Besson v. U.S. Dep't of Commerce

480 F.Supp.3d 105

David H. BESSON, Plaintiff,

v.UNITED STATES DEPARTMENT OF COMMERCE, Defendant.

Case No. 18-cv-02527 (APM)

United States District Court, District of Columbia.

Signed August 5, 2020

David H. Besson, Los Angeles, CA, pro se.

Marsha Wellknown Yee, U.S. Attorney's Office for the District of Columbia, Matthew Evan Kahn, U.S. Department of Justice Fraud Section, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

Amit P. Mehta, United States District Court Judge

I. INTRODUCTION

In May 2018, Plaintiff David H. Besson filed a Freedom of Information Act ("FOIA") request with Defendant U.S. Department of Commerce, seeking records of a Cooperative Research and Development Agreement ("CRADA") between the National Institute of Standards and Technology, a subsidiary of Defendant, and Ligado Networks, a private telecommunications company. In response to Plaintiff's FOIA request, Defendant produced the CRADA with several portions redacted. Citing FOIA Exemption 4, Defendant withheld the names of Ligado employees, the Statement of Work, and parts of the Collaborator Information section of the CRADA. Defendant also now asserts that the names of Ligado employees were properly withheld based on Exemption 6.

Now before the court are the parties’ cross-motions for summary judgment. After considering the full record and the parties’ legal arguments, the court finds that Defendant appropriately invoked Exemption 4 to withhold the funding and technical equipment contributions Ligado made to the project, but not as to the names of Ligado employees. Defendant also improperly withheld the employees names under Exemption 6. Additionally, there remains a genuine dispute of material fact as to the public availability of portions of the CRADA's Statement of Work. Thus, the court grants the parties’ motions in part and denies them in part.

II. BACKGROUND

A. Factual Background

Plaintiff filed a request for information under FOIA in May 2018, seeking "a copy of the Cooperative Research and Development Agreement between [the National Institute of Standards and Technology "NIST"] and Ligado Networks." Compl., ECF No. 1 [hereinafter Compl.], Ex. 1, ECF No. 1-1, at 1. A CRADA is a mechanism through which government laboratories cooperate with the private sector on research and development projects. See Def.’s Renewed Mot. for Summ. J., ECF No. 28 [hereinafter Def.’s Renewed Mot.], Decl. of Catherine S. Fletcher, ECF No. 28-2 [hereinafter Fletcher Decl.], ¶ 4. Ligado entered into an agreement with NIST on or around July 8, 2016, to work on a project called "Measuring Impacts of Adjacent B and LTE Signals of GPS." See id. ¶ 18. In June 2018, NIST produced the CRADA with certain information redacted. See id. ¶ 11. Specifically, NIST withheld the names of Ligado Networks employees under Exemption 4. See id. ¶ 17. NIST also invoked Exemption 4 to withhold the CRADA's Statement of Work section, and portions of the Collaborator Information section detailing the financial and technical support Ligado gave to NIST as part of the project. See id. ¶ 11. Plaintiff appealed NIST's withholdings, which the agency rejected. See id. ¶ 14.

B. Procedural Background

Plaintiff, proceeding pro se, filed this action on October 22, 2018, see Compl., and amended his complaint two weeks later, see Am. Compl., ECF No. 4. Plaintiff challenges all redactions to the CRADA, arguing that he "has a right of access to the entirety of the requested information ..., and there is no legal basis for defendant's denial of such access." See id. ¶ 9.

Both parties then moved for summary judgment. See Def.’s Mot. For Summ. J., ECF No. 14; Pl.’s Cross-Mot. For Summ. J., ECF No. 17. After briefing closed, the Supreme Court decided Food Marketing Institute v. Argus Leader Media , ––– U.S. ––––, 139 S. Ct. 2356, 204 L.Ed.2d 742 (2019), which clarified the standard for confidentiality under Exemption 4. The Court held that information is "confidential" for purposes of Exemption 4, at least where it is "both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy." Id. at 2366. This court then denied the parties’ original motions for summary judgment to afford them the opportunity to reassert their arguments in light of Food Marketing Institute . See Order, ECF No. 26 [hereinafter Order]. The court also encouraged Defendant to re-evaluate its withholding of Ligado employee names, observing that courts in this jurisdiction ordinarily have not found employee names to be "confidential" for purposes of Exemption 4. Id. at 2.

In November 2019, Defendant filed a Renewed Motion for Summary Judgment. See generally Def.’s Renewed Mot. Defendant argues that its withholdings under Exemption 4, including employee names, are consistent with the holding in Food Marketing Institute , and that its redaction of Ligado employee names is also valid under an exemption not previously cited, Exemption 6. Shortly thereafter, Plaintiff filed a Cross-Motion for Summary Judgment. See Pl.’s Cross-Mot. for Summ. J. & Opp'n to Def.’s Renewed Mot., ECF No. 32 [hereinafter Pl.’s Renewed Mot.]. Plaintiff objects to Defendant's argument that all redacted information is confidential by introducing evidence that he claims demonstrates some of the withheld information is public information. Plaintiff also asserts a public interest in knowing the names of the Ligado employees. These motions are now ripe for consideration.

III. LEGAL STANDARD

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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "Unlike the review of other agency action that must be 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, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (quoting 5 U.S.C. § 552(a)(4)(B) ).

An agency bears the burden of showing that it properly withheld materials pursuant to a statutory exemption. Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice , 746 F.3d 1082, 1088 (D.C. Cir. 2014). An agency "may carry its burden ... by submitting sufficiently detailed affidavits or declarations, a Vaughn index of the withheld documents, or both, to demonstrate that the government has analyzed carefully any material withheld and provided sufficient information as to the applicability of an exemption." Brennan Ctr. for Justice v. Dep't of State , 296 F. Supp. 3d 73, 80 (D.D.C. 2017). "If the agency's affidavits provide specific information sufficient to place the documents within the exemption category, if this information is not contradicted in the record, and if there is no evidence ... of agency bad faith, then summary judgment is appropriate without in camera review of the documents." ACLU v. U.S. Dep't of Def. , 628 F.3d 612, 626 (D.C. Cir. 2011) (internal quotation marks and citation omitted).

IV. DISCUSSION

The parties’ renewed cross-motions for summary judgment present two issues: (1) whether Defendant properly withheld the names of Ligado Networks employees, the Statement of Work section, and other collaborator information in the CRADA pursuant to Exemption 4; and (2) whether Defendant properly withheld the names of Ligado employees pursuant to Exemption 6.

A. Exemption 4

The court first considers the parties’ dispute concerning Defendant's withholding of information pursuant to Exemption 4. Exemption 4 permits an agency to withhold "trade secrets and commercial or financial information," which are "obtained from a person and privileged or confidential." 5 U.S.C. § 552(b)(4). Thus, there are three requirements for information to qualify for non-disclosure under Exemption 4: (1) it must be either trade secrets, commercial information, or financial information; (2) it must be obtained from a person; and (3) it must be either privileged or confidential. Here, there is no dispute that the withheld information was "obtained from a person," and that it is not a trade secret or privileged. Thus, the two questions before the court are: (1) whether the information is commercial or financial; and (2), if so, whether it is confidential.

1. Whether the withheld information is "commercial or financial"

The terms "financial" and "commercial" as used in FOIA "are to be given their ordinary meanings." Nat'l Ass'n of Home Builders v. Norton , 309 F.3d 26, 38 (D.C. Cir. 2002) (quoting Pub. Citizen Health Research Grp. v. Food & Drug Admin. , 704 F.2d 1280, 1290 (D.C. Cir. 1983) (internal quotations marks omitted)). This means that "information is commercial under this exemption if, in and of itself, it serves a commercial function or is of a commercial nature." Id. (internal quotation marks and citation omitted). Moreover, "the plain language of Exemption 4 covers all financial information, despite the apparent commercial focus of the Exemption." Wash. Post Co. v. U.S. Dep't of Health & Human Servs. , 690 F.2d 252, 266 (D.C. Cir. 1982).

a) Names of Ligado employees

Defendant redacted the identities of all Ligado employees found in the CRADA, claiming their names qualify as "commercial" information. This included the names of Ligado's principal investigator and five project team members. See Fletcher. Decl. ¶ 25. Defendant additionally withheld the name of the...