567 F.Supp.3d 204
D.D.C.2021Background
- CREW filed FOIA requests (Aug 2019) to the Bureau of Prisons (BOP) and DOJ Office of Information Policy (OIP) seeking records about procurement of pentobarbital for federal executions.
- BOP and OIP conducted searches, released some pages with redactions, and withheld additional records; litigation commenced in Dec 2019 challenging withholdings.
- Agencies initially invoked multiple FOIA exemptions; through briefing they conceded/withdrew several exemptions, leaving disputes over Exemptions 4 and 7(E).
- BOP produced non-email and email records (some withheld or redacted); OIP produced a limited set of pages and withheld others.
- The court assumed adequacy of searches (not contested) and evaluated whether withheld material was properly withheld under Exemption 4 (commercial/confidential) and Exemption 7(E) (techniques/procedures risking circumvention).
- Judge Friedrich held Exemption 4 withholdings proper but rejected the use of Exemption 7(E) for the challenged records and ordered disclosure of the two records withheld under 7(E) subject to any Exemption 4 redactions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether withheld procurement materials are "commercial" under Exemption 4 | Disclosure would not cause commercial harm or identify suppliers; materials not all commercial | Materials (identities, pricing, contracts, testing, logistics) are commercial and disclosure would harm suppliers | Held commercial: court found materials are commercial in ordinary meaning and could harm suppliers |
| Whether withheld procurement materials are "confidential" under Exemption 4 | Agency failed to show information was customarily kept private or would cause competitive harm | Suppliers designated material proprietary; agency agreed to keep info confidential; presumption of good faith afforded to agency declaration | Held confidential: Food Marketing Institute standard met (providers keep info private); Exemption 4 withholding proper |
| Whether Exemption 7(E) protects descriptions of techniques/procedures used to obtain pentobarbital | Disclosure would risk circumvention of law and facilitate circumvention of procurement safeguards | Withheld as law-enforcement techniques/procedures compiled for law enforcement purposes (implementation of death sentences) | Held not covered: court concluded BOP’s procurement for punishment is outside Exemption 7(E)’s text because it does not pertain to law-enforcement "investigations or prosecutions"; 7(E) withholdings improper (two records to be disclosed subject to Exemption 4 redactions) |
Key Cases Cited
- Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356 (2019) (defines "confidential" for Exemption 4 and sets two-condition framework)
- Perry v. Block, 684 F.2d 121 (D.C. Cir. 1982) (agency must produce or justify withholding; search obligation explained)
- Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344 (D.C. Cir. 1983) (agency must show search reasonably calculated to uncover relevant documents)
- Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26 (D.C. Cir. 2002) (interpreting "commercial" under Exemption 4 by ordinary meaning)
- Pub. Citizen Health Research Grp. v. FDA, 704 F.2d 1280 (D.C. Cir. 1983) (breadth of "commercial" information for Exemption 4)
- Sussman v. U.S. Marshals Serv., 494 F.3d 1106 (D.C. Cir. 2007) (Exemption 7(E) protects confidential program details even when general contours are public)
- Shapiro v. DOJ, 893 F.3d 796 (D.C. Cir. 2018) (permitting 7(E) withholding for details about use of a law-enforcement database)
- SafeCard Servs. v. SEC, 926 F.2d 1197 (D.C. Cir. 1991) (agency affidavits entitled to presumption of good faith)
- Braintree Elec. Light Dep’t v. Dep’t of Energy, 494 F. Supp. 287 (D.D.C. 1980) (examples of information treated as commercial)
- Glossip v. Gross, 576 U.S. 863 (2015) (contextual discussion of manufacturers exiting drug markets after publicity)