CREW v. DOJ, 58 F.4th 1255

Background

In 2019 DOJ resumed federal executions and the Bureau of Prisons (BOP) procured pentobarbital and related services (manufacturer, compounding pharmacy, testing labs).
Citizens for Responsibility and Ethics in Washington (CREW) submitted a FOIA request for BOP records on pentobarbital procurement; BOP produced some records but withheld contractor identities and various contract terms under FOIA Exemption 4.
BOP withheld names plus “key contract terms” (price, quantities, expiration dates, lot numbers, invoices, concentrations, purchase/order numbers, delivery dates) and submitted declarations from agency officials (no contractor affidavits).
The district court sustained BOP’s Exemption 4 withholdings; CREW appealed. Separately, Exemption 7(E) withholdings were resolved for CREW and are not at issue here.
On appeal the D.C. Circuit held BOP failed to meet its burden: (1) BOP did not show contractors’ names are “commercial” information under Exemption 4, and (2) BOP did not provide the detailed, specific showing required to withhold contract terms as “confidential” to the extent they identify contractors. The court reversed and remanded.
The court also instructed the district court on public-domain/waiver issues because some records (drug concentration and expiration dates) had been publicly filed in other litigation and may limit remaining withholdings.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether contractors’ names are "commercial information" under Exemption 4	Names are not commercial; BOP has not shown names are commercial in and of themselves	Disclosure would cause public backlash, harm suppliers financially, and thus names should be exempt because disclosure has commercial consequences	Reversed: BOP failed to show names are "commercial" in themselves; downstream commercial harm alone is insufficient
Whether key contract terms (price, quantities, expiration dates, lot numbers, etc.) are "confidential" because they could identify contractors	These terms are not confidential unless BOP shows they actually identify contractors	Terms can be withheld because, in BOP's view, they could reveal supplier identities and suppliers keep such identifying info private	Remanded: BOP must provide detailed, specific evidence that particular terms would identify contractors before withholding under Exemption 4
Adequacy of agency declarations to support Exemption 4 withholdings	CREW: BOP declarations are conclusory and conflate commercial/confidential inquiries; insufficient under Campbell standard	BOP: agency affidavits and examples of market exit/harassment justify withholding	Court: Agency affidavits were too general; summary judgment inappropriate without detailed, specific factual showing; district court may require supplemental affidavits
Whether prior public disclosures waive Exemption 4 for specific terms (public-domain doctrine)	CREW: publicly filed administrative-record materials containing some concentrations/expiry dates mean BOP waived exemption for identical data elsewhere	BOP: provided the previously released pages but contests broader waiver	Remanded: district court must determine whether the exact information withheld is already in the public domain and thus not exempt

Key Cases Cited

U.S. Dep’t of State v. Ray, 502 U.S. 164 (FOIA’s disclosure purpose)
Milner v. Dep’t of Navy, 562 U.S. 562 (FOIA exemptions construed narrowly)
Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356 (confidentiality requires information be customarily kept private)
Pub. Citizen Health Rsch. Grp. v. FDA, 704 F.2d 1280 (commercial information defined by income-producing/operational character)
Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26 (commercial in and of itself standard)
Baker & Hostetler LLP v. U.S. Dep’t of Commerce, 473 F.3d 312 (commercial nature shown by industry competitive data)
Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361 (adjectival modifiers limit exemption scope)
Campbell v. U.S. Dep’t of Justice, 164 F.3d 20 (agency affidavits must provide detailed, specific justification)
Cottone v. Reno, 193 F.3d 550 (public-domain doctrine waives FOIA exemptions)
Powell v. U.S. Bureau of Prisons, 927 F.2d 1239 (remand appropriate when prior public disclosure affects withheld material)