Calderon v. United States Department of Agriculture
2017 WL 680367
D.D.C.2017Background
- Calderon submitted a 2013 FOIA request to USDA FAS seeking transactional documents submitted under the GSM-102 Export Credit Guarantee Program (records re: Russia, Ukraine, Kazakhstan). FAS produced ~9,212 pages with extensive redactions under FOIA Exemptions 4 (confidential commercial information) and 6 (personal privacy).
- GSM-102 involves exporters, U.S. banks, foreign banks, and importers; Calderon alleges many transactions were “synthetic” structured-trade-finance deals (recycled bills of lading), while FAS disputes that synthetic structure can be determined from the records.
- FAS solicited submitter input; several exporters and banks objected to disclosure and provided declarations asserting likely competitive harm; FAS redacted pricing, quantities, partner identities, employee contact info, and bank/account/tax identifiers among other data.
- Calderon challenged the redactions and sought in camera review; he also argued some redacted data are public (e.g., via PIERS) and that many target countries no longer participate in GSM-102.
- The court held cross-motions for summary judgment and concluded Exemptions 4 and 6 apply to some redactions but not others, resolving disclosure for multiple discrete categories of information.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of Exemption 4 to transactional parties (names/addresses of foreign banks, importers, buyers, consignees, LC parties) | Calderon: information is stale or public (countries/banks no longer in program; PIERS) and disclosure won’t cause competitive harm | FAS: disclosure would enable competitors to undercut submitters, impairing competitive position and future participation | Court: Exemption 4 does NOT apply for parties in Russia and Ukraine (countries no longer qualify); genuine dispute for Kazakhstan; some party identities must be disclosed for Russia/Ukraine. |
| Applicability of Exemption 4 to pricing/quantity/shipper data | Calderon: pricing/quantities are non-competitive or publicly reconstructable (PIERS); synthetic trades undermine confidentiality | FAS: unit prices, quantities, and shippers provide competitors insight to undercut submitters | Court: Genuine issue of material fact exists re: public availability via PIERS and whether data remain confidential; denied summary judgment for both sides on these categories. |
| Applicability of Exemption 4 to bank account and tax ID information | Calderon: seeks disclosure | FAS: disclosure risks fraud/theft and competitive harm | Court: Exemption 4 applies; bank account numbers and tax IDs may be withheld (FAS wins). |
| Applicability of Exemption 6 to names vs. contact details of private individuals (employees, officials) | Calderon: business names/contacts are not personal and should be disclosed; public interest in exposing program practices | FAS: disclosure of emails/phone numbers/signatures would invade privacy and prompt harassment/solicitations | Court: Names and business addresses have no substantial privacy interest — must be disclosed; business email addresses, phone numbers, and signatures implicate privacy and may be withheld under Exemption 6. |
Key Cases Cited
- Nat’l Parks & Conservation Ass’n v. Morton, 498 F.2d 765 (D.C. Cir.) (establishes two-prong test for confidentiality under Exemption 4)
- Niagara Mohawk Power Corp. v. U.S. Dep’t of Energy, 169 F.3d 16 (D.C. Cir.) (requires submitter to show actual competition and likely substantial competitive injury for Exemption 4)
- Dep’t of State v. Ray, 502 U.S. 164 (U.S. 1991) (FOIA’s strong presumption of disclosure; lists of names not inherently private)
- Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242 (D.C. Cir.) (Vaughn index/function, detailed justification requirement)
- Public Citizen Health Research Grp. v. FDA, 704 F.2d 1280 (D.C. Cir.) (competitive injury must flow from affirmative use by competitors)
- Worthington Compressors, Inc. v. Costle, 662 F.2d 45 (D.C. Cir.) (information freely or cheaply available in public domain cannot be confidential)
- Payne Enters., Inc. v. United States, 837 F.2d 486 (D.C. Cir.) (stale information often of little value for competitive harm analysis)
- Nat’l Ass’n of Retired Fed. Emps. v. Horner, 879 F.2d 873 (D.C. Cir.) (if no significant privacy interest, FOIA requires disclosure)