Naumes v. Dep’t of the Army, No. 21-1670, 2022 WL 17752206 (D.D.C. Dec. 19, 2022) (Boasberg, J.)

Naumes v. Dep’t of the Army, No. 21-1670, 2022 WL 17752206 (D.D.C. Dec. 19, 2022) (Boasberg, J.)

Re:  Request for various iterations of survey that Army administers to assess well-being of employees and soldiers

Disposition:  Granting defendant’s renewed motion for summary judgment

• Exemption 4:  The court relates that “Defendant Department of the Army has furnished everything [plaintiff] asked for — except for three sets of [Global Assessment Tool (“GAT”)] questions contained in the survey.”  “The GAT questions come from various ‘scales’ (a scale is a set of questions), at least some of which are developed by civilian scientists or scholars, and some of which are protected by copyright.”  First, the court notes that “[it] previously held that the copyrighted GAT scales were ‘commercial’ because copyright holders naturally have a commercial interest in their information.”  Second, the court notes that “[it] did not previously reach a definitive conclusion on the ‘obtained from a person’ requirement, but the Army’s supplemental briefing equips it to do so now.”  “[Defendant] explains that the scales it received from scientists were only ‘“slightly” modified [from their original form] to fit the Army context,’ including by adapting the wording of the questions for a military audience.”  “[Plaintiff], for her part, no longer meaningfully contests that the information she seeks came ‘from a person.’”  Third, the court notes that “[a]pparently, [the outside scientist who holds a copyright for this material] has yet to disclose her scales to any entity or individual other than the Army.”  The court finds that “[h]er declaration thus provides sufficient evidence that she does not ‘customarily’ release them to the general public.”  “That is all it takes to satisfy Exemption 4’s confidentiality requirement in this Circuit.”  The court relates that “[plaintiff] briefly argues that because the Army did not provide [the outside scientist] with any ‘assurance of confidentiality’ when she first shared her scales with the Government, those questions are not confidential under Exemption 4.” “The Court already explained in its prior Opinion, however, that ‘[t]his Circuit does not require assurances of privacy as a separate component of confidentiality.’”  “Protecting [the outside scientist’s] scales from disclosure has the added benefit of comporting with Exemption 4’s purpose.”  “Were the Army to release [the outside scientist’s] scales in defiance of her insistence that they remain confidential, researchers like her who ‘seek[ ] to do business with the Government will be less likely to trust [it] with copyrighted information’ in the future.”  “That would interfere with the Government’s access to data and could have ripple effects for ‘military readiness and national security.’”  “The information provider’s interests, which are also relevant under Exemption 4, strongly favor exemption from disclosure, too.”  “[W]ere this Court to order the Army to disclose [the outside scientist’s] scales to [plaintiff] in this action, anyone could get their hands on the scales by submitting a FOIA request.”  “That would create a near-costless alternative to paying for access to [the outside scientist’s] work if it is ever published, which would almost certainly affect the market for it.”  “In sum, this is a case where both law and policy point clearly in the same direction:  [the outside scientist’s] scales should be withheld under Exemption 4.”
  
  Responding to plaintiff’s argument to the contrary, the court finds that “[t]he Army has shown that disclosure could cause financial harm both to the copyright holder and to itself from litigation over the disclosures.”  “The potential harm to government interests from disclosure is especially notable in cases like this one, where confidential information was voluntarily provided to the Government.”  “In such cases, the Circuit has instructed that the harm is ‘common sense.’”  “That is so here as well.”
   
• Waiver And Discretionary Disclosure; Waiver:  The court relates that “in the final pages of her Opposition, [plaintiff] suggests that the information she seeks may already be public.”  “Plaintiff reveals that she was able to locate a ‘full and unredacted copy of [one version of the] GAT on a public website’ . . . .”  “[Plaintiff] found this particular copy on the website for the Office of Information and Regulatory Affairs, which sits within the Executive Office of the President.”  “[T]he Court at oral argument asked her counsel why Plaintiff continues to pursue this suit if she has already found what she is looking for.”  “Counsel explained that because there are multiple versions of the GAT, only one of which OIRA published, [plaintiff] still seeks access to Park's scales as they appear in the remaining iterations of the survey.”  “If that is the case, however, then the versions of [the outside scientist’s] scales that she seeks are not public.”  The court holds that “the publication of this version of the GAT does not affect the Army’s right to invoke Exemption 4.”