Skip to main content

Env’t & Pol’y Inst. v. TVA, No. 22-220, 2024 WL 4535983 (E.D. Tenn. Oct. 21, 2024) (Varlan, J.)

Date

Env’t & Pol’y Inst. v. TVA, No. 22-220, 2024 WL 4535983 (E.D. Tenn. Oct. 21, 2024) (Varlan, J.)

Re:  Request for records concerning defendant’s involvement with certain outside groups, as well as for records concerning defendant’s insurance policies

Disposition:  Granting defendant’s motion for summary judgment; denying plaintiff’s motion for summary judgment

  • Litigation Considerations, Vaughn Index/Declaration:  The court relates that “[it] initially found that defendant’s Vaughn Index and supplementary declarations were inadequate with respect to certain withheld information in response to FOIA Request 109 such that the Court could not properly evaluate whether defendant’s claimed exemptions were proper . . . .”  “Accordingly, the Court ordered defendant to file a supplemental Vaughn Index or otherwise supplement its declarations.”  “Defendant’s revised filings now provide sufficient detail to permit the Court to evaluate whether the claimed FOIA exemptions were proper.”  “The revised Vaughn Index provides more specific descriptions of the nature of legal advice or services conveyed in certain documents, more detailed justifications for claimed exemptions, and more thorough explanations of how confidentiality and privacy concerns apply to certain documents.”
     
  • Exemption 4:  Regarding one request, “the Court finds that defendant has satisfied its burden to demonstrate the applicability of Exemption 4 to each category of withholdings.”  First, the court finds that “Defendant has clearly established that each of the disputed categories of documents are ‘commercial’ within the meaning of Exemption 4.”  “Broadly, [an outside law firm’s] work product may ‘constitute commercial information . . . because this work product is how the law firm generates revenue in the commercial sense’ . . . .”  “Taking each of defendant’s three major categories in turn, the disclosure of [one outside entity’s] updates and operational communications, ‘would reveal the business practice and strategy of [that entity] and [the outside law firm]’ . . . .” “Similarly, the Court agrees that disclosure of [another outside entity’s] communications (both pre- and post-incorporation) could ‘reveal the business practice and strategy of [that entity]’ . . . .”  “[T]hese documents fall within the well-recognized ‘commercial interest’ sense of Exemption 4.”  “As for [certain] Regulatory Information and Compliance matter, defendant demonstrates that McGuireWoods identifies both information in which it has a ‘commercial interest’ and more traditional ‘commercial’ information . . . .”  “[The outside law firm] withheld its ‘tailored rate for a particular legal service’ . . . and its ‘bank account and commercial transaction information’ . . . , which fall squarely within the meaning of ‘commercial.’”

    The court then finds that “[e]ach document for which defendant invokes Exemption 4 originates from a ‘person’ within its statutory meaning.”  “Plaintiff's sole cited example of noncompliance, an email between [an outside entity’s employee] and [a TVA employee], still originates ‘from a person.’” “The plain meaning of Exemption 4 and its accompanying definition of ‘person’ excludes purely internal, intra-agency communications, but it does not exclude correspondence between an agency and a ‘person.’”

    Next, the court finds that “Defendant has established that its withheld documents are confidential for purposes of Exemption 4.” “Many withheld documents contain email headings stating that their contents were ‘PRIVILEGED AND CONFIDENTIAL’ . . . .”  “Beyond mere labeling, however, [the outside law firm] states that this material ‘is customarily and actually kept private . . . and was provided to TVA and other members of the CLG with an expectation of privacy’ . . . .”  “Some [outside entity] materials were also subject to a confidentiality provision, which prohibited members from ‘releasing information within the scope of the [that outside entity’s] functions and activities’ . . . .” “While the Court is mindful that defendant separately asserts attorney-client privilege for Exemption 5 withholdings . . . , its arguments regarding a lawyer’s ethical duty to maintain client confidentiality are relevant here, as well, because they further substantiate [the outside law firm’s] claim of confidentiality.”  “Under the streamlined Argus Leader rule, defendant’s burden is satisfied by definitively showing only the first requirement that information is ‘customarily and actually treated as private by its owner.’”

    Finally, regarding foreseeable harm, the court finds that “Defendant relies on repetitive language to demonstrate the foreseeable harm it anticipates from disclosure.”  “In almost every Vaughn entry, it recites that disclosure ‘would give competitors . . . access to confidential commercial information’ . . . .”  “While the government must provide ‘more than “nearly identical boilerplate statements,[”]’ . . . there are necessarily limitations on its ability to predict potential harms arising from disclosure of each particular document.”  “[T]he Vaughn Index provides sufficiently detailed descriptions of foreseeable harm.”  “Similarly rebutting plaintiff's arguments . . . , defendant’s revised Vaughn Index added more detail on precisely this issue.”

    Regarding a second request, the court finds that “defendant has justified its reliance on Exemption 4 with respect to its redactions in response to FOIA Request [208].”  At issue are “redactions from [an] insurance policy.”  The court finds that “Defendant has shown that the . . . policy is ‘commercial.’”  “Certain redactions, including for example the policy premiums, constitute the straightforward ‘income-producing aspects of a business.’”  “Other redactions fall within the ‘commercial interest’ sense of the term . . . .”  “[The insurance company’s] commercial interest in its policies is analogous to [the above-described law firm’s] interest in its legal advice; that is, these work products both constitute the primary vehicle through which the respective firms earn profit and compete in the marketplace.”  The court then finds that “[t]he Court readily finds that [the insurance company] is a ‘person’ for purposes of Exemption 4 because it is ‘a corporation . . . other than an agency.’”  Additionally, the court finds that “[the insurance company] ‘customarily and actually’ treats its insurance policies confidentially.” “[The company] pointed to several specific practices that easily satisfy Argus Leader’s first prong of analysis . . . .”  “Even without evidence of those practices, defendant has made clear that its dealings with [the insurance company] were ‘under an assurance of privacy,’ satisfying the second prong, as well.”  Finally, the court finds that “Defendant has shown that disclosure of the insurance policy beyond the present redactions risks reasonably foreseeable harm.”  “Specifically, the agency ‘reasonably foresees that disclosure would harm’ [the insurance company’s] competitive standing in its highly specialized field of insurance underwriting.”
     
  • Exemption 6:  The court relates that “Defendant invokes Exemption 6 to withhold names, direct telephone numbers, mobile phone numbers, and email addresses of individuals as an unwarranted invasion of personal privacy.”  “Defendant has established that the names, direct telephone numbers, mobile phone numbers, and email addresses of individuals it withheld under Exemption 6 constitute ‘similar files’ within its statutory meaning . . . .” “Following guidance to focus on ‘“the nature of the information” at issue,’ the Court finds that such personal contact information is ‘similar’ to the sorts of personnel and medical records that have been frequently exempted from FOIA disclosure requests.” “Defendant has also narrowly invoked Exemption 6 to redact personal contact information from documents; so, it has not taken interpretive liberty with the term ‘similar,’ to withhold more information than necessary.”  “Considering the two factors relevant to this balancing inquiry, the privacy interest at stake in personal contact information is self-evident . . . .”  “As other courts have concluded, the disclosure of “bits of personal information, such as names and addresses . . . would ‘create a palpable threat to privacy,”’ because it would subject individuals to unsolicited contact.”  “As for the public interest in disclosure, plaintiff fails to demonstrate how its general mission of ‘researching TVA’s role in special interest groups’ is furthered by the disclosure of non-agency members’ contact information.”  “In short, plaintiff does not demonstrate a compelling public interest sufficiently strong to outweigh the obvious privacy concerns at issue in defendant’s Exemption 6 withholdings.”  Finally, “[t]he Court finds that defendant has demonstrated foreseeable harm that would arise from the disclosure of non-agency individuals’ contact information.”  “Far from a ‘generic and nebulous articulation[ ] of harm,’ . . . defendant’s concerns about harassment and unwanted contact are specific to the individuals’ whose information is sought by plaintiff.”  “Perhaps evidenced by the absence of specific objections by plaintiff, the potential for harm arising from such a disclosure falls squarely within the limitation recognized by 5 U.S.C. § 552(a)(8)(A)(i)(I).”
     
  • Exemption 5, Attorney-Client Privilege:  The court notes that “defendant only invokes Exemption 5 concurrently with Exemption 4 or Exemption 6 . . . .”  “Because the Court finds that defendant’s reliance on Exemption 4 and 6 in FOIA Request 109 were compliant . . . , it is now unnecessary to rule on the propriety of defendant’s reliance on Exemption 5 within FOIA Request 109.”  “The only potential need for an independent Exemption 5 analysis pertains to segregability (e.g., where a portion of a document is withheld on the basis of Exemption 4 but another, separate portion is withheld on the basis of Exemption 5).”  “However, that situation does not arise here because defendant’s Exemption 5 withholdings all invoke attorney-client privilege, raising similar and coextensive arguments as to the confidentiality of each document.”  “Therefore, having concluded that defendant’s Exemption 4 and 6 justifications complied with FOIA, the Court need not reach the issue of Exemption 5’s applicability in FOIA Request 109.”

    Similarly, regarding request 208, “[a]s with defendant's simultaneous exemptions in FOIA Request 109, it claims FOIA Exemptions 4 and 5 concurrently (and specifically, the confidential commercial information privilege) to justify its redactions; however, the Court need not address defendant’s compliance with Exemption 5 because Exemption 4 provides an independent and sufficient basis to justify its redactions.”
     
  • Litigation Considerations, Evidentiary Showing, “Reasonably Segregable” Showing:  First, “[t]he Court finds that the Vaughn Index provides sufficiently specific justifications for segregability for Exemption 4.”  “In connection to its Exemption 4 withholdings, defendant strikes this balance by noting where ‘no non-exempt information . . . is reasonably segregable from the exempt information,’ followed by a factual description of each document . . . .”  “Because its Exemption 4 documents contain confidential commercial information, defendant cannot reasonably disclose e.g., headings, email subject lines, or other organizational material because such material is inextricably linked to the core substance over which the exemption was claimed.”  “Defendant did not withhold any documents in full on the basis of Exemption 6; instead, it relied on this exemption to narrowly redact personal contact information of various individuals described in the Vaughn Index . . . .”  “Given that defendant redacted this material and produced all unredacted information, the Court readily concludes that it has met its segregability requirement with respect to Exemption 6, also.”

    Regarding request 208, the court finds that “[the outside insurance company] determined which portions of the insurance documents could result in foreseeable harm . . . .”  “The Court finds that defendant has disclosed all reasonably segregable portions of the requested material in FOIA Request 208.”
Court Decision Topic(s)
District Court opinions
Exemption 4
Exemption 5
Exemption 5, Attorney-Client Privilege
Exemption 6
Litigation Considerations, Vaughn Index/Declarations
Litigation Considerations, “Reasonably Segregable” Requirements
Updated December 4, 2024