Greenspan v. DOT, No. 22-280, 2025 WL 2591784 (D.D.C. Sept. 8, 2025) (Friedrich, J.)

Greenspan v. DOT, No. 22-280, 2025 WL 2591784 (D.D.C. Sept. 8, 2025) (Friedrich, J.)

Re: Request for records concerning oversight by the National Highway Traffic Safety Administration (“NHTSA”) of Tesla, Inc. (“Tesla”)

Disposition:  Denying plaintiff’s motion for summary judgment; granting defendant’s cross-motion for summary judgment

• Exemption 4: The court finds that “NHTSA has adequately shown – and [plaintiff] does not dispute – that its withholdings consist of commercial information obtained from Tesla.”  “[Plaintiff] argues, however, that the information NHTSA withheld under Exemption 4 was not confidential and that its disclosure would not have resulted in reasonably foreseeable harm.”  “The Court disagrees.”  “The declaration of . . . the Director for Field Reliability Engineering at Tesla, establishes that Tesla ‘customarily and actually treats’ the withheld documents as ‘technical and proprietary information.’”  “Indeed, Tesla uses ‘binding nondisclosure agreements or similar mechanisms’ when sharing that information with outside consultants and ‘takes extensive measures to guard and protect this information even internally.’”  “Tesla also provided the withheld information to NHTSA ‘under an assurance that the information w[ould] remain confidential and w[ould] be kept private’ . . . .” “[Plaintiff] does not dispute that Tesla customarily keeps the withheld information private, or that NHTSA assured Tesla that it would keep the withheld information secret.”  “Instead, he cites news stories and information leaks to argue that, even if the withheld information remains private and under Tesla’s control, ‘it is still true that similar information of the same type absolutely does not.’”  “It is true that ‘materials normally immunized from disclosure under FOIA lose their protective cloak once disclosed and preserved in a permanent public record.’” “But, ‘[a]s the party advocating disclosure, [plaintiff] bears the burden of production and must point to specific information in the public domain that appears to duplicate that being withheld.’”  “‘Prior disclosure of similar information does not suffice; instead, the specific information sought by [plaintiff] must already be in the public domain by official disclosure.’”  “The only specific and actually withheld information that [plaintiff] identifies as being in the public record relates to the terms of Tesla’s Early Access Program.”  “But he fails to show that this information was officially disclosed.”  “As such, [plaintiff] has not met his burden of establishing any prior disclosure of the withheld information.”
  
  “[Plaintiff’s] primary argument to contest confidentiality – and the sole basis for his summary judgment motion – rests on his interpretation of 49 C.F.R. § 512.17.”  “As relevant, that regulation states:  ‘When information claimed to be confidential is requested under the [FOIA], the determination will be made within twenty (20) working days after NHTSA receives such a request or within thirty (30) working days in unusual circumstances.’”  “From this language, [plaintiff] reasons that NHTSA must grant or else deem expired any related confidential treatment requests within 20 working days of a FOIA request.”  “According to [plaintiff], documents under ‘expired’ confidential treatment requests are, by default, not confidential and cannot be withheld under FOIA Exemption 4.”  “Because NHTSA waited more than 20 days before granting Tesla’s ‘expired’ confidentiality requests, he argues, NHTSA improperly withheld the underlying documents as confidential.”  “The Court disagrees – indeed, it has already rejected this argument twice over.”  “First, even if [plaintiff’s] interpretation of 49 C.F.R. § 512.17 is correct, ‘whether an agency treats information as confidential is not dispositive of whether that information may be withheld under FOIA.’” “Just as ‘there is nothing about the failure of an agency to produce documents promptly that would require the agency to waive otherwise properly claimed FOIA exemptions,’ . . . there is likewise nothing about NHTSA’s failure to make confidentiality determinations within regulatory deadlines that waives an otherwise properly claimed Exemption 4 withholding under the FOIA . . . .”  “Second, the regulations to which [plaintiff] points do not themselves support his argument that documents are presumptively public until a confidential treatment request is granted, or that such a request can expire.”  “Rather, the regulations contemplate that ‘[i]nformation received by NHTSA, for which a properly filed confidentiality request is submitted, will be kept confidential until the Chief Counsel makes a determination regarding its confidentiality.’” “And nowhere do they state that confidentiality requests expire if not ruled on within the 20-day timeframe.” “[Plaintiff] insists that a prior administrative appeal decision arising from one of his previous FOIA requests vindicates his interpretation of 49 C.F.R. § 512.”  “But agency adjudications are not binding on this Court.”  “And, in any event, [plaintiff’s] reading of the administrative appeal decision is unpersuasive.”  “[Plaintiff] ignores aspects of the administrative appeal decision that directly undercut his preferred reading.”  “True, the decision notes that confidentiality determinations ‘will ordinarily be made within twenty working days.’”  “But it further states that, ‘when a properly filed confidentiality request is submitted for information submitted to the agency, it “will be kept confidential until the Chief Counsel makes a determination regarding its confidentiality”’ and that ‘[i]nformation subject to such a request “will not be disclosed publicly.”’”  “If anything, therefore, the decision affirms that Tesla’s information is presumed confidential until NHTSA renders a determination, even if that determination is made after the ordinary 20-day timeframe.”
   
• Litigation Considerations, Evidentiary Showing, Foreseeable Harm Showing:  The court relates that “NHTSA reasonably determined that disclosure of the withheld information would genuinely harm Tesla’s commercial interests.”  “[Defendant’s] Declaration is no ‘perfunctory, sweeping, and undifferentiated declaration.’” “Rather, it categorizes each withheld document into dozens of categories of confidential information.”  “Nor does the declaration offer mere ‘boilerplate’ assertions of harm.”  “Indeed, the declaration articulates direct links between each specified harm and the specific information within each category of withheld material.”  “In response, [plaintiff] contends that the withholdings are ‘less likely’ to contain any harmful competitive information because (1) Tesla products have ‘barely changed,’ (2) enthusiasts have published deconstructions of their own Tesla vehicles, and (3) the Early Access Program terms have been publicly litigated.”  “But the accessibility of other publicly available documents does not eliminate the harm associated with releasing these specific documents.”  “In fact, the ‘public availability of analogous data’ can ‘make the requested data more harmful if the public data can be combined with the requested data to obtain commercial information that is likely to cause substantial competitive harm.’”  “And [plaintiff] has not shown that Tesla officially confirmed whether any of that public information is true, which ‘can be informative in itself’ to Tesla’s competitors.”  “The defendants have met their burden of showing that Tesla faces foreseeable harm from the disclosure of the withheld information.”
   
• Exemption 5, Deliberative Process Privilege & Foreseeable Harm and Other Considerations: The court finds that “NHTSA properly invoked the deliberative process privilege.”  “The defendants have adequately justified NHTSA’s Exemption 5 withholdings under the deliberative process privilege.”  “The withheld agency communications and drafts predated the specific and final decision whether to investigate Tesla, as they concerned ‘how to proceed with NHTSA’s investigatory and enforcement activity concerning Tesla’s vehicles.’”  “The withholdings were also deliberative, as they ‘reflected . . . consultative discussions,’ . . . and were generated in the ‘process of formulating strategies and approaches towards next steps or options in connection with [NHTSA’s investigatory and enforcement activity][]’ . . . .”  “Indeed, the documents served ‘to impart information to other NHTSA staff that they would consider as they sought to pursue their investigatory and enforcement activity with respect to the investigations and inquiries into certain aspects of Tesla’s vehicles.’”  “Finally, ‘the nature of the decisionmaking authority vested in the . . . person[s] issuing the disputed document[s]’ further indicates that the materials were predecisional and deliberative, . . . as the authors ‘did not have final decisionmaking authority concerning the issue,’ and the materials ‘d[id] not reflect a final decision[]’ . . . .”  “[Plaintiff] ‘provides no basis for this court to conclude that [NHTSA] has mischaracterized the content of the material withheld under Exemption 5.’”  “The defendants have also shown that NHTSA satisfied the foreseeable harm requirement as to these documents.”  “In addition to providing sufficient ‘context or insight into the specific decision-making processes or deliberations at issue,’ NHTSA explained how the agency ‘in particular would be harmed by disclosure.’”  “In particular, [defendant’s] Declaration attests that disclosure of the withheld documents would lead ‘agency personnel [to] become hesitant to candidly discuss ideas or proposals for handling safety investigations.’”  “NHTSA properly invoked the deliberative process privilege.”
   
• Litigation Considerations, Evidentiary Showing, “Reasonably Segregable” Showing: The court finds that “defendants have shown that NHTSA satisfied these requirements.”  “[Defendant’s] declarations attest that the agency ‘performed a line-by-line review of the documents withheld in full or in part and confirmed, as further described in NHTSA’s Vaughn index, that further segregation or disclosure . . . would cause foreseeable competitive harm to Tesla and . . . foreseeable harm to NHTSA itself.’”  “The defendants’ declarations and Vaughn index, combined with the presumption of agency compliance, are sufficient to establish that NHTSA complied with its segregability obligations.”
   
• Litigation Considerations Declarations:  “Finally, [plaintiff] argues that NHTSA acted in persistent ‘bad faith’ by ‘retroactively grant[ing] expired confidential treatment requests . . . often the day before a production deadline.’”  “For the reasons discussed above, [plaintiff] at most accuses NHTSA of untimely adjudications of requests for confidential treatment under agency regulations.”  “But ‘courts routinely find that delays in responding to FOIA requests are not, in and of themselves, indicative of agency bad faith.’” “Indeed, even for statutory timelines, ‘delay alone cannot be said to indicate an absence of good faith.’” “Because [plaintiff’s] only non-speculative evidence of bad faith is of agency delay in alleged tension with regulatory timeframes, he fails to overcome the good faith presumption to which NHTSA is entitled.”