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Soghoian v. OMB, No. 11-2203, 2013 WL 1201488 (D.D.C. Mar. 26, 2013) (Lamberth, J.)

Re: Request for records relating to a graduated response system, "'a progressively escalating response system' that promotes legitimate use of copyrighted information and deters infringing activity" Disposition: Granting defendant's motion for summary judgment
  • Exemption 4 & Public domain: The court holds that OMB properly invoked Exemption 4 to withhold drafts of a memorandum of understanding between the Recording Industry of America (RIAA) and certain of its members, the Motion Picture Association and certain of its members, as well as several leading internet service providers.  The drafts were provided to OMB's Intellectual Property Enforcement Coordinator (IPEC) as part of the development of the graduated response system.  The court concludes that the defendant has demonstrated that the withheld documents are commercial in nature.  The Vaughn Index shows that the documents deal "with matters such as 'funding concerning the educational center and independent review process,' 'preliminary opinions about music consumption and proposed risk allocation,' and 'preliminary opinions about data disclosure and funding for the independent review process.'"  When conducting its confidentiality analysis, the court next finds that the documents were voluntarily provided to IPEC.  The signatories to the memorandum of understanding "were not doing business with the government but with each other."  "As such, their submissions to the government were voluntary for Exemption 4 purposes."  The court also finds that "the defendant has met its burden of establishing that the information provided to the government is not customarily released to the public."  The court notes that plaintiff failed to "substantively challenge" the sworn declaration provided by the Senior Vice President and Deputy General Counsel of RIAA which contains "numerous statements" indicating that the information withheld is not the type of information "customarily released to the public."   With regard to plaintiff's assertion that the information is publicly available, the court finds that "[p]laintiff has failed to sustain his burden of proving that preliminary drafts of information later released publicly are identical to publicly available information."  The final memorandum of understanding released publicly was "twenty pages long and contains an additional sixteen pages in attachments and signature pages."  The article in the public domain that was mentioned by plaintiff is "under three pages."  As the court explains, "[a] review of the article shows that it provides a cursory overview of the detail described in the final MoU [memorandum of understanding] and in no way indicates that the author obtained any of the draft copies at issue in this case."
  • Exemption 5: The court finds that OMB properly withheld "(1) government communications regarding the Memorandum of Understanding, (2) discussions regarding the Joint Strategic Plan, and (3) an email regarding France's law dealing with online infringement."  As an initial matter, the court rejects plaintiff's argument that materials from IPEC may not be withheld as deliberative because IPEC does not have final decision-making authority.  As the court states "[a]ssuming that plaintiff is correct that IPEC has limited or no actual decision-making authority, IPEC is still part of OMB and is charged with performing numerous tasks that relate to the formulation of policy."  The court further explains that the deliberative process privilege "does not require OMB or IPEC to exercise direct decision-making authority, as long as they are involved in deliberations that will contribute to policy choices made by the President or agencies regarding the graduated response system."  The court also makes clear that "the need to protect pre-decisional documents does not mean that the existence of the privilege turns on the ability of an agency to identify a specific decision in connection with which a memorandum is prepared.  The court finds that the email regarding France's law was properly withheld in part given that it is "pre-decisional because it predated any decision recommended by the Administration through the Joint Strategic Plan or the negotiations relating to the graduated response system."  Second, the court finds that it is "deliberative in the simplest sense because . . . [the] reason for asking a question about French law 'reflects the give-and-take of the consultative process.'"  With regard to the memorandum of understanding, the court finds that the defendant does not have to identify a specific decision that resulted from the deliberations.  It need only identify a process, and here "[t]he process identified by defendant and accepted by this Court is that of formulating a response to inform future policymaking regarding the graduated response program, which does not amount merely to the creation of press releases reciting recent events, as plaintiff contends."  The court finds that the documents are pre-decisional and takes note of the fact that they are drafts and says that "[a]though courts must still assess an agency's characterization of information as pre-decisional and deliberative, drafts often meet these criteria."  In short, the court concludes that the "documents provide more than sufficient context to conclude that the agency was utilizing the deliberative process here, participating in the exchange of ideas that have not yet been finalized into a policy that may or may not ultimately be adopted as policy."  Finally, the court determines that emails discussing a joint strategic plan to combat counterfeiting and infringement were also properly withheld pursuant Exemption 5 and the deliberative process privilege.  The court again rejects plaintiff's arguments that the documents cannot be pre-decisional because IPEC has limited authority to formulate policy.   The court also rejects plaintiff's argument that the defendant must "disclose any material incorporated into the final JSP [joint strategic plan]." It notes that contrary to plaintiff's assertions, "drafts may be withheld under Exemption 5 even if they do not substantially differ from final document versions" and that "[f]orcing the agency to identify differences between drafts and final versions would undermine the protection afforded by the deliberative process privilege, as it would grant requesters the right to review agency employees' suggestions that are then rejected in favor of alternatives."
  • Segregability:  The court concludes that "[b]ased on review of defendant's declaration, Vaughn Index, and redacted documents . . . the defendant has shown with reasonable specificity that the withheld information contain[s] no segregable factual information."  As the court notes, the defendant submitted a sworn declaration indicating "that information was withheld only after careful review of each line to determine whether any factual material could be segregated."  In addition, the defendant has indicated "with reasonable specificity that facts mixed in with the opinions of various government employees are intertwined with the agency's deliberative process."
Court Decision Topic(s)
District Court opinions
Exemption 4
Exemption 5
Updated August 6, 2014