Ryan, LLC v. U.S. Dep’t of Interior, No. 22-10373, 2022 WL 17250186 (5th Cir. Nov. 28, 2022) (per curiam)

Ryan, LLC v. U.S. Dep’t of Interior, No. 22-10373, 2022 WL 17250186 (5th Cir. Nov. 28, 2022) (per curiam)

Re:  Request for Office of Natural Resources Revenue (“ONRR”) report concerning suspected fraudulent tax refund request based on “process for ‘capturing’ large tax deductions and recovering overpaid royalties”

Disposition:  Vacating and remanding district court’s grant of government’s motion for summary judgment

• Reverse FOIA:  The Court of Appeals for the Fifth Circuit holds that “it’s not clear the district court and the OIG properly ‘consider[ed] an important aspect of the problem,’ namely the ‘relevant factors’ of Exemption 4 laid out in [Food Marketing Institute v. Argus Leader Media].”  “In its decision, the OIG found [the submitter] didn't treat its refund formula as confidential and didn't receive any ‘assurance of confidentiality’ from the government.”  “The district court agreed on the latter part, holding [the submitter] never received any promise from the OIG that it would keep [the submitter’s] refund formula secret.”  “But, there’s two problems with those findings.”  “First, it’s not evident that the OIG and the district properly applied the ‘assurance’ prong of Argus.”  “The OIG found it told [the submitter] – through a standard disclaimer – that it would ‘publicly disseminate the information’ it receives from ‘submitters of information’ if ‘required by law.’”  “The district court echoed this reasoning, stating the OIG is only required to ‘notify’ someone in the face of a FOIA request – not keep their information private . . . .”  “But, an ‘assurance of confidentiality’ can exist by way of a federal regulation.”  “Here, under a federal regulation named ‘Does ONRR protect information that I provide,’ the ONRR warrants that ‘[t]o the extent that applicable laws and regulations permit, ONRR will keep confidential any data that you or your affiliate submit(s) that is privileged, confidential, or otherwise exempt from disclosure.’”  “Yet, the district court and the OIG didn’t address this federal law.”  “Second, it's not clear the OIG or the district court seriously considered whether [the submitter] ‘customarily and actually treat[s] as private’ its refund application process.”  “The OIG ruled [the submitter’s] online ‘advertis[ing]’ of its services rendered the information in question non-confidential.”  “But, the connection between ads on [the submitter’s] website and its secretive refund formula isn’t obvious.”  “[The submitter] didn't publicize its confidential process.”  “As for the district court, it didn't consider this Argus prong except to say in passing that the ‘confidentiality agreements between [the submitter] and its clients do not promise confidentiality from the government because OIG was not a party to any such agreements.’”  “But, under Argus, information may be considered confidential if it is ‘both customarily and actually treated as private by its owner.’”  “So, [the submitter’s] agreement with its clients – as well as its lawsuits against the OIG and other unexplored facts – may evidence a secretive approach to the refund application process that might satisfy the prongs of Argus.”