Board of Regents of the Nevada System of Higher Education v. United States
16-376
| Fed. Cl. | Jul 5, 2017Background
- Parties: Board of Regents of the Nevada System of Higher Education (Desert Research Institute) sued the United States; Oak Ridge Associated Universities intervened. The Court reviewed intervenor’s request to redact portions of an opinion filed under seal.
- Protective order governed filings, protecting source selection, proprietary, and confidential information; court acknowledged common-law presumption of public access to judicial records is not absolute.
- Intervenor sought broad redactions claiming trade-secret/proprietary status under FOIA Exemption b(4) for numerous proposal details.
- The court evaluated which proposal details legitimately merited protection versus which should remain public for transparency and intelligibility of the opinion.
- Court found most requested redactions unjustified: routine or non-proprietary matters (e.g., use of part-time labor, billing line-item descriptions) should remain, while some specific data (exact FTE numbers) could be redacted because they offered competitive value without aiding comprehension.
- The opinion was ordered reissued with targeted redactions (FTE numbers and extent/manner details where appropriate) but retained references to part-time labor use and billing methods.
Issues
| Issue | Plaintiff's Argument | Defendant/Intervenor's Argument | Held |
|---|---|---|---|
| Whether protective-order-covered proposal content must be redacted from opinion | Public access and intelligibility of opinions; many details are not proprietary | Broad redaction needed to protect proprietary/trade-secret information under FOIA Exemption b(4) | Majority of proposed redactions denied; public access favored unless specific harm shown |
| Protectability of mere use of part-time employees | Such operational facts are not proprietary and may remain public | Use of part-time labor should be redacted as competitively sensitive | Denied: proposed use of part-time employees need not be redacted; extent/manner may be redacted |
| Protectability of specific Full Time Equivalent (FTE) numbers | Numbers unnecessary to comprehension and may be competitively harmful | FTE numbers are proprietary and should be redacted | Granted: specific FTE numbers redacted as they could aid competitors and are not essential to opinion |
| Protectability of billing method details (labor billed as ODCs vs direct labor) | How contractor bills line items does not reveal performance methods and should remain public | Billing detail is proprietary and should be redacted | Denied: billing-line information not redacted because it does not reveal how work is performed |
Key Cases Cited
- Baystate Techs., Inc. v. Bowers, [citation="283 F. App'x 808"] (Fed. Cir. 2008) (recognizing presumption of public access to judicial records)
- Anderson v. Cryovac, Inc., 805 F.2d 1 (1st Cir. 1986) (materials the court relies on may be subject to public access)
- Nixon v. Warner Commc'ns, Inc., 435 U.S. 589 (1978) (public access presumption is not absolute; business information may be withheld)
- In re Reporters Comm. for Freedom of the Press, 775 F.2d 1325 (D.C. Cir. 1985) (limits on disclosure of sensitive business information)
- Siedle v. Putnam Invs., Inc., 147 F.3d 7 (1st Cir. 1998) (public monitoring of judiciary fosters transparency and legitimacy)
- Madison Servs., Inc. v. United States, 92 Fed. Cl. 120 (2010) (discussing public access principles in bid protests)
- FirstLine Transp. Sec., Inc. v. United States, 119 Fed. Cl. 116 (2014) (discussing redaction practices in bid protest opinions)
- Survival Sys. USA, Inc. v. United States, 102 Fed. Cl. 255 (2011) (example of redaction decisions in procurement opinions)
- Tech Sys., Inc. v. United States, 98 Fed. Cl. 228 (2011) (redaction analysis in bid protest context)
- Advanced Data Concepts, Inc. v. United States, 43 Fed. Cl. 410 (1999) (procurement opinion addressing confidentiality and redaction)