Occupational Safety & Health L. Project, PLLC v. U.S. Dep’t of Labor, No. 21-2028, 2022 WL 3444935 (D.D.C. Aug. 17, 2022) (Lamberth, J.)

Occupational Safety & Health L. Project, PLLC v. U.S. Dep’t of Labor, No. 21-2028, 2022 WL 3444935 (D.D.C. Aug. 17, 2022) (Lamberth, J.)

Re:  Request for Abatement Agreement Plan contained in settlement agreement that details company’s abatement plans and housekeeping measures to limit beryllium exposure at three of company’s smelting facilities

Disposition:  Granting in part and denying in part defendant’s motion for summary judgment; denying plaintiff’s cross-motion for summary judgment

• Exemption 4:  The court holds that “the government has met its burden on summary judgment for the ‘commercial’ and ‘obtained from a person’ requirements of Exemption 4.”  “However, the Court will deny summary judgment on . . . the confidentiality prong of Exemption 4 . . . .”  First, the court holds that, “[b]ecause [the company] has a commercial interest in the methods contained within the Abatement Plan Agreement, the government has sufficiently demonstrated that the withheld information is commercial.”  “As one court in this district has already explained, ‘the way th[at] companies implement their compliance programs’ can be commercial when the programs are ‘sufficiently instrumental to the companies’ operations.’”  “Here, the government has demonstrated that the measures created by [the company] and approved by OSHA are sufficiently related to [the company’s] operations to be of commercial interest.”  “These methods were developed at great expense and are commercially valuable within the industry.”  “The efficiency increase captured by [the company’s] methods is squarely focused on the ‘income-producing aspects’ of its operations – the core of commercial information under Exemption 4.”  “Moreover, the commercial nature of this information is further demonstrated by the fact that disclosure would help rivals by providing them a several-million-dollar advantage over [the company] for developing their own systems.”  “And finally, this Court's ex parte review has confirmed that the redacted information contains specific plant-by-plant procedures detailing how [the company] will comply with OSHA’s rule.”
  
  Second, the court finds that “The Department has . . . shown that the withheld information was ‘obtained from a person’ under Exemption 4.”  The court relates that “[t]he core dispute between the government and [plaintiff] is whether the information, developed and given to OSHA by [the company], was transformed into government information because the withheld measures were approved by OSHA through negotiation and the final Abatement Plan Agreement.”  The court finds that “[t]he government has shown that the information withheld in the Abatement Plan Agreement was obtained from [the company] for purposes of Exemption 4.”  “[The company] developed the work practices and engineering controls that are represented in the Abatement Plan Agreement.”  “After negotiation, OSHA ‘determined that compliance with the terms of [the abatement plans], would satisfy [the company’s] obligations’ under the Beryllium rule.”  “The information originated with [the company], and OSHA’s actions here have not transformed [the company’s] information into governmental information.”  “Therefore, the government has sufficiently demonstrated that the withheld details of the Abatement Plan Agreement were developed by a non-governmental party, incorporated into a governmental document after review, and were not substantially altered by the agency.”  The court relates that plaintiff argues that “even if the government does merely incorporate and approve of information obtained from an outside party, executive approval transforms that outside information into governmental information.”  The court finds that “[w]hen the government has not ‘substantially reformulated’ the information, the information maintains its protection under Exemption 4.”  “While OSHA approved of [the company’s] designs, the Department has adequately demonstrated that the information sought by OSHLP remains the information provided by [the company].”  “Review and approval do not equate to substantial reformulation.”
  
  Third, the court finds that “[defendant] has not provided reasonably specific detail demonstrating that the type of information withheld is customarily treated as private by [the company].”  “After Food Marketing Institute, courts in this district have concluded that Critical Mass and its progeny provide the governing standard for assessing confidentiality under Exemption 4.”  “This Court will therefore look to Critical Mass and its progeny to supply the rules for determining a custom of confidentiality.”  “Critical Mass, which focuses on the custom of confidentiality, will serve as the foundation.”  “But the Court will also look to how this information was actually treated.”  “The Court . . . begin[s] by eliminating the evidence that is largely immaterial to the question of [the company’s] custom.”  The court finds that “almost all of the Department of Labor’s and [plaintiff’s] evidence on confidentiality center on how [the company] actually handled the particular information here.”  “That evidence is important later, . . . but has limited bearing on [the company’s] treatment of this kind of information as a matter of custom.”  “Whether [the company] cares to keep this particular information private or secret does not establish that it more generally treats this kind of information that way.”  The court also finds that “both [defendant and plaintiff] discuss general practices by the government and industry for this kind of information.”  “But the test here is not about general custom in the industry, nor by the government.”  “Rather, the issue is how [the company] customarily treats the information, not how its peers do.”  The court relates that “[t]he government’s main evidence for establishing a custom of confidentiality is the declaration of a [company] plant manager . . . .”  “He states that ‘[the company] has no access to its competitors’ engineering and work practices that limit worker exposure to beryllium, nor does it share its own practices with its competitors.’”  “And [the company plant manager] explains that these practices are incorporated into the Abatement Plan Agreement.”  “Nonetheless, [the court finds that] the government has not met its burden on summary judgment to provide the reasonable specificity required.”  “The record provides an implication that [the company] customarily keeps this kind of information confidential, but fails to cross the finish line.”  “At the very least, the government must provide some detail as to how the kind of practices and procedures incorporated into the Abatement Plan Agreement have been treated by [the company] over time.”  “And more specifically, the government must explain how the kinds of details in the facility-specific abatement plans and housekeeping schedules are customarily treated as private.”  “At the same time, [plaintiff] cannot succeed on summary judgment at this stage.”  “There is a genuine dispute of material fact as to whether [the company] customarily treats the kind of information here as private or secret and thus whether Exemption 4 is indeed applicable to the withheld information.”  Regarding the particular application here, “given the contrary evidence in the record, there is a genuine dispute of material fact requiring denial of summary judgment.”  The court finds that “the government did submit significant evidence detailing the cautious and deliberate measures [the company] took to keep its information private.”  However, the court also notes that “[plaintiff] argues that [“receipt [by an outside group] of part of a draft of the abatement plan agreement” during emails with defendant] sinks the Department’s claim that [the company] actually kept the information confidential because OSHA’s attorney did not ask [the outside group], in that email exchange, to maintain the confidentiality of the draft abatement plan.”  “However, the surrounding circumstances belie [plaintiff’s] argument.”  “For one, the draft includes ‘CONFIDENTIAL TREATMENT REQUESTED’ at the top and similar ‘[The company] designates all the items discussed in this document confidential commercial information’ and ‘[The company] claims that this document thus is protected from disclosure’ language as the final agreement.”  “Next, [the company] did not directly share the draft agreement.”  “Rather, OSHA’s attorney shared the document after confirmation from [the company] about what should be shared.”  The court finds that “[s]tanding alone, that disclosure would likely not be sufficiently material to overcome the government’s other evidence.”  “Yet, [the outside group’s] email exchange with counsel for [the company] also chips away at the government’s assertion regarding actual private treatment by [the company].”  “The Court cannot reconcile the conflict between the evidence favorable to [plaintiff] – suggesting that [the company] did not actually treat the information as particularly private during the two listed interactions with [the outside group] – and the government’s contrary evidence that [the company] took many measures to keep the information private.”  “Furthermore, the import of these two interactions are themselves subject to varied interpretations on the current record.”  “Accordingly, there is a genuine dispute of material fact such that a reasonable factfinder could conclude [the company] actually treated the information here as private or secret, or that it did not.”
   
• Litigation Considerations, Foreseeable Harm Showing:  The court holds that “because the government ‘ha[s] not established that the withheld information falls within the scope of Exemption 4,’ it has failed to ‘satisfy the “heightened” foreseeable-harm requirement as well.’”
   
• Litigation Considerations, “Reasonably Segregable” Requirements:  “[The] Court cannot yet determine whether the government has met its burden on segregability.”  “The government provided an affidavit attesting to segregability.”  “However, given [the] Court’s conclusion that [the company’s] confidential practice has not been sufficiently established for summary judgment, . . . the government will need to supplement its segregability evidence after further review and consideration in line with this opinion.”  “Moreover, the government might ‘reexamine, in light of this guidance,’ whether parts of the Abatement Plan Agreement should in fact be disclosed because [the company] would not customarily treat the information in those parts as private, or that it has not actually treated those parts as private.”