substantial privacy interest in not having his or her name associated with a law enforcement investigation and in the investigative files' contents."  Regarding the public interest, the court finds that "Plaintiff here does not explain how releasing the names of [the] employees will get Plaintiff any closer to learning whether OIG pulled its punches or, for that matter, anything else about the investigation."  "Arguably, the release of names might enable Plaintiff to determine if any specific individual escaped public scrutiny for an improper purpose."  "But the mere prospect of doing so is not enough to overcome the employees' substantial privacy interests."  "In the end, whatever public interest there is in learning the identities of the persons involved in [contractor's] lobbying efforts, that interest is not outweighed by those persons’ substantial privacy interests."  Second, the court finds that the names of "'all DOE employees in pay grades GS–15 and below'" were appropriately withheld.  The court explains that "there can be little doubt that these individuals have a 'substantial' privacy interest in avoiding disclosure of their names."  "The only public interest Plaintiff claims is that 'the names of the other [non-investigative] employees are important in understanding the significance of the information they provided.'"  "It is not at all clear what Plaintiff means by this, but in any event it is not an interest that reveals 'what [the] government is up to.'"
   
• Waiver:  The court holds that "Defendant must produce to Plaintiffs [certain] OIG records without redacting [certain] names."  The court explains that "official disclosure by one component binds another component of the same agency[]" and "both OIG and NNSA fall under the auspices of DOE."  "Thus, NNSA's disclosures trigger an official acknowledgment waiver on behalf of other DOE subcomponents, including OIG."  However, the court finds that "[f]or there to be an official acknowledgment, the information disclosed must precisely 'match' the information requested."  "Thus, although NNSA officially acknowledged [certain] name[s] . . ., that acknowledgment does not extend to all other appearances of [those] name[s] in OIG records."  "So, if an unredacted document released by NNSA is directly discussed or quoted in a released OIG record, such as the OIG Report, then Defendant can no longer rely on Exemption 7(C) to protect the identity of persons who appear in both records."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "The court has reviewed [defendant's] Supplemental . . . Declaration[s] . . . and is satisfied that Defendant has carried out its duty to disclose reasonably segregable material.