American Small Business League v. Department of Defense

Filing 58

ORDER ON 44 [ 47 CROSS-MOTIONS FOR SUMMARY JUDGMENT. Signed by Judge William Alsup. (whalc2, COURT STAFF) (Filed on 3/8/2019)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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No. C 18-01979 WHA

AMERICAN SMALL BUSINESS LEAGUE,

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For the Northern District of California

United States District Court

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Plaintiff,
v.

ORDER ON CROSSMOTIONS FOR
SUMMARY JUDGMENT

DEPARTMENT OF DEFENSE and
DEPARTMENT OF JUSTICE,

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Defendants.
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INTRODUCTION
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In this FOIA action, both sides move for summary judgment. For the reasons stated
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below, both motions are GRANTED IN PART and DENIED IN PART.
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STATEMENT
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Plaintiff American Small Business League is a non-profit organization that promotes the
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interests of small businesses. To that end, it focuses public attention on emerging issues for
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small businesses, reviews federal and state government policies and procedures to determine the
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potential impact on small businesses, and monitors federal contracts that are awarded to large
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corporations rather than to small businesses (Dkt. No. 1 ¶ 4).
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The Small Business Act mandates that the federal government encourage government
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contractors to subcontract to “small disadvantaged businesses” (“SDB”). Under regulations
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subsequently enacted to implement SDB goals, federal government contractors must submit a
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subcontracting plan as part of the bidding process for a potential contract award. And,

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defendant Department of Defense monitors contractor compliance with SDB goals (Buffler

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Decl. ¶¶ 4–9).

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The Act normally requires prime contractors to submit “Individual Subcontracting

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Plans” for each contract to show how government contracts and subcontracts are awarded to

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small businesses. But in 1990, Congress passed the Test Program, thereby allowing certain

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large defense contractors to instead submit a single annual “Comprehensive Subcontracting

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Plan” for an entire plant, division, or company to identify all subcontract amounts awarded to

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small businesses on government contracts. Test Program participants must submit their

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Comprehensive Subcontracting Plan to the DOD each year for review and approval (id. ¶¶ 5, 8).
This action is related to a prior FOIA case, American Small Business League v.

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For the Northern District of California

United States District Court

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Department of Defense, Case No. C 14-02166 WHA (“ASBL I”). There, in August 2013, the

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same plaintiff requested Sikorsky’s 2013 Comprehensive Small Business Subcontracting Plan

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from the DOD pursuant to FOIA. The agency initially denied plaintiff’s request on the basis

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that the requested document contained confidential commercial information and thus fell under

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FOIA’s exemption under Section 552(b)(4). In March 2018, after years of litigation and a trip

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to our court of appeals, the government released the document over Sikorsky’s objections (with

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the exception of limited redactions for private personal information under Section 552(b)(6)).

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As relevant to the instant motions, plaintiff now seeks GE Aviation’s 2014

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Comprehensive Subcontracting Plan. It also seeks all documents transmitted during ASBL I

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between the DOD or defendant Department of Justice and Lockheed Martin Corporation

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(including Sikorsky Aircraft Corporation, a subsidiary of Lockheed) regarding the 2013 FOIA

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request, ASBL, Lloyd Chapman, the Comprehensive Subcontracting Plan Test Program

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(“CSPTP”), and the Mentor-Protégé program (Dkt. No. 47 at 7).

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Since plaintiff filed the instant action in March 2018, the government has produced

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responsive documents (along with Vaughn indexes), subject to redactions (Dkt. No. 29 ¶ 2).

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The government declared those redacted materials exempt under 5 U.S.C. §§ 552(b)(3)–(6).

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The parties now cross-move for summary judgment on the government’s redactions.

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The government moves to confirm the determinations of exemption (Dkt. No. 44). Plaintiff
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challenges the government’s assertion of Exemptions 3–5 as follows (Dkt. No. 47 at 8; Olson

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Decl., Exh. D):1

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(1) Redactions to GE’s 2014 Comprehensive Subcontracting Plan pursuant to

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Exemption 4;

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(2) Redactions to contractor past performance evaluations and Comprehensive

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Subcontracting Plans pursuant to Exemption 3 and 4; and

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(3) Redactions to communications between the government and Sikorsky’s counsel

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during ASBL I pursuant to Exemption 5.

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briefing and oral argument.

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For the Northern District of California

United States District Court

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Plaintiff also challenges the adequacy of the government’s searches. This order follows full

ANALYSIS

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FOIA’s purpose is to let us see what our government has been up to by “provid[ing]

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public access to official information ‘shielded unnecessarily’ from public view and

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establish[ing] a ‘judicially enforceable public right to secure such information from possibly

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unwilling official hands.’ ” Lahr v. Nat’l Transp. Safety Bd., 569 F.3d 964, 973 (9th Cir. 2009)

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(quoting Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976)). FOIA thus “mandates a policy

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of broad disclosure of government documents.” Church of Scientology of California v. U.S.

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Dep’t of Army, 611 F.2d 738, 741 (9th Cir. 1979), overruled on other grounds by Animal Legal

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Def. Fund v. U.S. Food & Drug Admin., 836 F.3d 987 (9th Cir. 2016).

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“When a request is made, an agency may withhold a document, or portions thereof, only

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if the material at issue falls within one of the nine statutory exemptions found in [Section]

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552(b).” Maricopa Audubon Soc. v. U.S. Forest Serv., 108 F.3d 1082, 1085 (9th Cir. 1997).

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“These exemptions are explicitly exclusive and must be narrowly construed in light of FOIA’s

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dominant objective of disclosure, not secrecy.” Ibid. (citations and quotations omitted).

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“FOIA’s strong presumption in favor of disclosure places the burden on the government to

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show that an exemption properly applies to the records it seeks to withhold.” Hamdan v. U.S.

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Dep’t of Justice, 797 F.3d 759, 772 (9th Cir. 2015).

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Plaintiff does not challenge the Exemption 6 redactions.

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Here, the questions presented are whether the government (1) made adequate searches,

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and (2) has properly determined that the information at issue is exempt under Sections

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552(b)(3), (4), and/or (5). This order addresses each issue in turn.

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1.

ADEQUACY OF SEARCHES.

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The parties dispute whether the government’s searches regarding documents transmitted

Under FOIA, an agency responding to a request must “demonstrate that it has conducted a

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search reasonably calculated to uncover all relevant documents.” Lahr, 569 F.3d at 986

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(quoting Zemansky v. EPA, 767 F.2d 569, 571 (9th Cir. 1985)). “This showing may be made by

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‘reasonably detailed, nonconclusory affidavits submitted in good faith.’ ” Ibid. “In evaluating

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For the Northern District of California

between the DOJ, DOD, and Lockheed were reasonable and adequate (see Dkt. Nos. 29 ¶ 5).

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United States District Court

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the sufficiency of an agency’s search, ‘the issue to be resolved is not whether there might exist

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any other documents possibly responsive to the request, but rather whether the search for those

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documents was adequate.’ ” Id. at 987 (quoting Zemansky v. EPA, 767 F.2d 569, 571 (9th Cir.

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1985)). The government argues it conducted a reasonable search for relevant documents. This

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order agrees.

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Here, the DOD and DOJ submitted declarations attesting to reasonable searches made

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pursuant to the parties’ stipulated search plan for the relevant documents (see Dkt. No. 29 ¶ 5).

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Specifically, Mark Herrington (the DOD’s associate deputy general counsel who oversees the

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DOD’s FOIA litigation) explains how he and Janice Buffler (then associate director of the DOD

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Office of Small Business Programs) searched their files for documents transmitted between the

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DOD and Lockheed or Sikorsky for relevant documents. He further explains how the DOD

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searched the files of Tatia Bellamy-Vaughn and Lux Vazquez of the Defense Contract

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Management Agency, and Terry Sutherland — all pursuant to the stipulated agreement

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(Herrington Decl. ¶¶ 4–6). Moreover, each of the attorneys at the DOJ involved in the ASBL I

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litigation also submitted declarations explaining how they searched their emails for responsive

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documents (Friday Decl. ¶ 6; Kravitz Decl. ¶ 8; London Decl. ¶ 12; Simmons Decl. ¶ 8).

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Plaintiff counters that after notifying the government of an “unexplained gap” in the
FOIA response, the government produced two more responsive documents not previously
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identified (Dkt. No. 47 at 10). The government explained that it had missed those documents

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due to an error “in the de-duplicating process” and an accidental deletion by one of the

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government’s attorneys (Olson Decl., Exh. Y). The government also volunteered to conduct

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additional searches “as quickly as [it] can” to check for any other potential errors made during

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the de-duplicating process. Plaintiff further asserts that when it flagged an additional defect in

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the government’s production, the government produced another document “inadvertently

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marked as a duplicate” one day before plaintiff’s brief was due (but just two days after plaintiff

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raised the issue) (ibid.). The government again volunteered to run another search. Plaintiff now

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complains of other potential gaps in the government’s FOIA response and wonders aloud
whether there are other documents the government’s searches potentially missed (Dkt. No. 47 at

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For the Northern District of California

United States District Court

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10–11). As such, it requests that the government (both the DOJ and DOD) be ordered to redo

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the entire search, specifically for “deleted” responsive records.

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“[T]he failure to produce or identify a few isolated documents cannot by itself prove the

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searches inadequate.” Lahr, 569 F.3d at 988. As our court of appeals has repeatedly stated,

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plaintiff was “entitled to a reasonable search for records, not a perfect one. And a reasonable

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search is what [it] got.” Hamdan v. U.S. Dep’t of Justice, 797 F.3d 759, 772 (9th Cir. 2015).

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Here, the government readily acknowledged certain missing documents once notified by

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plaintiff and promptly took steps to address the errors, including voluntarily redoing its search

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for documents from custodians located within the United States Attorney’s Office and offering

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ways of building in more time for plaintiff to respond if it felt prejudiced by the timing (Olson

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Decl., Exh. Y; London Suppl. Decl. ¶¶ 3–5; Second Herrington Decl. ¶¶ 8–9). This order finds

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that the government’s submitted declarations establish that its searches were reasonably

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calculated to uncover all relevant documents. Plaintiff’s speculative claim of potentially

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missing documents fail to create a genuine dispute. And, to the extent there remains doubt

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regarding missing documents, the government has already volunteered to run relevant searches

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again (Dkt. No. 55 at 2). Accordingly, plaintiff’s motion for summary judgment as to the

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adequacy of the government’s search is DENIED and the government’s motion is GRANTED.

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2.

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Section 552(b)(3) exempts records protected from disclosure by other federal statutes as

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EXEMPTION 3.

follows:
(3) specifically exempted from disclosure by statute (other than section
552b of this title), if that statute—

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(A)(i) requires that the matters be withheld from the public in such
a manner as to leave no discretion on the issue; or
(ii) establishes particular criteria for withholding or refers to
particular types of matters to be withheld; and
(B) if enacted after the date of enactment of the OPEN FOIA Act
of 2009, specifically cites to this paragraph.

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In determining whether information has been properly withheld under Exemption 3, “the
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and [2] that the material being withheld falls within the exempting statute’s coverage.”
For the Northern District of California

United States District Court

government must show [1] that the statute on which it relies qualifies as an exempting statute
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Cal-Almond, Inc. v. U.S. Dep’t of Agric., 960 F.2d 105, 108 (9th Cir. 1992) (citing C.I.A. v.
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Sims, 471 U.S. 159, 167 (1985)). “Whether information is exempt from disclosure is a
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Congressional determination, not an administrative one.” Lessner v. U.S. Dep’t of Commerce,
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827 F.2d 1333, 1335 (9th Cir. 1987) (citing Irons & Sears v. Dann, 606 F.2d 1215, 1220
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(D.C.Cir. 1979), cert. denied, 444 U.S. 1075 (1980)).
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Here, the government redacted details about Lockheed’s actual subcontracting
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performance and compliance as alleged “source selection information” under Exemption 3 and
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the Procurement Integrity Act (“PIA”).
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The PIA prohibits disclosure of certain information related to the contractor bidding and
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source selection process, as follows:
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(a) Prohibition on disclosing procurement information.—
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(1) In general. — Except as provided by law, a person . . . shall not
knowingly disclose contractor bid or proposal information or source
selection information before the award of a Federal agency
procurement contract to which the information relates.

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The PIA further defines “source selection information” with the following catch-all provision:

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(7) Source selection information. — The term “source selection
information” means any of the following information prepared for use by
a Federal agency to evaluate a bid or proposal to enter into a Federal

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agency procurement contract, if that information previously has not been
made available to the public or disclosed publicly:

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(J) Other information marked as “source selection information”
based on a case-by-case determination by the head of the agency, the
head’s designee, or the contracting officer that its disclosure would
jeopardize the integrity or successful completion of the Federal
agency procurement to which the information relates.

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41 U.S.C. §§ 2102(a)(1), 2101(7)(J) (emphasis added).
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The parties dispute whether the PIA qualifies as an exempting statute within the
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meaning of Exemption 3 and, if so, whether the information at issue falls within the statutory
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definition. This order need not decide whether the PIA is an exempting statute because, even
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assuming that it is, the government has not sufficiently shown that the redacted information
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Both sides agree that the PIA’s non-disclosure provision applies to information created
For the Northern District of California

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constitutes “source selection information” within the PIA’s definition.
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“before the award of a Federal agency procurement contract to which the information relates”
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(see Dkt. Nos. 47 at 16; 48 at 7). 41 U.S.C. § 2102(a)(1) (emphasis added). The dispute
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therefore boils down to the precise scope of the provision, as discussed below.
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As an initial matter, the DOD failed to individually mark the redacted information as
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“source selection information,” as explicitly required under the PIA (Dkt. No. 48 at 7). See 41
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U.S.C. § 2101(7)(J) (“information marked as ‘source selection information’ based on a
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case-by-case determination”) (emphasis added). In strictly applying the PIA, this would be
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sufficient grounds to find that Exemption 3 does not apply. The government still contends,
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however, that contractor past performance evaluations are “by their nature” source selection
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information treated confidentially by the DOD and therefore fall within the PIA’s definition
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(Dkt. No. 48 at 7; Buffler Decl. ¶ 13). The government also cites Federal Acquisition
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Regulation 9.105-2, which exempts “past performance reviews” from disclosure after the award
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of a contract (Dkt. No. 48 at 7).
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To determine the scope of the PIA, “we look first at the language of the statute.”
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Lessner v. U.S. Dep’t of Commerce, 827 F.2d 1333, 1337 (9th Cir. 1987). To repeat, the PIA
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provides that a present or former official of the federal government “shall not knowingly
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disclose . . . selection information before the award of a Federal agency procurement contract to
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which the information relates.” 41 U.S.C. § 2102(a)(1) (emphasis added). The statute

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elsewhere defines the types of documents that constitute “source selection information” that

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may not be knowingly disclosed. See id. § 2101(7). The definition of “source selection

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information” includes “information prepared for use by a Federal agency to evaluate a bid.”

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Ibid. (emphasis added).

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Here, the details of Lockheed’s actual subcontracting performance and compliance

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relate to contracts already awarded to Lockheed. The government contends that post-contract

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performance evaluations play an informative role in awarding future procurement bids and

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therefore treats all performance evaluations as confidential “source selection information”
(Buffler Decl. ¶¶ 11, 13). In other words, according to the government, “[a]ll evaluations have

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For the Northern District of California

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the unique characteristic of always being pre-decisional in nature” and thus fall within the

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purview of the PIA (id. ¶ 14).

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The government’s broad assertion that it can withhold the redacted information

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effectively ad infinitum, however, eviscerates any distinction between pre- and post-award of a

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contract — a distinction the PIA clearly contemplates — thereby rendering the statutory

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language “before the award” meaningless. Nor would such a blanket definition be “information

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marked as ‘source selection information’ based on a case-by-case determination” under Section

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2101(7)(J). See Legal and Safety Employer Research, Inc. v. U.S. Dep’t of the Army, No. C 01-

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748 WBS/JFM, 2001 WL 34098652, at *4 (E.D. Cal. May 4, 2001) (Judge William Shubb).

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That is, the record does not include any reference to any specific pre-award contract to which

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the information at issue applies. Instead, the current record shows that the government applied

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Section 2101(7)(J) generally — stating simply “Lockheed is a regular competitor for Federal

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contracts” and speculating that release of its past performance details “could” affect the source

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selection process — rather than on a case-by-case basis, as the PIA requires (see Dkt. No. 48 at

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7; Buffler Suppl. Decl. ¶ 4). Moreover, nothing in the record suggests that the post-contract

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performance evaluations were specifically “prepared for use” by the government for the

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purpose of evaluating a specific bid or proposal to enter into a contract. See 41 U.S.C. §

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2101(7). Rather, the requested information, on this record, seems to simply be evaluations

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completed during the performance of a contract.

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Based on the foregoing — and in light of our court of appeals’ exhortation that

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“[b]ecause FOIA is meant to promote disclosure, its exemptions are interpreted narrowly” —

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this order finds that the information related to Lockheed’s past performance in connection with

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already-awarded contracts fall outside the scope of the PIA. Sierra Club, Inc. v. United States

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Fish & Wildlife Serv., 911 F.3d 967, 978 (9th Cir. 2018) (citing Assembly of Cal. v. U.S. Dep’t

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of Commerce, 968 F.2d 916, 920 (9th Cir. 1992)). Accordingly, plaintiff’s motion for summary

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judgment as to Exemption 3 is GRANTED and the government’s motion is DENIED.
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For the Northern District of California

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EXEMPTION 4.

Section 552(b)(4) exempts from disclosure “(1) commercial and financial information,

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(2) obtained from a person or by the government, (3) that is privileged or confidential.” GC

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Micro Corp. v. Def. Logistics Agency, 33 F.3d 1109, 1112 (9th Cir. 1994), overruled on other

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grounds by Animal Legal Def. Fund v. U.S. Food & Drug Admin., 836 F.3d 987 (9th Cir. 2016).

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“[C]ommercial or financial matter is ‘confidential’ for purposes of the exemption if disclosure

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of the information is likely to have either of the following effects: (1) to impair the

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Government’s ability to obtain necessary information in the future; or (2) to cause substantial

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harm to the competitive position of the person from whom the information was obtained.” Id. at

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1112. To satisfy the second “competitive harm” prong, the party resisting disclosure need not

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show actual competitive harm. Rather, that party need only show: (a) “actual competition in

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the relevant market,” and (b) “a likelihood of substantial competitive injury if the information

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were released.” Lion Raisins Inc. v. U.S. Dep’t of Agriculture, 354 F.3d 1072, 1079 (9th Cir.

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2004) (citing GC Micro, 33 F.3d at 1113).

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A genuine issue of material fact exists where the parties submit “competing declarations

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concerning the potential competitive effect of releasing” the information at issue. See Animal

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Legal Def. Fund v. U.S. Food & Drug Admin., 839 F.3d 750, 751 (9th Cir. 2016). “[I]f there

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are genuine issues of material fact in a FOIA case, the district court should proceed to a bench

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trial or adversary hearing.” Animal Legal Def. Fund, 836 F.3d at 990.
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Here, the government redacted details related to Lockheed and GE’s small business

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subcontracting relationships, strategies, and goals (Dkt. No. 44 at 12). Specifically, the

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government redacted details in Lockheed’s 2014–2016 Comprehensive Subcontracting Plan

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(“CSP”) and communications between the DOD and Lockheed regarding Lockheed’s Test

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Program participation (Dkt. No. 44 at 15), e.g., percentage goals and corresponding dollar

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values for subcontracting, Lockheed and Sikorsky’s past subcontracting performance, and

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Sikorsky’s specific targeted industries (Raheb Aff. ¶¶ 22, 37; Crawford Aff. ¶¶ 19, 27–28). It

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further redacted details in GE’s 2014 CSP, e.g., lists of subcontractors and the amount of money

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GE awards them, GE’s past performance data, and specific plans “to develop certain categories

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For the Northern District of California

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of suppliers” (Clever Decl. ¶¶ 4, 7, 10; Nahatis Decl. ¶ 9).
First, the government contends that disclosure of this information would impair its

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information-gathering ability, as disclosure would allegedly deter contractors from candidly

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submitting small business information. This, the government asserts, would limit its decision-

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making capacity — noting that these companies are “already taking steps to include less

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information in” the subcontracting plans (Clever Decl. ¶ 6; Raheb Decl. ¶ 59; Crawford Decl. ¶

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42). Plaintiff counters with its own declaration by William Shook, an alleged government

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contracts expert, who states that because these companies’ businesses rely heavily upon federal

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contracts, and because the plans are mandatory, “noncompliance with the requirements for the

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submission, negotiation, and performance of a small business subcontracting plan is not an

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option if [contractors] want to do business with the U.S. government” (Shook Decl. ¶ 6).

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Second, the government further argues that disclosure would cause substantial

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competitive harm. In support, it submits declarations by GE, Lockheed, and Sikorsky

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representatives “identifying the entities with which [the companies] compete[] for government

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defense contracts” (see Raheb Decl. ¶ 26; Crawford ¶ 25; Nahatis ¶ 7). Am. Small Bus. League

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v. Dep’t of Def., 674 F. App’x 675, 676 (9th Cir. 2017). These representatives also “aver[] that

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those entities could use the redacted information to gain a significant competitive advantage.”

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Ibid. For example, they claim they could lose suppliers to its competitors, allow competitors to

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learn of and adopt their subcontracting programs at a lower expense, and/or enable competitors
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to counter perceived weaknesses in their program in their own proposals (Clever Decl. ¶¶ 5, 6;

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Raheb Aff. ¶¶ 14, 29; Crawford Aff. ¶¶ 13, 27; Dkt. No. 44 at 16).

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Plaintiff argues, inter alia, that the redacted information could not provide competitors

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with an advantage because the plans contain lists of company-wide value of subcontracts with

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particular subcontractors, rather than by specific contract (Shook Decl. ¶ 8(a)).

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This order finds that issues of material fact exist as to Exemption 4. As in ASBL I, the

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government submitted declarations from the companies’ representatives “(1) identifying the

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entities with which Sikorsky competes for government defense contracts and (2) averring that

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those entities could use the redacted information to gain a significant competitive advantage
over Sikorsky.” Am. Small Bus. League, 674 F. App’x at 676 (9th Cir. 2017). “Nothing more is

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For the Northern District of California

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required to gain protection from disclosure under Exemption 4.” Ibid.

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Although the undersigned in ASBL I found the Sikorsky declaration too conclusory to be

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given any substantial weight (as plaintiff asserts in the instant case), our court of appeals held it

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sufficient to “at least create[] a genuine issue of fact as to whether most of its redactions

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qualified for Exemption 4.” Ibid.

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So too here. As in ASBL I, the parties have submitted competing declarations as to

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whether disclosure of the requested information would cause competitive harm. Moreover,

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even though the government in ASBL I eventually reversed course (following the second denial

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of summary judgment) after determining that Sikorsky’s representative Martha Crawford could

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not provide any facts showing a likelihood of substantial competitive harm, the issues there

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related specifically to the 2013 plan and the staleness of the information contained within the

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2013 plan (Olson Decl., Exh. C). Here, in contrast, the plans at issue are more recent

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(2014–2016) and involve information as recent as June 2018 (Second Herrington Decl. ¶ 11).

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Additionally, the parties have submitted competing declarations as to whether disclosure would

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impede the government’s information-gathering ability.

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The instant case presents issues of material facts as to the propriety of the government’s

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redactions pursuant to Exemption 4. Accordingly, both sides’ cross-motions for summary

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judgment as to Exemption 4 are DENIED.
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4.

EXEMPTION 5.

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Section 552(b)(5) protects from disclosure “interagency or intra-agency memorandums

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or letters which would not be available by law to a party other than an agency in litigation with

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the agency.” Under Exemption 5, information may be withheld if (1) its source is a government

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agency, and (2) it “fall[s] within the ambit of a privilege against discovery under judicial

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standards that would govern litigation against the agency that holds it.” Dep’t of Interior v.

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Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001). “This exemption has been

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interpreted as coextensive with all civil discovery privileges.” Sierra Club, 911 F.3d at 978

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(citing NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975)). “In light of the strong policy
of the FOIA that the public is entitled to know what its government is doing and why,

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Exemption 5 is to be applied as narrowly as consistent with efficient Government operation.”

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Lahr, 569 F.3d at 979 (quoting Maricopa, 108 F.3d at 1093).

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Here, the government seeks to withhold communications (i.e., documents transmitted)

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between the government and Sikorsky during ASBL I under Exemption 5. It argues that those

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communications, which the government contends qualify as “intra-agency” pursuant to the

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“common interest” doctrine, are protected by attorney-client and work product privileges.

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The common interest doctrine creates an exception to the rule on waiver — i.e.,

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privileged information disclosed to a non-party sharing a common interest in litigation remains

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protected. See United States v. Zolin, 809 F.2d 1411, 1417 (9th Cir. 1987), overruled on other

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grounds by United States v. Jose, 131 F.3d 1325 (9th Cir. 1997); United States v. Gonzalez, 669

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F.3d 974, 978 (9th Cir. 2012). The government argues that the communications at issue were

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made under a joint litigation strategy to withhold information under Exemption 4. This order

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holds that the communications among allies made through a common interest arrangement in

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litigation are protected from disclosure for purposes of Exemption 5, provided, of course, that

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all of the prerequisites for establishing the “privilege” are met.

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In Department of Interior v. Klamath Water Users Protective Association, 532 U.S. 1

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(2001), the Supreme Court of the United States held that an agency’s communications with

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Indian Tribes addressing the Tribes’ interest in governmental allocation of water rights were not
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“inter-agency or intra-agency” within the scope of Exemption 5. There, the agency relied on

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the “consultant corollary” doctrine (which treats documents prepared for an agency by an

3

outside consultant as an “intra-agency” memorandum) in arguing that their communications

4

were “intra-agency” for purposes of Exemption 5 and thus protected by the deliberative process

5

privilege. This was especially so, the agency argued, given the government’s trust obligation

6

towards the Tribes and potential erosion of candor in tribal communications. Id. at 11.

7

In rejecting the consultant corollary doctrine as applied in Klamath, the Supreme Court

8

explained that despite those real concerns, the agency “ignore[d] the first condition of

9

Exemption 5, that the communication be ‘intra-agency or inter-agency,’ ” and that there was
“no textual justification for draining the first condition of independent vitality.” Id. at 12. The

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Supreme Court further noted that typically exempted consultant communications did not

12

involve any self-interest by the “consultant” — a scenario which the Supreme Court stated

13

“may be enough like the agency’s own personnel to justify calling their communications ‘intra-

14

agency.’ ” Ibid. On the contrary, the Tribes “necessarily communicate[d] with the [agency]

15

with their own, albeit entirely legitimate, interests in mind” and further represented “self-

16

advoca[cy] at the expense of others.” Ibid.

17

While neither the Supreme Court nor our court of appeals has squarely addressed this

18

issue, the United States Court of Appeals for the Fourth Circuit in Hunton & Williams v. United

19

States Department of Justice, 590 F.3d 272 (4th Cir. 2010), applied the common interest

20

doctrine to satisfy Exemption 5’s threshold requirement where communications involved a non-

21

agency. There, counsel representing a plaintiff in an earlier patent infringement case — and in

22

which the DOJ intervened — filed a FOIA request for communications made between the DOJ

23

and the defendant (RIM) in the patent case. RIM, a Blackberry manufacturer, had solicited the

24

DOJ’s intervention in seeking to overturn a temporary injunction limiting BlackBerry

25

manufacturing, as the injunction would have interfered with the federal government’s heavy

26

BlackBerry use. The agency argued that the common interest communications were exempt

27

from FOIA disclosure. The appellate court agreed, holding that “[b]ecause the common interest

28

doctrine requires the agency to determine that the public interest and the litigation partner’s
13

1

interest have converged, communications between the agency and its partner can be understood

2

as ‘intra-agency’ for purposes of Exemption 5.” Id. at 280.

3

In so holding, the appellate court explained that the “clear thrust” of Exemption 5 was

4

“to ensure that FOIA does not deprive the government of the work-product and attorney-client

5

protections otherwise available to it in litigation.” Id. at 278 (citing Nat’l Labor Relations Bd.

6

v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975)). It reasoned that to hold otherwise would

7

“allow adverse private litigants to use FOIA to claim this sort of tactical advantage against the

8

government” and thus “would run counter to the Exemption’s goal.” Ibid.

9

The appellate court further discussed the interplay between the common interest doctrine
and the Supreme Court’s treatment of the “consultant corollary” doctrine in Klamath. The

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appellate court believed its view was consistent with Klamath, where that holding “did not

12

impact the very different situation” in Hunton where the agency and outside party “share[d] a

13

unitary interest in achieving a litigative outcome and result.” Id. at 279. Rather, the outside

14

party in Hunton, the appellate court stated, “in a limited sense becomes a part of the enterprise

15

that the agency is carrying out” and thus subsides “the danger of self-advocacy at the expense of

16

others.” Id. at 280, 287 (quoting Klamath, 532 U.S. at 12).

17

So too here. Just as in Hunton, privileged documents shared between the government

18

and Sikorsky pursuant to a common interest ordinarily would remain protected in civil

19

proceedings. The same protection should be afforded in the FOIA context if the government

20

and Sikorsky shared a joint defense agreement. As our court of appeals has stated, Exemption 5

21

“has been interpreted as coextensive with all civil discovery privileges.” Sierra Club, 911 F.3d

22

at 978. And, as the United States Court of Appeals for the Fourth Circuit explained, “FOIA

23

does not strip the government of its civil discovery privileges” and should not “allow adverse

24

private litigants to [gain a] tactical advantage against the government.” Hunton, 590 F.3d at

25

274, 278. As such, this order finds that communications between the government and Sikorsky

26

during ASBL I concerning a joint litigation strategy were “intra-agency” for the purposes of

27

Exemption 5.

28
14

1

Moreover, the circumstances here differ from those in Lucaj v. Federal Bureau of

2

Investigation, 852 F.3d 541 (6th Cir. 2017), where the United States Court of Appeals for the

3

Sixth Circuit, in strictly reading Exemption 5’s threshold requirement, rejected the common

4

interest doctrine’s application to Exemption 5. There, the plaintiff requested information

5

related to an FBI investigation into him pursuant to FOIA. Id. at 543. The appellate court

6

rejected the FBI’s attempt to withhold, under Exemption 5 and the common interest doctrine,

7

“requests for assistance” documents (which included information such as legal theories of the

8

case) sent by the DOJ to two foreign government entities, holding that the communications

9

were not “inter-agency.” Id. at 544–45. The documents’ recipients in Lucaj, unlike here, did
not share any common litigation strategy. Rather, the foreign government entities at most

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served as a source of information in an FBI investigation.2

12

Plaintiff further contends that the common interest doctrine does not apply here, where

13

(as plaintiff asserts) — unlike in Hunton, where the DOJ had its own genuine interest in

14

reversing the injunction — ASBL I was driven primarily by Sikorsky’s self-interest in

15

withholding the information, with the government simply obliging (Dkt. No. 51 at 12). Thus,

16

plaintiff argues, Klamath dictates that the communications at issue fall outside the scope of

17

Exemption 5.

18

This, however, misses Hunton’s main point that the common interest doctrine, as

19

applied to Exemption 5 under these circumstances, is “simply a matter of evenhandedness.”

20

Hunton, 590 F.3d at 278. That is, adverse private litigants should be disallowed from exploiting

21

a FOIA loophole to access otherwise privileged information. Even in Hunton, the appellate

22

court noted that the non-agency party acted in its own interest in seeking a partnership with the

23

DOJ. Id. at 287. To hold self-interest as negating a common litigation interest in this context,

24

however, “would eviscerate the government’s discovery privileges, since anyone who joins

25

forces with the government in litigation will benefit if the partnership is successful.” Ibid. An

26
27
28

2
This order similarly finds plaintiff’s reliance on Elec. Frontier Found. v. Office of Dir. of Nat’l
Intelligence, No. C 08-01023 JSW, 2009 WL 3061975 (N.D. Cal. Sept. 24, 2009) (Judge Jeffrey White), aff’d
in part, vacated in part, rev’d in part sub nom. Elec. Frontier Found. v. Office of Dir. of Nat’l Intelligence, 595
F.3d 949 (9th Cir. 2010), unavailing.

15

1

attempt to arbitrarily define the level of “self-interest” tolerable under Exemption 5 would

2

“have no logical stopping point short of crippling the government's discovery privileges.” Ibid.3

3

While this order finds that the common interest doctrine applies to Exemption 5, it does

4

not blindly bless the government’s mere invocation of a common interest. “Documents

5

exchanged before a common interest agreement is established are not protected from

6

disclosure.” Id. at 285. “Thus, a proper assessment of the applicability of the common interest

7

doctrine in this case requires a determination of the point in time” when the government decided

8

to partner with Sikorsky in pursuing the Exemption 4 redactions and when the partnership

9

ended. Ibid.
In ASBL I, there were obvious moments of divergent interests between the government

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10

and Sikorsky, as most readily demonstrated by the government’s disclosures throughout that

12

litigation. Moreover, the government and Sikorsky waited until September 2017 to enter into a

13

formal joint defense agreement and withdrew from the agreement just a month later in October

14

2017 (Dkt. No. 44 at 19; Olson Decl., Exh. B). Yet the government seeks to withhold

15

documents dating back to November 2014 and as recently as March 2018.

16

While a joint strategy agreement is not required to be reduced to writing, it must actually

17

have been made. Hunton, 590 F.3d at 285, 287; United States v. Gonzalez, 669 F.3d 974, 980

18

(9th Cir. 2012). The government’s Vaughn index Exemption 5 entries simply state that the

19

information at issue involved, for example, “a discussion between Co-Defendants’ counsel

20

regarding legal strategy for proposed redactions” and therefore does not, by itself, sufficiently

21

demonstrate a common interest (see Olson Decl., Exh. D). As in Hunton, “the record in this

22

case presents the sort of features that underscore the need for watchfulness where the common

23

interest doctrine is sought as a means to avoid FOIA’s disclosure requirements.” Hunton, 590

24

F.3d at 286. “For the doctrine to apply, an agency must show that it had agreed to help another

25
26
27
28

3

Plaintiff further argues that the government failed to satisfy the FOIA Improvements Act of 2016,
which requires that an agency show that (1) it “reasonably foresees that disclosure would harm an interest
protected by an exemption described in” Section 552(b); or (2) “disclosure is prohibited by law.” 5 U.S.C. §
552(a)(8)(A). This order finds that the government’s assertion that circumvention of traditional discovery rules
through FOIA would significantly impact its “ability to conduct complex and multi-faceted litigation” (as
recognized in Hunton) sufficient for the purposes Section 552(a)(8)(A) (see Dkt. No. 48 at 20).

16

1

party prevail on its legal claims at the time of the communications at issue because doing so was

2

in the public interest.” Id. at 274. “[M]ere ‘indicia’ of joint strategy as of a particular point in

3

time are insufficient to demonstrate that a common interest agreement ha[d] been formed.” Id.

4

at 285. The appellate court in Hunton further observed that,

5

In this regard, it is significant if communications were initiated by the
private party, if the bulk of the communications came from a private party,
and if there are sparse indications that the government had come to terms
with the public interest at stake in the case. The purposes and initiatives
of the private party are especially important. . . . In short, there are a
number of items in the record suggesting that DOJ may not have decided
to partner with RIM in the BlackBerry litigation much before November
2005. The fact that DOJ later concluded it shared RIM’s interest does not
protect communications between the two before that decision was made.
An agreement to hear what RIM had to say and to keep what it heard
confidential must not be confused with a conclusion that the public
interest required taking RIM’s side. . . . What FOIA requires is not that the
government invariably lose in disclosure disputes, but that its claims be
carefully evaluated. The analysis we set forth combines a recognition of
the government’s right to partner with those who share its legal interests
with the judicial skepticism that FOIA demands.

6
7
8
9

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10

12
13

Id. at 286–87. With the foregoing principles in mind, the government shall release all
14
communications that were not legitimately made pursuant to a joint defense agreement (unless
15
protected by another FOIA exemption).
16
5.

EXEMPTION 6.

17
The government redacted email addresses and phone numbers of both contractor and
18
DOD employees pursuant to Section 552(b)(6), which exempts “personnel and medical files
19
and similar files the disclosure of which would constitute a clearly unwarranted invasion of
20
personal privacy.” In determining whether disclosure would be an “unwarranted” invasion of
21
personal privacy, “a court must balance the public interest in disclosure against the interest
22
Congress intended the exemption to protect.” United States Dep’t of Def. v. Fed. Labor
23
Relations Auth., 510 U.S. 487, 495 (1994).
24
Here, plaintiff has not challenged the government’s Exemption 6 redactions in its
25
briefing. Moreover, because plaintiff has not shown, and this order does not find, any public
26
interest in the information at issue, this order finds that, on balance, the government has
27
sufficiently shown that the redactions at issue were properly made pursuant to Exemption 6.
28
Accordingly, the government’s motion for summary judgment as to Exemption 6 is GRANTED.
17

1

6.

EVIDENTIARY OBJECTIONS.

2

Plaintiff objects to sections of the declarations submitted by the government of

3

Susannah Raheb, Martha Crawford, Bethany Clever, and Harry Nahatis, arguing (very

4

conclusory) that these declarations contain misleading and inadmissible opinion testimony of

5

lay witnesses under FRE 403 and 701 and that the witnesses lack personal knowledge under

6

FRE 602 (Dkt. No. 47 at 34). The declarations, however, show how each witness has direct

7

responsibility for small business and federal government contracting issues (see Raheb Decl. ¶¶

8

1–2; Crawford Decl. ¶¶ 1–2; Clever Decl. ¶ 2; Nahatis Decl. ¶ 2). They therefore have direct

9

knowledge of both the issues in dispute and the competition within the relevant industry. That
the witnesses cannot say with certainty the effect of releasing the information at issue is

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10

insufficient grounds for objection. Plaintiffs’ objections are thus OVERRULED.

12

The government objects to, inter alia, the declaration of William A. Shook submitted by

13

plaintiff. Mr. Shook, an attorney who advises clients on government subcontracting, opined on

14

the risk (or lack thereof) of competitive harm upon disclosure. The government argues that

15

there is no evidence of Mr. Shook’s expertise on the issue and that certain sections of his

16

declaration are “based on speculative assertions that lack foundation” (Dkt. No. 48 at 23). This

17

order finds that, for purposes of finding an issue of material fact, Mr. Shook’s declaration

18

suffices. The government’s objection as to the Shook Declaration is thus OVERRULED.

19

Because this order does not rely on the other declarations the government disputes, those

20

objections are DENIED AS MOOT.
CONCLUSION

21
22

For the foregoing reasons, both motions for summary judgment are GRANTED IN PART

23

and DENIED IN PART. To the extent the Exemption 4 motions are denied, counsel shall please

24

promptly advise the Court how they wish to proceed.

25
IT IS SO ORDERED.
26
27

Dated: March 8, 2019.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

28
18