436 F.Supp.3d 90
D.D.C.2019Background
- Plaintiff Center for Investigative Reporting requested all materials related to CBP border-wall RFPs and received 6,762 pages responsive to the FOIA request (proposals, internal CBP documents, and emails).
- Defendants (DHS/CBP) released ~1,174 pages (1,019 fully; 155 partially) and withheld 5,588 pages invoking FOIA Exemptions 3, 4, 5, 6, 7(C), and 7(E).
- Plaintiff did not challenge withholdings under Exemptions 3, 6, 7(C), and 7(E) (largely successful-bidder proposals and privacy/security material); it challenged 216 pages withheld/redacted under Exemptions 4 and 5 (unsuccessful-bidder proposals/emails and internal CBP deliberative documents/emails).
- Court reviewed agency Vaughn index and declarations and found the agency’s Exemption 5 (deliberative-process) descriptions inadequate on: (1) identifying the specific final decisions/subsidiary decisions, (2) author/recipient roles, and (3) chronology tying documents to decisions.
- The court also found the agency’s FOIA Improvement Act “foreseeable-harm” showings boilerplate and insufficiently connected to specific withheld information.
- For Exemption 4, the court held the agency failed to show the submitters customarily treated the withheld email information as private or that an assurance of privacy existed under the framework clarified by Food Marketing Institute; Exemption 4 and Exemption 5 claims denied without prejudice. Segregability findings were adequate for the concessions (Exemptions 3, 6, 7(C), 7(E)).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of Exemption 5 (deliberative-process) | Agency must identify specific decisions/subsidiary decisions and show documents are predecisional and deliberative | Documents are part of the ongoing contracting/procurement/construction deliberations and thus protected | Agency failed to establish predecisional/deliberative nexus (Vaughn index/declarations insufficient); summary judgment denied without prejudice; agency may supplement record |
| FOIA Improvement Act "foreseeable harm" | Agency used boilerplate assertions; must identify specific, foreseeable harms tied to each withheld item | Disclosure could cause confusion about non-final rationales and chill candid deliberations | Agency’s foreseeable-harm showing is inadequate; must articulate concrete, document-linked harms to meet heightened statutory burden |
| Exemption 4 (confidential commercial information) | Submitter emails were not shown to be customarily and actually kept private; agency affidavits lack foundation | Withholding protects competitors' interests and future bidding; procurement law protects proposals | Agency failed to prove submitters customarily treated withheld email content as private or that any assurance of privacy existed under Food Marketing/Critical Mass; Exemption 4 denial without prejudice |
| Segregability | Plaintiff seeks release of non-exempt portions | Agency attests to line-by-line review and release of segregable material | Segregability findings adequate for records withheld under Exemptions 3, 6, 7(C), 7(E); agency must address segregability when supplementing other withholdings |
Key Cases Cited
- Food Marketing Institute v. Argus Leader Media, 139 S. Ct. 2356 (2019) (adopts ordinary meaning of "confidential" for Exemption 4 and clarifies standard for commercial information)
- Abtew v. U.S. Dep't of Homeland Sec., 808 F.3d 895 (D.C. Cir. 2015) (describes deliberative-process privilege elements)
- Critical Mass Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871 (D.C. Cir. 1992) (test for confidentiality: information customarily not released by owner)
- Nat'l Parks & Conservation Ass'n v. Morton, 498 F.2d 765 (D.C. Cir. 1974) (competitive-harm rationale for Exemption 4; historical D.C. Circuit test)
- Senate of Puerto Rico v. U.S. Dep't of Justice, 823 F.2d 574 (D.C. Cir. 1987) (agency must pinpoint the agency decision to which a predecisional document contributed)
- Milner v. Dep't of the Navy, 562 U.S. 562 (2011) (FOIA exemptions are exclusive and must be narrowly construed)
- Johnson v. Exec. Office for U.S. Att'ys, 310 F.3d 771 (D.C. Cir. 2002) (agency affidavits plus Vaughn index can satisfy segregability requirement)
- Judicial Watch, Inc. v. U.S. Dep't of Defense, 847 F.3d 735 (D.C. Cir. 2017) (explains rationale for deliberative-process privilege and chilling effects on candid agency deliberation)