Soghoian v. Office of Management and Budget
932 F. Supp. 2d 167
D.D.C.2013Background
- Soghoian submitted a June 2011 FOIA request to OMB seeking documents on the graduated response system, limited to records created between December 1, 2009 and June 22, 2011.
- OMB released 189 pages and withheld 16 pages in full under Exemption 5, with additional redactions under Exemptions 4–6 in September 2011.
- Plaintiff challenged only the Exemption 4 and Exemption 5 withholdings; searches and non-responsive material were not challenged.
- Administrative appeal followed in October 2011; in December 2011 OMB released more material and continued to withhold one page under Exemption 5 and portions under Exemptions 4, 5, and 6.
- The disputed materials focus on drafts of a Memorandum of Understanding (MoU) among RIAA/MPAA members and ISPs, and related IPEC/OMB discussions.
- The court granted summary judgment for OMB on Exemptions 4 and 5, finding the withheld material was commercial/confidential and properly pre-decisional/deliberative, with no required further disclosure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exemption 4: whether MoU drafts are commercial and confidential | Soghoian contends drafts may not be confidential or commercial. | OMB shows drafts were provided by private parties with commercial interest and not publicly released; information is confidential. | Yes; information commercial and confidential; Exemption 4 upheld. |
| Whether information was voluntarily submitted and thus entitled to Exemption 4 confidentiality | Submissions were not voluntary but quid pro quo and thus not confidential. | Submissions were voluntary; no informal mandate; confidentiality applies. | Yes; information provided voluntarily and confidential. |
| Exemption 5: whether documents about the MoU, JSP, and France email are pre-decisional/deliberative | IPEC’s policy role is narrow; pre-decisional status not satisfied; no final decision linkage. | Documents are pre-decisional and deliberative as part of a definable decision-making process toward policy. | Yes; documents are pre-decisional and deliberative; Exemption 5 applies. |
| Whether the JSP and MoU-related materials contain non-segregable factual material | Factual material could be segregated and disclosed. | Any factual material is inextricably intertwined with deliberation or not readily segregable. | No; court found no reasonably segregable factual material; exemptions upheld. |
Key Cases Cited
- National Parks & Conservation Ass'n v. Morton, 498 F.2d 765 (D.C. Cir. 1974) (Exemption 4 requires commercial or financial information to be confidential)
- Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871 (D.C. Cir. 1992) (confidentiality depending on voluntary vs mandatory submission (Critical Mass II))
- Center for Auto Safety v. Nat'l Highway Traffic Safety Admin., 244 F.3d 144 (D.C. Cir. 2001) (customary treatment of information; provider's custom controls Exemption 4)
- Judicial Watch, Inc. v. FDA, 449 F.3d 141 (D.C. Cir. 2006) (deliberative process privilege applies to pre-decisional and deliberative materials)
- NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (Supreme Court 1975) (pre-decisional materials and weighing of agency decisions)
- Coastal States Gas Corp. v. DOE, 617 F.2d 854 (D.C. Cir. 1980) (deliberative process purpose and protection for pre-decisional materials)