Det. Watch Network v. ICE, No. 14-583, 2016 U.S. Dist. LEXIS 91929 (S.D.N.Y. July 14, 2016) (Schofield, J.)
Re: Request for records concerning "Detention Bed Mandate," including unit prices, bed-day rates and staffing plans
Disposition: Granting plaintiff's motion for partial summary judgment; denying defendants' cross-motion for partial summary judgment
- Exemption 4: The court holds that "[d]efendants have not met their burden of showing that bed-day rates, unit prices and staffing plans contained in ICE contracts with private companies (1) were 'obtained from a person' and (2) are confidential." The court first notes that "[t]he parties do not dispute that unit prices, bed-day rates, and staffing plans are commercial or financial in nature." Second, however, the court then finds that "[d]efendants have not met their burden of showing that the information at issue was 'obtained from a person.'" The court explains that "[t]he Government is incorrect in asserting that, because the unit pricing was submitted in the contractor's initial bids, it is 'obtained from a person.'" The court notes that "[p]laintiffs do not seek the initial bid documents, they seek documents that show the ultimate terms of the government contracts, including the contracts themselves." "The terms of those contracts are not 'obtained from' the contractors." "Also, as a factual matter the Government is incorrect that pricing and staffing terms in the contracts were 'obtained from' the private contractors and simply incorporated into the final contracts." "Declarations in the record confirm that these rates were negotiated and agreed on by the Government, as one would expect in an arms-length transaction." Third, the court finds that "[t]he requested information fails to qualify for Exemption 4 for the independent reason that it is not 'confidential' under the [competitive harm] test." The court explains that "[d]efendants have not shown that disclosure of bed-day rates, unit prices, or staffing plans would likely cause substantial competitive harm." "[T]he record shows a limited competitive market for detention services and does not show that prices, or more importantly, profit, could be derived with the specificity needed to meet Defendants' burden of showing competitive harm." "Even assuming that a competitor could reverse engineer a contractor's pricing structure with accuracy, Defendants have not shown that a competitor would be able to use that information to underbid a competitor."
- Exemption 7(E): The court holds that "[d]efendants cannot withhold information in staffing plans pursuant to Exemption 7(E)." The court finds that "the Government does not even attempt to show what investigations or prosecutions are occurring within the detention centers or how a staffing plan constitutes a technique or procedure used for law enforcement investigations or prosecutions."