Butler v. U.S. Dep't of Labor

316 F.Supp.3d 330

Sheila Darlene BUTLER, Plaintiff,

v.UNITED STATES DEPARTMENT OF LABOR, et al., Defendants.

Case No. 16-cv-1115 (CRC)

United States District Court, District of Columbia.

Signed July 26, 2018

Sharon Yvette Eubanks, Bordas & Bordas PLLC, McLean, VA, for Plaintiff.

William Mark Nebeker, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

CHRISTOPHER R COOPER, United States District Judge

Plaintiff Sheila Butler's husband tragically perished in a fire while working at an Ohio natural gas facility. Seeking evidence for a wrongful death action against the operators of the facility, Ms. Butler lodged a Freedom of Information Act request with the Department of Labor's Occupational Safety and Health Administration ("OSHA") for records related to its investigation of the incident. The Labor Department produced hundreds of documents in response to Butler's request, but withheld or redacted others based on a number of FOIA exemptions.

In this lawsuit, Butler mainly challenges the Department's withholding of three categories of records. First , OSHA obtained documents during its investigation from Mr. Butler's employer, Buffalo Gap Instrumentation and Electrical Company, and the facility's owner, Caiman Energy.¹ After both companies designated certain of those documents as confidential business information, the Department withheld them from Ms. Butler under FOIA Exemption 4, which shields trade secrets and other proprietary commercial information from disclosure. Butler contends that the disputed records do not meet the requirements of that exemption. Second , Butler objects to the Department's withholding, under Exemption 7(C), of the names and addresses of witnesses who provided statements to OSHA during its investigation. Finally , Butler challenges the withholding of the witness statements themselves pursuant to Exemption 7(D).

The parties have filed cross motions for summary judgment. As explained below, the Court will grant the Department's motion (and deny Butler's), except as to one document that it appears the Department should have released in redacted form rather than withheld entirely.

I. Legal Standard

The Court can award summary judgment to an agency if it "proves that it has fully discharged its obligations under FOIA, after the underlying facts and inferences to be drawn from them are construed in the light most favorable to the FOIA requester." Tushnet v. ICE, 246 F.Supp.3d 422, 431 (D.D.C. 2017). An agency must adequately justify any withholdings it makes under FOIA's exemptions from disclosure. Exemptions are construed narrowly and the agency bears the burden of establishing that every withholding is justified. See, e.g., DiBacco v. U.S. Army, 795 F.3d 178, 183 (D.C. Cir. 2015).

II. Analysis

The Court will begin with the Department's assertion of Exemption 4 to withhold documents designated by Buffalo Gap and Caiman Energy as confidential. It will then turn to the materials from OSHA's investigative interviews that were withheld under Exemptions 7(C) and 7(D).

A. Exemption 4

FOIA Exemption 4 prohibits agencies from disclosing "privileged or confidential" "trade secrets and commercial or financial information" obtained from third parties. 5 U.S.C. § 552(b)(4). The level of protection afforded to such information for purposes of Exemption 4 depends on whether it was submitted to the government voluntarily or not. Information submitted voluntarily is subject to greater protection from disclosure than information that was compelled by the government. See Critical Mass Energy Project v. Nuclear Regulatory Com'n, 975 F.2d 871, 878 (D.C. Cir. 1992). Here, Buffalo Gap and Caiman Energy were required to produce documents to OSHA in connection with its investigation. See First Plick Decl. ¶ 39. As a result, the protection of the information at issue is more limited. Under the test laid out by the D.C. Circuit in National Parks and Conservation Ass'n v. Morton, information compelled by the government can only be withheld under Exemption 4 if disclosure would likely (1) impair the government's ability to obtain 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 765, 770 (D.C. Cir. 1974). The Department argues that the second prong applies to the documents it withheld under Exemption 4, so the question is whether disclosure is likely to cause substantial harm to the competitive position of Caiman Energy or Buffalo Gap. The Department withheld two categories of documents pursuant to Exemption 4.

1. Lockout/Tagout Procedures

The first category consists of forms and training materials related to Caiman Energy's "Lockout/Tagout" procedures—safety protocols designed to ensure that industrial equipment is disabled while it is being serviced. (The fire that killed Mr. Butler apparently started while he was working on a piece of equipment at the Caiman Energy facility). Agencies seeking to avoid the disclosure of information under the competitive injury prong of the National Parks test must show a likelihood of substantial competitive injury if the information were disclosed. 498 F.2d at 770. The burden is therefore on the Department to show that Caiman Energy would likely suffer substantial competitive injury if it were forced to disclose the company's Lockout/Tagout procedures. Courts generally defer to an agency's prediction of competitive harm from disclosure. United Technologies Corp. v. U.S. Dep't of Defense, 601 F.3d 557, 563 (D.C. Cir. 2010).

The Department has filed a declaration by Richard D. Moncrief, President and Chief Operating Officer of Caiman Energy, attesting that the release of the Lockout/Tagout procedures would likely harm Caiman Energy's competitive standing for several reasons. To start with, the procedures include information about how, when, and why equipment is taken out of service, including the length and frequency of lockouts and other maintenance activities. Moncrief Decl. ¶ 3. According to Mr. Moncrief, this information could be used to deduce Caiman Energy's "expenses, operations downtime, and techniques for maintaining equipment." Id. Additionally, Moncrief says, the Lockout/Tagout procedures could be used to learn how Caiman Energy trains employees with respect to this equipment. Id. And because Caiman Energy had to expend "considerable effort and money to develop" the Lockout/Tagout procedures and related training materials, it would harm Caiman Energy's competitive standing if its competitors could obtain that information for free. Id.; Def.'s Reply at 7.

Ms. Butler does not meaningfully dispute the competitive harms asserted by Mr. Moncreif. She argues instead that the Lockout/Tagout procedures are not protected by Exemption 4 because they were adopted to comply with OSHA's published safety regulations related to the use of hazardous equipment. Pl.'s Cross-Mot. Summ. J. at 11, citing 29 C.F.R. 1910.147. But just because the Department's regulations and standards are known to the public does not mean the methods by which companies meet those standards are public knowledge as well. In fact, as the Department points out, "[t]here is an entire industry of service providers who assist companies in developing OSHA-compliant procedures." Def.'s Reply at 7 (noting one such provider). In light of the uncontested facts presented in the Moncrief declaration, the Court finds that the release of the Lockout/Tagout materials would likely cause substantial harm to Caiman Energy's competitive position. The Department's assertion of Exemption 4 to withhold those materials was therefore proper.

2. Master Service Agreement: Appendix C

The second set of documents that the Department withheld under Exemption 4 comprise "Appendix C" to a Master Service Agreement between Buffalo Gap and Caiman Energy that governed Buffalo Gap's work at the facility. The Department attests that each of the appendix's four pages contain pricing, rental rates, and cost information for the various services and equipment that Buffalo Gap provided under the agreement, the release of which would cause Buffalo Gap competitive harm. Second Plick Decl. ¶¶ 10–13. Butler does not dispute that Buffalo Gap's pricing and cost data are covered by Exemption 4. She argues, rather, that she is entitled to the appendix with the proprietary data redacted. See Pl.'s Cross-Mot. Summ. J. at 4. The Court agrees. Butler does not say how the appendix would be meaningful without the pricing and cost data. But nor does the Department explain how Buffalo Gap is likely to be harmed by the release of the document in redacted form. See Second Plick Decl. ¶¶ 10–13 (disclosing Appendix C would allow competitors to use pricing information to estimate Buffalo Gap's expenses and undercut their prices when bidding for contracts and job offers). Because FOIA requires that "any reasonably segregable portion of a record shall be provided" to a requester, the Court finds that the Department has not met its burden to establish the applicability of Exemption 4 to the entire document. 5 U.S.C. § 552(b). The Department must therefore release Appendix C to Ms. Butler after redacting all exempt data.

B. Exemption 7(C)

Next, Butler challenges the Department's decision to withhold the names and addresses of witnesses who spoke with OSHA during its investigation of Mr. Butler's death. The Department based the withholding on Exemption 7(C), which protects "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ... (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C).²

As the threshold, Butler argues that the Department cannot rely on Exemption 7 because that exemption applies only to records or information compiled for "law enforcement purposes," 5 U.S.C. § 552(b)(7), and the Department...