First Look Inst., Inc. v. U.S. Marine Corps., No. 21-5087, 2022 U.S. Dist. LEXIS 105571 (C.D. Cal. June 13, 2022) (Scarsi, J.)

First Look Inst., Inc. v. U.S. Marine Corps., No. 21-5087, 2022 U.S. Dist. LEXIS 105571 (C.D. Cal. June 13, 2022) (Scarsi, J.)

Re:  Request for records concerning Lattice, artificial intelligence defense system deployed at multiple U.S. Marine bases and along the U.S.-Mexico border

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

• Exemption 4:  As to Plaintiffs' move for summary judgment on the grounds that Defendant improperly withheld a user guide, "[t]o show a document is protected under exemption 4, the agency must show a record is:  '(1) commercial or financial information, (2) obtained from a person or by the government, (3) that is privileged and confidential.'"  "The agency must also demonstrate reasonably foreseeable harm from the disclosure of a record."  "Courts determine whether a record is commercial according to the ordinary and common meaning of the term commercial."  "A person from whom a record was obtained includes a corporation."  "Finally, a record is privileged and confidential where it is both customarily and actually treated as private by its owner and is provided to the government under an assurance of privacy."
  
  "Defendant has demonstrated each element of this test."  "First, the user guide is a commercial document."  "The guide is a nonpublic technical guide that contains both trade secrets and nonpublic commercial information."  "Second, the parties do not dispute that Anduril [the defense start-up that developed the Lattice system] is a person under [5 U.S.C.] § 551(2)."  "Third, the user guide is privileged and confidential."  "Anduril and Defendant have both customarily and actually treated this information as confidential."  "Anduril employs strict operational security standards to protect its information from outside persons."  "[Additionally, district courts] addressing . . . reasonably foreseeable harm . . . have adopted two standards."  "One group of courts have adopted the substantial competitive harm test the Supreme Court rejected in [Food Marketing Institute v. Argus Leader Media]."  "Another group of courts have adopted a requirement that the agency explain how the disclosure of a specific document would harm the interest protected by the exemption."  "[In the instant case, the Court] declines to choose one approach over the other because under either approach, Defendant properly justified its invocation of [E]xemption 4."
  
  "Plaintiffs argue that three facts unique to Anduril's contract and technology vitiate the actual and customary treatment of the user guide as confidential."  "First, Plaintiffs point to contract language that permits Defendant to disclose technical information without restriction."  "The contract between Anduril and Defendant incorporates 48 C.F.R. § 252.227-7015."  "This regulation provides that the government can disclose technical information provided to it without restrictions on use, modification, release, or further disclosure other than release or disclosure resulting from business entity changes."  "This regulation also states that except as provided in subsection (b)(1), the government shall not release technical data without the contractor's permission."  "Even assuming Plaintiffs' interpretation of this regulation [that the user guide was not confidential because defendant could disclose it at any time] is correct, Plaintiffs agreed at the hearing that under Argus Leader the Court must examine the actual course of conduct rather than any possible hypothetical conduct to determine whether a document was kept privileged and confidential."  "Because all evidence in the record demonstrates that Defendant and Anduril actually and customarily kept this information confidential and privileged, the presence of this regulation does not alter the Court's conclusion that Defendant properly justified withholding the user guide under [E]xemption 4." 
  
  "Second, Plaintiffs point to the fact that Anduril did not claim its employees with access to the user guides had to sign nondisclosure agreements."  "The absence of nondisclosure agreements is a factor that supports concluding that a company or the government did not treat a record as privileged or confidential."  "The record as a whole is absent of any indication that the company or the government treated the user guide as anything other than privileged and confidential, though."  "The absence of any evidence that Anduril required its employees to sign nondisclosure agreements thus does not change the Court's conclusion that Anduril and Defendant actually and customarily treated the user guide as confidential and privileged."
  
  "Finally, Plaintiffs argue that the existence of three patents covering the Lattice system vitiates the confidentiality of this information."  But "[t]hese patents only provide general descriptions of algorithms for how to incorporate a system of secure communications from many different sensors and analyze the inputs."  "What the patents do not describe is how the underlying system actually works:  what sensors are used, how the sensors are configured, the exact technological mechanisms of the sensors, the machine learning algorithms used, and how the end user operates the system."  "These patents do not disclose any information that Anduril claims is in the user guide."  "Thus, their existence does not vitiate the actual and customary treatment of the user guide as confidential and privileged by Anduril and Defendant."