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Immerso v. U.S. Dep't of Labor, No. 19-3777, 2020 WL 6826271 (E.D.N.Y. Nov. 20, 2020) (Garaufis, J.)


Immerso v. U.S. Dep't of Labor, No. 19-3777, 2020 WL 6826271 (E.D.N.Y. Nov. 20, 2020) (Garaufis, J.)

Re:  Request for email concerning company's contract with U.S. Department of State

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

  • Exemption 4:  "The court finds that DOL has described the redacted material in terms that sufficiently establish all three elements of the tripartite test for withholding pursuant to FOIA Exemption 4."  First, the court relates that defendant stated that "the . . . email was 'transmitted to an in-house attorney for [the company] to apprise him of developments potentially impacting [a] contract.'"  The court finds that "[b]usiness organizations plainly have a commercial interest in their contracts and matters affecting such contracts, and the court finds that DOL has satisfactorily alleged that the redacted information was commercial or financial in nature."  Second, the court finds that "[i]t is . . . clear that the . . . email did not originate within the Government, but rather that it was obtained by DOL from 'a person'[ the company] within the meaning of FOIA Exemption 4, satisfying the second prong of the test."  Third, regarding privileged information, the court relates that "[defendant's] declaration explains that the . . . email was withheld because it was 'marked "Subject to Attorney Client Privilege" and transmitted to an in-house attorney for [the company] in order to apprise him of developments' relating to the . . . contract 'and to explicitly request the attorney's input and review of the information transmitted.'"  "DOL asserts, on the basis of [defendant's] declaration, that the . . . email is marked with an attorney-client privilege notation and contains an explicit request from [the company] to . . . a [company] in-house attorney, to review the material laid out in the email and to provide his input."  The court finds that "[t]hat explanation is 'reasonably detailed' and 'facially sufficient' for the court to credit DOL's conclusion that the information in question was privileged."
  • Litigation Considerations, "Reasonably Segregable" Requirements:  "The court . . . credits DOL's assertion that the material which Plaintiff alleges ought to have been segregated was intertwined with privileged information and of insufficient informational value to warrant its segregation."  "The court defers to the agency's good-faith representations and will not direct it to disclose meaningless information, the substance of which has already been conveyed to Plaintiff, simply so that Plaintiff can test the veracity of DOL's representations."
Court Decision Topic(s)
District Court opinions
Exemption 4
Litigation Considerations, “Reasonably Segregable” Requirements
Updated December 11, 2020