Center for Public Integrity v. U.S. Department of Energy ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
Center for Public Integrity, )
)
Plaintiff, )
)
v. ) Civil No. 1:15-cv-01314 (APM)
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U.S. Department of Energy, )
)
Defendant. )
_________________________________________ )
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
Plaintiff Center for Public Integrity brought this Freedom of Information Act (“FOIA”)
action against Defendant Department of Energy (“DOE”), seeking to compel disclosure of records
concerning DOE’s investigation of Sandia Corporation (“Sandia”) and its lobbying activities.
Sandia is a government contractor that operates the Sandia National Laboratory, a government-
owned nuclear laboratory overseen by DOE. In 2009, certain employees of Sandia and its parent
company, Lockheed Martin Corporation, devised a plan to lobby federal officials to renew
Sandia’s contract with DOE without competitive bidding. That plan, however, was developed and
carried out with the use of taxpayer funds. DOE’s Office of Inspector General investigated
Sandia’s actions and concluded that it had violated federal laws prohibiting the use of taxpayer
dollars for lobbying activities. Sandia eventually reached a civil settlement with the
U.S. Department of Justice.
In response to Plaintiff’s FOIA request, DOE produced some records in full, some in part,
and withheld others in their entirety under certain statutory exemptions. Plaintiff challenges
Defendant’s reliance on those exemptions. Before the court are the parties’ cross-motions for
summary judgment. Defendant contends that it properly withheld information under FOIA
Exemptions 3, 4, 6, 7(C), 7(E), and 7(F), as that information consists of a combination of sensitive
national security information, documents implicating personal privacy interests, as well as several
confidential and legally privileged proprietary business documents. Plaintiff argues that
Defendant’s withholding of responsive records is unjustified.
The Court finds Defendant properly withheld information under Exemptions 3, 7(E), and
7(F), as well as certain information under Exemptions 4, 6, and 7(C). However, the court also
finds that Defendant has not properly justified withholding other information under Exemptions
4, 6, and 7(C). As to that information, the court will not order its disclosure at this time, but will
give Defendant the opportunity to supplement its declarations. Accordingly, the court grants in
part and denies in part Defendant’s Motions for Summary Judgment and denies in part Plaintiff’s
Motion for Summary Judgment.
II. BACKGROUND
A. DOE’s Investigation into Sandia Corporation’s Lobbying Activities
Sandia Corporation (“Sandia”), a wholly-owned subsidiary of Lockheed Martin
Corporation, operates Sandia National Laboratory, which is one of three government-owned
national security nuclear laboratories falling under the auspices of the U.S. Department of Energy
(“DOE”) and its sub-component, the National Nuclear Security Administration (“NNSA”). Sandia
originally contracted with Defendant to operate the nuclear laboratory in 1993. See Def.’s Second
Mot. for Partial Summ. J., ECF No. 26 [hereinafter NNSA Mot.], Ex. 1, ECF No. 26-1 [hereinafter
Eanes Decl.], ¶ 2; Pl.’s Opp’n to Def.’s Mots. for Summ. J., ECF No. 30 [hereinafter Pl.’s Opp’n],
at 2. Sandia was annually paid $2 billion under the contract. Pl.’s Opp’n at 2.
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Sandia’s contract with DOE was set to expire in 2012. In or around 2009, executives from
both Lockheed Martin and Sandia formed an internal team tasked with formulating a lobbying
strategy for obtaining a no-bid contract extension. Id. As part of its strategy, Sandia hired three
lobbying consultants who worked closely with Lockheed and Sandia employees in order to, among
other things, identify specific individuals—including government officials and members of
Congress—to target in an effort to obtain the no-bid extension. Id.
At some point, these lobbying activities came to the attention of DOE’s Office of Inspector
General (“OIG”). Following an investigation, OIG issued a report in November 2014, finding that
Sandia had used taxpayer funds to engage in lobbying activities in violation of federal law. Id. at
2–3; Def.’s First Partial Mot. for Summ. J., ECF No. 22 [hereinafter DOE Mot.], Ex. 2, ECF No.
22-2, at 7–35. On August 20, 2015, Sandia reached an agreement with the U.S. Department of
Justice to pay $4,790,042 to resolve the alleged law violations. Pl.’s Opp’n at 3–4.
B. Plaintiff’s FOIA Request
On November 12, 2014, Plaintiff Center for Public Integrity submitted a FOIA request to
DOE, seeking:
 “A full copy of the Report of Investigation, the Final Report, the Closing
Memo, the Referral Letter, and the Referral Memo for Department of
Energy Office of Inspector General Investigation DOE/IG-0927;” and
 “All records in your custody or under your control that pertain to
Department of Energy Office of Inspector General investigation DOE/IG-
0927, including but not limited to letters, e-mails, memoranda, reports,
appointment calendars, and telephone call logs and any related attachments,
and dated up until the date you process this request.”
Pl’s Opp’n, Ex. 1, ECF No. 30-1, at 1.
OIG subsequently identified a total of 114 documents that were responsive to Plaintiff’s
FOIA request, which it then reviewed for release. DOE Mot. at 3–4. Ultimately, OIG released 71
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documents—27 documents in full, 44 with redactions—and withheld two documents in their
entirety. Id. OIG invoked Exemptions 5, 6, and 7(C) to justify its various redactions and
withholdings.1 Id.
Additionally, OIG forwarded 41 documents contained in the investigative file to the NNSA
for its review prior to release. Id. NNSA, along with Sandia staff and other administrative
agencies, reviewed and ultimately produced 39 documents with redactions. NNSA Mot. at 1–3.
NNSA invoked FOIA Exemptions 3, 4, 6, 7(E), and 7(F) to justify the various redactions. Id.2
After exhausting its administrative remedies, Plaintiff filed this action on August 13, 2015.
Compl., ECF No. 1. The matter is now before the court on the parties’ cross-motions for summary
judgment.
III. STANDARD OF REVIEW
Most FOIA cases are appropriately resolved on motions for summary judgment.
Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). A court
must grant summary judgment “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
A dispute is “genuine” only if a reasonable fact-finder could find for the nonmoving party, and a
fact is “material” only if it is capable of affecting the outcome of litigation. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). “Unlike the review of other agency action that must be
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Plaintiff failed to respond to Defendant’s arguments supporting the invocation of Exemption 5 to withhold drafts of
the OIG Report. Thus, the court will treat those arguments as conceded. See Sykes v. Dudas, 573 F. Supp. 2d 191,
202 (D.D.C. 2008) (“[W]hen a party responds to some but not all arguments raised on a Motion for Summary
Judgment, a court may fairly view the unacknowledged arguments as conceded.”). Moreover, the court is convinced,
in light of the evidence submitted and controlling authority, that Defendant has carried its burden as to those records.
See National Sec. Archive v. CIA, 752 F.3d 460, 462–63 (D.C. Cir. 2014); Arthur Andersen & Co. v. IRS, 679 F.2d
254, 258–59 (D.C. Cir. 1982).
2
Defendant initially withheld certain information from NNSA pursuant to Exemption 5, but produced it after Plaintiff
filed its Opposition. See Def.’s Reply in Supp. of Partial Mots. for Summ. J., ECF No. 33, at 3. Thus, Defendant’s
assertion of Exemption 5 as to those records is no longer before the court.
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upheld if supported by substantial evidence and not arbitrary or capricious, the FOIA expressly
places the burden ‘on the agency to sustain its action’ and directs the district courts to ‘determine
the matter de novo.’” U.S. Dep’t of Justice v. Reporters Comm. for Freedom of Press, 489 U.S.
749, 755 (1989) (quoting 5 U.S.C. § 552(a)(4)(B)).
Summary judgment in a FOIA case may be based solely on information provided in an
agency’s supporting affidavits or declarations if they are “relatively detailed and non-conclusory.”
SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks
omitted). The agency’s affidavits or declarations must “describe the documents and the
justifications for nondisclosure with reasonably specific detail” and “demonstrate that the
information withheld logically falls within the claimed exemption.” Military Audit Project v.
Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Further, they must not be “controverted by either
contrary evidence in the record [or] by evidence of agency bad faith.” Id.; see Beltranena v.
Clinton, 770 F. Supp. 2d 175, 181–82 (D.D.C. 2011). “To successfully challenge an agency’s
showing that it complied with the FOIA, the plaintiff must come forward with ‘specific facts’
demonstrating that there is a genuine issue with respect to whether the agency has improperly
withheld extant agency records.” Span v. U.S. Dep’t of Justice, 696 F. Supp. 2d 113, 119 (D.D.C.
2010) (quoting U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989)).
IV. DISCUSSION
“The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of
a democratic society, needed to check against corruption and to hold the governors accountable to
the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). Because of
FOIA’s critical role in promoting transparency and accountability, “[a]t all times courts must bear
in mind that FOIA mandates a ‘strong presumption in favor of disclosure.’” Nat’l Ass’n of Home
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Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002) (quoting U.S. Dep’t of State v. Ray, 502 U.S.
164, 173 (1991)). FOIA requires that “each agency, upon any request for records which
(i) reasonably describes such records and (ii) is made in accordance with published rules . . . make
the records promptly available to any person,” 5 U.S.C. § 552(a)(3)(A), unless the records fall
within one of nine narrowly construed exemptions, see 5 U.S.C. § 552(b); Vaughn v. Rosen, 484
F.2d 820, 823 (D.C. Cir. 1973). “Ultimately, an agency’s justification for invoking a FOIA
exemption is sufficient if it appears logical or plausible.” Judicial Watch, Inc. v. U.S. Dep’t of
Def., 715 F.3d 937, 941 (D.C. Cir. 2013) (internal quotation marks omitted).
Defendant invokes FOIA Exemptions 3, 4, 6, 7(C), 7(E), and 7(F) to justify its various
redactions. Plaintiff challenges the applicability of the cited exemptions. The court addresses each
of the parties’ disputes below, starting with their contest over Exemption 4.
A. Exemption 4
Exemption 4 permits an agency to withhold “trade secrets and commercial or financial
information [that is] obtained from a person [and is] privileged or confidential.” 5 U.S.C.
§ 552(b)(4). The exemption contains two threshold requirements—the information must be
(1) “obtained from a person” and (2) “commercial or financial.” See Wash. Post Co. v. U.S. Dep’t
of Health & Human Servs., 690 F.2d 252, 266 (D.C. Cir. 1982). If these threshold requirements
are met, then the court must determine if the information is “privileged or confidential.” Id.Here, Plaintiff does not question whether the material withheld pursuant to Exemption 4
was “obtained from a person” or was “commercial or financial.” Rather, it disputes the material’s
confidential or privileged character. See Pl.’s Opp’n at 6–11. The court considers those challenges
separately, as each relates to a different set of documents.
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1. Confidential Business Information
Defendant first seeks to withhold as confidential two categories of material—
(1) “[c]ontract provisions that reveal vendor hourly rates, specific negotiated considerations and/or
terms and conditions reflecting agreement between Sandia and its vendors,” and (2) “slides,
presentations, and other documentary information . . . [that] reveals confidential Sandia business
contract strategy.” NNSA’s Mot. at 14. According to Defendant, such proprietary business
information qualifies for Exemption 4 protection because its disclosure would cause competitive
harm to Sandia and impair the government’s ability to collect similar information in the future. Id.at 15–16. Plaintiff counters that Exemption 4 does not justify withholding such information
because the documents relate to unlawful lobbying activities, which no lawfully abiding Sandia
competitor would adopt—thus negating any concerns regarding unfair competitive advantage—
and which the government readily will be able to acquire in the future through exercise of its police
powers. Pl.’s Opp’n at 8–9.
The Court of Appeals has developed two tests to determine whether information is
“confidential” for purposes of Exemption 4. Which test to apply depends on the manner in which
the government agency obtained the information at issue. When an agency receives the
information by way of a mandatory disclosure, the information is considered confidential for
purposes of FOIA Exemption 4 if disclosure is likely to (1) impair the agency’s ability to obtain
the information in the future or (2) cause substantial harm to the competitive position of the source
of the information. Nat’l Parks Conservation Ass’n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974).
The inquiry is an objective one. See Wash. Post Co., 690 F.2d at 268.
A different test applies, however, when an agency receives information by way of a
voluntary disclosure. In that case, the information is confidential for purposes of Exemption 4 if
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it is “of a kind that would customarily not be released to the public by the person from whom it
was obtained.” Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871, 879
(D.C. Cir. 1992). The parties disagree as to whether Sandia voluntarily submitted the business
information at issue.
a. Was the information submitted voluntarily?
Defendant, for its part, asks the court to apply the more relaxed Critical Mass test because
“the information was turned over to the government, without any legal compulsion on behalf of
the OIG.” NNSA Mot. at 12. Defendant puts forward an affidavit from James Eanes—a Sandia
employee responsible for responding to FOIA requests—stating that Sandia would not “typically”
make the information at issue available to the public and that Sandia provided the “documents to
the OIG without the need of a subpoena, court order, or any warrant.” Eanes Decl. ¶¶ 11, 17.
Accordingly, Defendant argues, the redacted information was submitted voluntarily and the
Critical Mass test governs. NNSA Mot. at 11.
Plaintiff, on the other hand, asserts that Sandia “did not turn over this material voluntarily,
but under duress, after being forced to do so when the government issued a ‘7-day notice letter,’”
Pl.’s Opp’n at 8, in which an NNSA official instructed Sandia’s president to “provide two copies
of all requested documents . . . [or he would] refer the matter to the Office of the Inspector
General.” Pl.’s Opp’n, Ex. C, ECF No. 30-5. Because the NNSA official threatened to refer
Sandia to OIG in the event of non-compliance, Plaintiff argues, the documents were produced as
a result of “government compulsion” and therefore the more stringent National Parks test applies.
Pl.’s Opp’n at 8.
When determining whether information is submitted voluntarily, courts look to the
agency’s “actual legal authority” to compel the documents or information at issue, rather than the
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“parties’ beliefs or intentions” about the agency’s authority to do so. Ctr. for Auto Safety v. Nat’l
Highway Traffic Safety Admin., 244 F.3d 144, 149 (D.C. Cir. 2001). Thus, where an agency
requests information from a regulated entity that it would otherwise have the legal authority to
compel, the resulting productions are involuntary and the National Parks test controls. For
example, in In Defense of Animals v. United States Department of Health and Human Services,
the district court considered whether a private research facility’s responses to a request for
information regarding its financial condition, sent by a federal agency providing financial support
to that facility, were voluntary. The court held that such submissions were involuntary, even
though the letter merely requested production of information, because the agency had the authority
to compel production as a condition for continuing to provide financial support. No. 99-3024,
2001 WL 34871354, at *9 (D.D.C. Sept. 28, 2001). Like the letter in In Defense of Animals, the
so-called seven-day notice letter sent here by NNSA offered Sandia no real choice—Sandia either
could produce the documents “voluntarily” or OIG would compel their production. The very real
specter of government compulsion renders Sandia’s production here involuntary for purposes of
Exemption 4. Accordingly, the National Parks test governs.
b. Was the information confidential under National Parks?
To determine whether information is confidential, the National Parks test requires courts
to evaluate whether disclosure of the withheld information is likely either to: (1) impair the
government’s ability to obtain the necessary information in the future, or (2) cause substantial
harm to the competitive position of the person from whom the information was obtained. 498 F.2d
at 770. Here, as explained below, because the court finds that Defendant has sufficiently
demonstrated that disclosure likely would cause Sandia substantial competitive harm, it need not
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determine whether disclosure would impair the government’s ability to obtain the necessary
information in the future.
In evaluating whether disclosure is likely to result in substantial competitive harm, the
court “need not conduct a sophisticated economic analysis of the likely effects of disclosure.” Pub.
Citizen Health Research Grp. v. Food & Drug Admin., 704 F.2d 1280, 1291 (D.C. Cir. 1983).
While an agency may not rely on conclusory and generalized allegations of harm, it also need not
make an affirmative showing of actual competitive harm. Id. Rather, “evidence revealing actual
competition and the likelihood of substantial competitive injury is sufficient to bring commercial
information within the realm of confidentiality.” Id. (internal quotation marks omitted).
Competitive injury, however, “[is] limited to harm flowing from the affirmative use of proprietary
information by competitors . . . . [and] should not be taken to mean simply any injury to competitive
position, as might flow from customer or employee disgruntlement or from . . . embarrassing
publicity.” Id. at 1291 n.30.
Here, there is no dispute of fact that Sandia “faces actual competition in the bidding
process,” thus satisfying the actual competition requirement. NNSA Mot. at 15. As to the second
element—a likelihood of substantial competitive injury—the Eanes Declaration explains that
disclosing the terms of Sandia’s vendor contracts would “likely cause Sandia competitive
disadvantage with respect to future negotiations with its consultants, and create a likelihood of
substantial competitive injury to Sandia’s ability to negotiate future similar contracts.” Eanes
Decl. ¶ 8. Releasing Sandia’s vendor contracts, he continues, “would reveal how Sandia priced its
hourly rates and structured its terms and conditions during its performance as a government
contractor and would give prospective subcontractors who came into possession of such
information an unfair and inappropriate contracting advantage relative to negotiations with
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Sandia.” Id. ¶ 9. With respect to the slides, presentations, and other strategy documents—the
second group of documents Defendant has withheld—Eanes states that their release “would give
any competitor a clear advantage because they would know [Sandia’s] strategy and analysis on
how they prepare bids or how they evaluate key terms, strategies, or other business related aspects
when formulating a contract with the government.” Id. ¶ 13. More specifically, Eanes asserts that
releasing “key aspects of the company’s considered approach for managing of its business and its
future relationship with the US Government . . . would provide competitors for the [contract] with
NNSA a clear advantage because they would know [Sandia’s] strategy . . . in anticipation of
contract negotiations with the US Government.” Id. ¶ 11. The court finds that these statements
are sufficiently detailed to establish a likelihood of substantial competitive harm caused by
disclosure of those materials. See SafeCard Servs., Inc. v. SEC, 926 F.2d at 1200.
Plaintiff disputes that releasing Sandia’s commercial information would cause competitive
harm. It argues that, because Sandia engaged in a “business relationship with the U.S. government
[that] was illegal,” “one must assume that Sandia’s competitors . . . will not adopt these illegal
methods in the future.” Pl.’s Opp’n at 9. Therefore, Plaintiff maintains that this information, even
if commercial in nature, is useless to Sandia’s competitors and should not be afforded protection
under FOIA. Id.Plaintiff’s argument misses the mark. The court agrees that Exemption 4 cannot be used
to shield illegal business practices under the guise of confidential business information. But that
is not what Defendant seeks to do here. Rather, Defendant invokes Exemption 4 to withhold the
details of a business strategy that would have been legal but for Sandia’s improper use of
government funds to develop and execute that strategy. See NNSA Mot. at 14–16; NNSA Mot.,
Ex. C, ECF No. 27-3; NNSA Mot., Ex. D, ECF No. 27-4. Plaintiff admits as much in its
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Opposition. See Pl.’s Opp’n at 2 (“Instead of investing its own money to chase the new contract,
however, Sandia Corporation paid for the lobbying effort with funds designated for carrying out
its core national security functions. It is this action that the OIG declared unlawful.” (emphasis
added)). Thus, the information that Defendant designated as confidential is not itself unlawful or
the product of inherently illegal activity. In other words, the court can separate Sandia’s bad acts
from the information it seeks to protect.
The court similarly rejects Plaintiff’s contention that Exemption 4 “should only be
extended to contractors whose practices are within the law, and not held up as a shield to protect
lawbreakers from embarrassment.” Id. at 9–10. Plaintiff cites no authority for the proposition that
corporate wrongdoing automatically disqualifies an agency from invoking Exemption 4 on behalf
of a company. Again, Defendant has demonstrated that, if the information at issue—as distinct
from the misconduct itself—was disclosed, that disclosure would likely harm Sandia’s competitive
position with respect to future bids for government contracts and negotiations for consultant
services. On that point, Plaintiff has offered no contrary evidence. Accordingly, the court finds
Defendant properly redacted the vendor agreement information and strategy materials pursuant to
Exemption 4.
2. Privilege
Next, Defendant seeks to withhold a single “email communication between Sandia
managers and Sandia legal counsel” as legally privileged under Exemption 4. NNSA Mot. at 13–
14. Plaintiff retorts that the crime-fraud exception to the privilege applies to the email, and thus
strips it of any confidentiality, because “Sandia’s general counsel played an active role in every
step of the scheme that the inspector general determined to be illegal.” Pl.’s Opp’n at 10.
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“The attorney-client privilege applies only if, inter alia, ‘the communication relates to a
fact of which the attorney was informed . . . by his client . . . for the purpose of securing primarily
either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding.’”
In re Grand Jury, 475 F.3d 1299, 1304 (D.C. Cir. 2007) (alterations in original) (quoting In re
Sealed Case, 737 F.2d 94, 98–99 (D.C. Cir. 1984)). Such communications, however, are not
considered privileged if, among other things, they “are made in furtherance of a crime, fraud, or
other misconduct,” id., or if the party asserting the privilege has previously disclosed the
communications such that they waive the privilege, see In re Kellogg Brown & Root, Inc., 796
F.3d 137, 145 (D.C. Cir. 2015).
Here, Defendant’s declarations fall well short of establishing the attorney-client privilege.
They are entirely conclusory and lack the factual detail needed to decide whether the privilege is
applicable. See Eanes Decl. ¶ 15 (“Sandia identified as both legally privileged and confidential
(business proprietary) information that included communications between Sandia managers and
Sandia legal counsel.”)); NNSA Mot., Ex. 2, ECF No. 26-2 [hereinafter Hamblen Decl.], ¶ 16
(“NNSA also redacted information pursuant to Exemption 4, which exempts from mandatory
disclosure of privileged commercial information.”). For instance, the court cannot determine from
either declaration whether Sandia’s counsel was providing privileged legal services or non-
privileged business advice. Nor can the court say whether the privilege was waived. After all,
Sandia turned over the email in question to OIG. Further, Plaintiff has raised the crime-fraud
exception, but the declarations’ lack of factual detail prevents the court from deciding whether the
exception applies. In sum, the court cannot determine at this time whether the email is privileged.
Additionally, unlike the vendor contracts and strategy information discussed above,
Defendant has made no effort to show a likelihood of competitive harm or impairment of
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government information gathering, as required under National Parks, aside from one wholly
conclusory statement that “[r]elease of such information would damage . . . legitimate Sandia
business interests.” NNSA Mot. at 14. This does not suffice.
Accordingly, Defendant has failed to establish that Exemption 4 applies to the withheld
email communication. The court, however, will not order Defendant to release the email at this
time. Defendant shall be afforded the opportunity to supplement its affidavit to address the
deficiencies identified above.
B. Exemptions 6 and 7(C)
The court now turns to Defendant’s reliance on FOIA Exemptions 6 and 7(C)—which
protect various privacy interests—to withhold names and other identifying information appearing
in the responsive records. The court begins with the redactions for which Defendant invoked both
Exemptions 6 and 7(C), and then addresses the information withheld on the ground of Exemption 6
alone.
1. Exemption 7(C)
Defendant invokes both Exemptions 6 and 7(C) to withhold the names of three categories
of individuals: (1) “all individuals employed by Sandia”; (2) “DOE employees who serve at the
GS-15 level and below”; and (3) “individuals who were interviewed in the course of the OIG’s
inquiry.” DOE Mot. at 8. Because “‘Exemption 7(C) is more protective of privacy than
Exemption 6’ and thus establishes a lower bar for withholding material,” the court need only
consider Defendant’s reliance on Exemption 7(C) for these three categories. See Am. Civil
Liberties Union (ACLU) v. U.S. Dep’t of Justice, 655 F.3d 1, 6 (D.C. Cir. 2011) (quoting U.S.
Dep’t of Defense v. FLRA, 510 U.S. 487, 496 n.6 (1994)).
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Exemption 7(C) protects from disclosure “records or information compiled for law
enforcement purposes, but only to the extent that the production of such law enforcement records
or information . . . could reasonably be expected to constitute an unwarranted invasion of personal
privacy.” 5 U.S.C. § 552(b)(7)(C). To determine whether the release of information would
constitute an “unwarranted invasion of privacy,” the court must balance “the privacy interests that
would be compromised by disclosure against the public interest in release of the requested
information.” Davis v. U.S. Dep’t of Justice, 968 F.2d 1276, 1281 (D.C. Cir. 1992); see also
ACLU, 655 F.3d at 6.
Individuals such as law enforcement personnel, witnesses, informants, and “third parties
who may be mentioned in investigatory files” have “an obvious privacy interest cognizable under
Exemption 7(C) in keeping secret the fact that they were subjects of a law enforcement
investigation.” Nation Magazine, Wash. Bureau v U.S. Customs Serv., 71 F.3d 885, 894 (D.C.
Cir. 1995). Such individuals also have a “second, distinct privacy interest in the contents of the
investigative files.” Citizens for Pub. Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice,
746 F.3d 1082, 1092 (D.C. Cir. 2014). The public disclosure of law enforcement files has the
potential to cause public embarrassment and humiliation, at the very least, and possibly more
severe consequences to reputational and pecuniary interests. Id.To protect these substantial privacy interests, the D.C. Circuit has adopted a “categorical
rule [under Exemption 7(C)] permitting an agency to withhold information identifying private
citizens mentioned in law enforcement records, unless disclosure is necessary in order to confirm
or refute compelling evidence that the agency is engaged in illegal activity.” Schrecker v. U.S.
Dep’t of Justice, 349 F.3d 657, 661 (D.C. Cir. 2003) (internal quotation marks omitted); see also
Spirko v. U.S. Postal Serv., 147 F.3d 992, 999 (D.C. Cir. 1998) (describing the public interest in
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names listed in law enforcement records as “insubstantial unless the requester puts forward
compelling evidence that the agency denying the FOIA request is engaged in illegal activity and
shows that the information sought is necessary in order to confirm or refute that evidence” (citation
omitted) (internal quotation marks omitted)). Here, unlike in many cases, Plaintiff satisfies
Schrecker’s required showing of illegal activity—OIG concluded that Sandia personnel violated
federal law by using taxpayer dollars to conduct lobbying activities—so Defendant cannot rely on
the categorical rule to withhold the names. Nor has Defendant attempted to do so. It did not
invoke the categorical rule and instead determined that the balancing of the public and private
interests tips in favor of non-disclosure. See DOE Mot. at 10–14.
In conducting the public-private balancing, the court is guided primarily by two cases:
Stern v. Federal Bureau of Intelligence, 737 F.2d 84 (D.C. Cir. 1984), and Beck v. United States
Department of Justice, 997 F.2d 1489 (D.C. Cir. 1993). Stern was an appeal of a district court
order requiring the FBI to disclose the names of both “lower-level employee[s]” and a Special
Agent who were implicated in a highly publicized scandal involving illegal surveillance of political
activists and its subsequent cover-up. Stern, 737 F.2d at 92–93. Although the Court of Appeals
observed that the implicated federal employees’ privacy interest was “diminishe[d] . . . because of
the corresponding public interest in knowing how public employees are performing their jobs,” it
also stated that the extent of the public’s interest turned on “the level of responsibility held by a
federal employee, as well as the activity for which such an employee has been censured.” Id. at
92. The court reversed the district court’s disclosure order as to the lower-level employees, but
not the Special Agent. Describing it as a “close case,” the Court of Appeals found that the public
interest in the names of the lower-level employees was diminished because (1) they had only
engaged in negligent, as opposed to intentional, misconduct, and (2) the disclosure of their names
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risked associating them with “serious criminal wrongdoing when, in fact, they were totally cleared
of any such acts.” Id. at 93. It reached the opposite conclusion as to the Special Agent, however,
because “[h]e was a higher-level official than the other two employees, and he participated
knowingly in the cover-up.” Id. “The public has a great interest,” the Court held, “in being
enlightened about that type of malfeasance by this senior FBI official . . . an interest that is not
outweighed by his own interest in personal privacy.” Id. at 94.
Nine years later, in Beck, the Court of Appeals narrowed the scope of Stern. At issue in
Beck was a district court decision permitting an agency to withhold records of complaints against
two Drug Enforcement Agency agents, the existence of which the agency refused to confirm or
deny. 997 F.2d at 1491. In affirming the district court’s decision, the Court observed that the
“identity of one or two individual relatively low-level government wrongdoers, released in
isolation, does not provide information about the agency’s own conduct.” Id. at 1493. The court
also distinguished Stern, stating that “[i]t suffices to note that the public interest identified in Stern
was based on the widespread knowledge that certain FBI employees had been censured for their
participation in a notorious criminal investigation. Here, by contrast, there is no evidence, let alone
any public knowledge, that wrongdoing occurred.” Id. at 1494. See also Jefferson v. Dep’t of
Justice, Office of Professional Responsibility, 284 F.3d 172, 180 (D.C. Cir. 2002) (stating that
Beck “indicated the limits of Stern”).
This court distills two key lessons from Stern and Beck. First, the public interest varies
depending on the individual government employee involved in the wrongdoing and therefore the
agency must make an individualized assessment of the public interest as to each employee.
Second, that individualized assessment is fact-bound. The factors that courts must consider in
weighing the public interest include: (1) the seniority of the employee; (2) the employee’s relative
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degree of culpability; (3) the seriousness of the misconduct; and (4) the level of public awareness
of the employee’s identity and her actions.
Defendant relies on the declaration of Adrienne Martin—an information specialist with
OIG—to support its invocation of Exemption 7(C). See DOE Mot., Ex. 1, ECF No. 22-1
[hereinafter Martin Decl.]. The court has evaluated the Martin Declaration in light of Stern and
Beck and concludes that it does not reflect the individualized, fact-bound assessment of the public
interest demanded by those cases. The Martin Declaration concedes that there is a legitimate
public interest in learning about Sandia’s unlawful lobbying activities. See Martin Decl. ¶ 21
(acknowledging that “the public has a legitimate interest in knowing that a corporate entity has
taken a certain action”).3 Although it makes that concession, the declaration does not then weigh
the public interest in light of the facts pertinent to the individual employees who engaged in the
illegal lobbying efforts. See id. (making the blanket assertion that the public has “a much lower
interest in knowing the identities of those corporate employees who took those actions”). Instead,
it simply groups the employees into three broad categories that tell the court little about the conduct
of the individual employees. Such an approach is improper. See Stern, 737 F.2d at 91 (“Because
the myriad of considerations involved in the Exemption 7(C) balance defy rigid
compartmentalization, per se rules of nondisclosure based upon the type of document requested,
the type of individual involved, or the type of activity inquired into, are generally disfavored.”).
The first category in the Martin Declaration—“all individuals employed by Sandia”—
illustrates the problem with Defendant’s approach. Within that broad grouping, the court cannot
discern an individual employee’s position within Sandia’s corporate structure or her relative role
or culpability in the lobbying activities. As defined, the category likely includes the architects of
3
Notably, Defendant does not argue that there is no public interest or the public interest is diminished because Sandia
is a government contractor operating a government-owned facility, as opposed to a government agency.
18
the lobbying scheme, as well as lower-level administrative assistants who scheduled meetings or
forwarded emails, but did not knowingly participate in any wrongdoing. No meaningful weighing
of the public interest is possible from such an indistinct grouping of employees.
The same is true of the third category—“those who were interviewed during the course of
[OIG’s] inquiry.” Martin Decl. ¶ 18. It is apparent from the OIG Report that OIG interviewed
Sandia officials directly involved in devising and implementing the lobbying plan. See, e.g.,
Martin Decl., Ex. 2, ECF No. 22-2, at 17–20, 23. Lumping such officials together, possibly with
lower-level, less culpable individuals, makes an individualized determination of the public interest
impossible. Moreover, the Martin Declaration makes no effort to explain why the names of high-
level Sandia officials were withheld, yet the names of the three consultants Sandia hired were
disclosed. See id. at 17–19; Pl.’s Opp’n, Ex. A, ECF No. 30-3, at 8. One would think that the
public interest in the release of the names of Sandia officials involved in wrongdoing would be at
least as significant as the names of the consultants that they hired, especially because those
consultants may not have known that taxpayer dollars were used to pay them. The Martin
Declaration does not resolve that tension.
The justification for withholding names falling within Defendant’s second category—
“DOE employees who serve at the GS-15 level and below”—presents a closer call. The public
interest in the identity of those employees is diminished because of their lower rank in the
government hierarchy. See Beck, 997 F.2d at 1493. Yet, the Martin Declaration ultimately falls
short in showing that those employees’ privacy interest outweighs the public interest, too, because
it does not affirmatively state that no GS-15 level or below employee participated in the unlawful
activities or, to the extent any one of them did, what role that person played or her degree of
culpability. The declaration does state that this group of employees engaged in “purely ministerial
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actions,” Martin Decl. ¶ 17, but without some representation that the agency has conducted an
individualized assessment of each employee’s conduct, the court cannot be confident that
Exemption 7(C) applies to all employees in this category. The court can envision a scenario in
which the privacy interest of a lower-level employee who engages in intentional criminal acts is
outweighed by the strong public interest in knowing such employee’s identity. That may not be
this case. But, as discussed, Defendant has not provided enough evidence for the court to make
such a determination at this time.4
Accordingly, the court finds that the Martin Declaration, in its current form, does not
sufficiently support the withholding of employees’ names under Exemption 7(C). The court will
not, however, order their disclosure at this time. Instead, Defendant will be given an opportunity
to supplement its declaration to show, through an individualized assessment of each employee, the
private interest in non-disclosure outweighs the public interest in disclosure. In doing so,
Defendant shall take into account the factors discussed above. This is not to say that Defendant
may not group employees together when appropriate. Such a grouping, however, must be
accompanied by an attestation that the declarant has considered the individual characteristics of
each employee within the group and that the facts common to those employees, such as their level
of employment and relative roles in Sandia’s illegal lobbying activities, tilt the balancing in favor
of non-disclosure.
2. Exemption 6 Redactions
Turning to Exemption 6, Defendant grouped those persons into two categories: (1) “low-
level contractor employees who were not directly involved in the underlying facts and issues that
4
The court’s ruling does not extend to the OIG employees who, as the Martin Declaration describes, “were performing
investigative activities.” See Martin Decl. ¶ 17. The court agrees with Defendant that there is no relevant public
interest in the identities of OIG investigators, and therefore concludes that Defendant’s withholding of those names is
appropriate.
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were the subject of the investigation”; and (2) “individuals who were identified as part of Sandia’s
strategy to extend their government contract” but for whom there is “no indication that any of them
were willing participants” in Sandia’s lobbying efforts. NNSA Mot. at 20–21.
Under Exemption 6, agencies may withhold “personnel and medical files and similar files
the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”
5 U.S.C. § 552(b)(6). To determine whether a disclosure would constitute a “clearly unwarranted
invasion of personal privacy,” courts must conduct the private-public balancing of interests that
applies under Exemption 7(C). See Beck, 997 F.2d at 1491 (stating that the “same standard” is
applicable to both Exemption 6 and 7(C)). The public interest in disclosure, as in the 7(C) context,
is “the citizens’ right to be informed about ‘what their government is up to.’” Id.First, there is little or no public interest in disclosing the names of government officials that
Sandia had targeted for lobbying—making their names public would not inform citizens what their
government is up to. After all, the subject of the OIG investigation was the conduct of Sandia
personnel, not those that they targeted. Nor is there any suggestion that the targets engaged in any
wrongdoing. Plaintiff maintains that disclosing the identities of the lobbying targets would aid the
public’s understanding of “Sandia’s effort.” See Pl.’s Opp’n at 15. But even if that were so, such
an interest is, at best, extremely narrow and, when balanced against the serious privacy concern
faced by a government official unwittingly associated with unlawful lobbying, it simply does not
justify disclosure. See Stern, 737 F.2d at 93.
For the same reason, the court also finds that Defendant has sufficiently justified invoking
Exemption 6 to withhold the names of “low-level contractor employees who were not directly
involved in the underlying facts and issues that were the subject of the investigation.” NNSA Mot.
at 20. Plaintiff maintains that Defendant has not provided sufficient evidence demonstrating that
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these low-level employees did not participate in the lobbying scheme, regardless of their relative
seniority, and that there is a strong public interest in disclosure because those individuals were
“involved in the email chain [that] was privy” to the Sandia lobbying scheme. Pl.’s Opp’n at 13–
14. The court disagrees. Defendant here relies on the declaration of Christina Hamblen—an
information specialist working at NNSA—which states that “low-level contractor employees” did
not engage in any wrongdoing—they simply “forward[ed] emails, coordinat[ed] meetings, [were]
copied on emails, or [] were third party contractors who had consulting contracts with Sandia.”
Hamblen Decl. ¶ 18. In that respect, the Hamblen Declaration contains a level of detail about
lower-level employee conduct that is lacking in the Martin Declaration. As a result, the Hamblen
Declaration satisfies the requirements of Stern and Beck, whereas the Martin Declaration does not.
Compare id., with Martin Decl. ¶ 17. In short, Defendant has justified its assertion of Exemption 6
to the court’s satisfaction.
C. Exemptions 3, 7(E), and 7(F)
Last, Defendant relies on Exemptions 3, 7(E), and 7(F) to withhold information implicating
national security concerns. See NNSA Mot. at 8, 22–24. Plaintiff, for its part, attacks these
justifications as “vague, hypothetical, and conclusory.” Pl.’s Opp’n at 16.
Exemption 3 allows for non-disclosure of records that are “specifically exempted from
disclosure by statute” provided that such statute either “(A) [requires withholding] in such a
manner as to leave no discretion on the issue,” or “(B) establishes particular criteria for withholding
or refers to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3); see also Senate of
the Commonwealth of Puerto Rico v. United States U.S. Dep’t of Justice, 823 F.2d 574, 582 (D.C.
Cir. 1987). Exemption 7(E) allows an agency to withhold information compiled for law
enforcement purposes if its release “would disclose techniques and procedures for law
22
enforcement investigations or prosecutions, or would disclose guidelines for law enforcement
investigations or prosecutions if such disclosure could reasonably be expected to risk
circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). Exemption 7(F) protects law enforcement
information that “could reasonably be expected to endanger the life or physical safety of any
individual.” Id. § 552(b)(7)(F).
The Hamblen Declaration explains Defendant’s rationale for invoking these exemptions.
See Hamblen Decl. ¶¶ 9–10 (“The portions of [the documents] withheld pursuant to Exemption 3”
may not be disclosed under 42 U.S.C. § 2168(a)(1)(B)(C) because they “pertain to security
measures for the physical protection of . . . Sandia National Laboratory.”); id. at ¶ 22 (“The
information withheld pursuant to Exemption 7(E) relates to techniques about detecting missile
attacks . . . [and] also pertains to matters of national security that would give potential for harm to
the nation by terrorists.”); id. at ¶ 23 (“The information withheld pursuant to 7(F) is related to
vulnerabilities and areas that need improvement regarding certain sensitive governmental
programs that relate to protection of nuclear materials, detection and sensing foreign nuclear
weapon proliferation and nuclear defense risks.”).
The court finds that the Hamblen Declaration provides a logical and plausible basis for
Defendant to withhold sensitive national security information pursuant to Exemptions 3, 7(E), and
7(F). Judicial Watch, Inc., 715 F.3d at 941. As the Court of Appeals has made clear, the judiciary
generally defers to executive branch decisions to withhold information on national security
grounds. See Center for Nat. Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 927 (D.C. Cir.
2003). Plaintiff has given the court no reason to deviate from that practice here. Accordingly, the
court will grant judgment in favor of Defendant regarding the information it withheld pursuant to
Exemptions 3, 7(E), and 7(F).
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D. Segregability
Finally, the court addresses Defendant’s segregability determination. A district court must
evaluate segregability even where, as here, the requester has not challenged it. See Sussman v.
U.S. Marshals Serv., 494 F.3d1106, 1116 (D.C. Cir. 2007) (“If the district court approves [a]
withholding without . . . a finding [as to segregability], remand is required even if the requester
did not raise the issue of segregability before the court.”).5
Because “the focus of FOIA is information, not documents . . . an agency cannot justify
withholding an entire document simply by showing that it contains some exempt material.” Mead
Data Cent., Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977). FOIA therefore
requires that “[a]ny reasonably segregable portion of [the] record shall be provided to any person
requesting such record after deletion of the portions which are exempt.” 5 U.S.C. § 552(b). An
agency must provide a “detailed justification” and not just make “conclusory statements” to
support its segregability determination. Mead Data Cent., 566 F.2d at 261. Agencies, however,
“are entitled to a presumption that they complied with the obligation to disclose reasonably
segregable material,” which can be overcome by contrary evidence produced by the requester.
Sussman, 494 F.3d at 1117.
Here, the Hamblen Declaration merely states that “[a]fter extensive review of the
documents at issue . . . there is no further non-exempt information that can be reasonably
segregated and released without revealing exempt information.” Hamblen Decl. ¶ 24.
Notwithstanding the deference owed to an agency’s determination of segregability, the court finds
the Hamblen Declaration inadequate. It merely states, without “detailed justification” and in
5
The court here only addresses Defendant’s segregability determination concerning the documents that were properly
withheld pursuant to Exemptions 3, 4, 6, 7(E), and 7(F), as described in the Hamblen Declaration. The court will
address Defendant’s segregability determination with respect to the remaining documents, as necessary, after
Defendant is given an opportunity to supplement its declarations.
24
“conclusory” fashion, that no responsive documents are segregable. That may be so, but the court
needs more information before it is satisfied that the agency has carried out its duty to disclose the
reasonably segregable portion of the responsive documents. Thus, Defendant is directed to
consider the segregability of those documents and provide a sufficiently “detailed justification”
regarding its ultimate segregability determination. Mead Data Cent., 566 F.2d at 261.
V. CONCLUSION AND ORDER
For the reasons set forth above, Defendant’s Motions for Summary Judgment are granted
in part and denied in part and Plaintiff’s Motion for Summary Judgment is denied in part.
If Defendant wishes to supplement its declarations to address the deficiencies identified in
this Memorandum Opinion, then it shall do so no later than 30 days from this date. Within seven
days thereafter, the parties shall file a Joint Status Report indicating whether another round of
summary judgment briefing will be required in light of the supplemental evidence and, if so,
proposing a schedule.
Dated: January 17, 2017 Amit P. Mehta
United States District Judge
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