CENTER FOR PUBLIC INTEGRITY v. U.S. DEPARTMENT OF ENERGY
MEMORANDUM OPINION re: Defendant's 41 Renewed Motion for Summary Judgment and Plaintiff's 42 Renewed Cross-Motion for Summary Judgment. Please see the attached Memorandum Opinion for additional details. Signed by Judge Amit P. Mehta on 01/12/2018. (lcapm1)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
U.S. DEPARTMENT OF ENERGY,
CENTER FOR PUBLIC INTEGRITY,
Civil No. 1:15-cv-01314 (APM)
This case concerns a Freedom of Information Act (“FOIA”) request for records relating to
a Defendant Department of Energy (“DOE”) investigation into lobbying activities of Sandia
Corporation (“Sandia”), a contractor hired by DOE to operate Sandia National Laboratory, a
government-owned nuclear facility. In 2009, certain officials of Sandia and its parent company,
Lockheed Martin Corporation, devised a plan to lobby Congress and other federal officials to
renew Sandia’s contract with DOE without competitive bidding. An investigation by DOE’s
Office of Inspector General later revealed that the plan was developed and carried out with
taxpayer funds, in violation of federal law. Sandia eventually reached a civil settlement with the
U.S. Department of Justice.
Plaintiff Center for Public Integrity brought this FOIA action against DOE, seeking to
compel the disclosure of records concerning the agency’s investigation of Sandia. 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
these exemptions. This court resolved some of Plaintiff’s challenges when it ruled upon the
parties’ initial cross-motions for summary judgment. See Ctr. for Pub. Integrity v. U.S. Dep’t of
Energy, 234 F. Supp. 3d 65 (D.D.C. 2017). In its previous Opinion, the court held that Defendant
properly withheld information under FOIA Exemptions 3, 7(E), and 7(F), as well as certain
information under Exemptions 4, 6, and 7(C). Id. at 71. The court also found, however, that
Defendant did not provide sufficient justification with respect to certain other information withheld
under FOIA Exemptions 4, 6, and 7(C). See id. Similarly, the court held that Defendant did not
adequately justify its efforts to segregate and release all non-exempt records. Id. at 84. The court
gave the agency an opportunity to supplement its declarations to address these deficiencies. Id. at
Now before the court are the parties’ renewed cross-motions for summary judgment. Upon
consideration of the parties’ submissions and the present record, the court finds Defendant may
rely on Exemption 4 to withhold the e-mail communications between Sandia and its legal counsel,
except those portions that the agency has officially disclosed through public releases. The court
also concludes that Defendant has now provided sufficient justification for its redaction of names
and other identifying information pursuant to Exemption 7(C), except as to those names that the
agency has officially acknowledged through FOIA disclosures. The court therefore grants the
parties’ motions in part and denies them in part.
Sandia National Laboratory (“SNL”) is one of three nuclear laboratories falling under the
auspices of Defendant Department of Energy (“DOE”) and its sub-component, the National
Nuclear Security Administration (“NNSA”). See NNSA’s Mot. for Partial Summ. J., ECF No. 26
[hereinafter Def.’s Second Mot. for Partial Summ. J.], at 7;1 Def.’s Second Mot. for Partial Summ.
J., Decl. of James Eanes, ECF No. 26-1 [hereinafter Initial Eanes Decl.], ¶ 2; Def.’s Mot. for
Extension of Time to File NNSA’s Mot. for Partial Summ. J., ECF No. 23 [hereinafter Def.’s Mot.
for Ext. of Time], at 1; Compl., ECF No. 1, ¶ 5; Answer, ECF No. 8, ¶ 5. SNL is owned by the
federal government and forms a part of NNSA’s nuclear weapons complex. DOE’s Mot. for
Partial Summ. J., ECF No. 22 [hereinafter Def.’s First Mot. for Partial Summ. J.], Exs. to Decl. of
Adrienne Martin, ECF No. 22-2 [hereinafter OIG Report 2], at 8. SNL is not run, however, by
federal employees; rather, its operations are outsourced to a government contractor. In 1993,
following a competitive bidding process, DOE awarded the contract to operate SNL to Sandia
Corporation (“Sandia”), a wholly owned subsidiary of Lockheed Martin Corporation (“Lockheed
Beginning in 2009, Lockheed Martin and Sandia officials grew concerned about renewing
the contract to operate SNL, which was set to expire in 2012. Pl.’s Renewed Cross-Mot. for Summ.
J. & Opp’n to Def.’s Mot. for Summ. J., ECF No. 42 [hereinafter Pl.’s Cross-Mot. & Opp’n], at 2.
Under the contract, DOE paid Sandia approximately $2 billion annually to run the nuclear lab. Id.;
cf. OIG Report at 8. Lockheed Martin and Sandia officials hoped to renew the contract without
competitive bidding, so they devised a lobbying strategy to secure a contract renewal on a no-bid
basis, which included hiring outside consultants. Pl.’s Cross-Mot. & Opp’n at 2; cf. OIG Report
Citations to the parties’ pleadings are to the page numbers electronically generated by CM/ECF.
The “Special Inquiry” report authored by DOE’s Office of Inspector General (“OIG”) is labeled “Exhibit 2” within
ECF No. 22-2. While this document includes both a publicly available memorandum summarizing OIG’s findings,
id. at 7–13, and an official report that contains some of the redactions at issue in this case, id. at 14–35, the court will
refer to the document collectively as the “OIG Report” unless otherwise noted. Accordingly, the citations herein refer
to the page numbers electronically generated by CM/ECF.
In 2013, NNSA conducted a preliminary review of documentation regarding consultant
activities between SNL and Heather Wilson, LLC. OIG Report at 8. Based on that review, NNSA
alleged that “SNL impermissibly attempted to influence an extension to the Sandia Corporation
contract and engaged Ms. Wilson,” a former member of the U.S. House of Representatives, “in
these activities.” Id. This allegation, in turn, launched a special inquiry by DOE’s Office of
Inspector General (“OIG”). Id. During the OIG inquiry, Sandia took the position that its activities
did not violate federal law. See id. at 12.
OIG published the results of its investigation in November 2014. In its Report, OIG
concluded that “SNL used Federal contract funds to engage in activities that were intended to
influence the extension of Sandia Corporation’s contract with [DOE],” in violation of federal law.
Id. at 8–9; see also id. at 9 (citing 31 U.S.C. § 1352(a)(1), and 48 C.F.R. § 31.205–22(6)).
Specifically, OIG found that (1) “SNL formed an in-house Contract Strategy Team and utilized
consultants” to develop “a plan to secure a non-competitive bid extension” of Sandia’s contract
with DOE, “an essential element of [which] was to influence members of Congress and Federal
officials”; (2) “SNL employees, funded directly or indirectly with Federal resources, were actively
engaged in implementing the plan of the Contract Strategy Team and closely coordinated with
[Lockheed Martin] officials during this effort”; and (3) in addition to its contract extension efforts,
SNL disregarded concerns that its provision of certain information to the New Mexico
Congressional Delegation could be construed as lobbying, and continued to make suggestions to
Congress. See id. at 9–12. OIG offered a series of recommendations in its Report, including that
DOE management take steps to ensure SNL contractors would not interface with government
customers or legislators in order to obtain Sandia business and to recover any costs determined to
be unallowable. Id. at 13. DOE management concurred with the Report’s findings and identified
actions to address OIG’s recommendations. See generally id. 3
Sandia’s lobbying activities also drew the attention of the U.S. Department of Justice
(“DOJ”). Following an investigation, DOJ announced in August 2015 that Sandia had agreed to
pay $4,790,042 to settle alleged violations of the Byrd Amendment and False Claims Act for its
use of federal funds to lobby Congress and federal agencies. Pl.’s Cross-Mot. & Opp’n at 6; Sandia
Corporation Agrees to Pay $4.7 Million to Resolve Allegations Related to Lobbying Activities,
U.S. Dep’t of Justice (Aug. 21, 2015), https://www.justice.gov/opa/pr/sandia-corporation-agreespay-47-million-resolve-allegations-related-lobbying-activities.
Sandia did not make any
admission of liability as part of the settlement. Id.
In November 2014, Plaintiff Center for Public Integrity submitted a FOIA request to DOE
to produce, in sum and substance, all records relating to OIG’s investigation of Sandia. The history
of Plaintiff’s FOIA request is fully set forth in the court’s earlier Opinion, so the court does not
repeat it here. See generally Ctr. for Pub. Integrity, 234 F. Supp. 3d at 72. For present purposes,
it suffices to say that DOE withheld certain material, described in greater detail below, on the basis
of FOIA Exemptions 4 and 7(C). Those withholdings are the subject of the parties’ renewed crossmotions for summary judgment.
As stated above, supra note 2, OIG made the memorandum accompanying the official Report publicly available.
Compare OIG Report at 7–13, with Special Inquiry: Alleged Attempts by Sandia National Laboratories to Influence
Congress and Federal Officials on a Contract Extension, U.S. Dep’t of Energy, Office of Inspector General (Nov.
2014), https://energy.gov/sites/prod/files/2014/11/f19/IG-0927.pdf. The Report itself, however, was only recently
produced with redactions as a result of Plaintiff’s FOIA request. See OIG Report at 14–35; cf. Hr’g Tr. (draft), Dec.
15, 2017, at 68–69. The foregoing summary is based upon the memorandum, which is publicly available.
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
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)).
The agency bears the burden of proving that it withheld certain materials responsive to a
plaintiff’s FOIA request pursuant to a statutory exemption. Citizens for Pub. Responsibility &
Ethics in Wash. v. U.S. Dep’t of Justice, 746 F.3d 1082, 1088 (D.C. Cir. 2014) [hereinafter CREW
I]. “The agency may carry that burden by submitting affidavits that ‘describe the justification for
nondisclosure with reasonably specific detail, demonstrate that the information withheld logically
falls within the claimed exemption, and are not controverted by either contrary evidence in the
record nor by evidence of agency bad faith.’” Id. (quoting Larson v. Dep’t of State, 565 F.3d 857,
862 (D.C. Cir. 2009)). “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) (internal quotation marks omitted).
The parties’ renewed cross-motions for summary judgment present three issues for
resolution: (1) whether Defendant properly withheld e-mails between Sandia officials and the
company’s legal counsel pursuant to Exemption 4; (2) whether Defendant properly redacted the
names and other identifying information of certain individuals pursuant to Exemption 7(C); and
(3) whether Defendant satisfied its obligation to produce all reasonably segregable material. The
court will address each of these issues in turn, starting with the parties’ dispute over the
applicability of Exemption 4.
In this case, large portions of two e-mail strings between Sandia managers and Sandia legal
counsel remain at issue under Exemption 4. Def.’s Renewed Mot. for Summ. J., ECF No. 41
[hereinafter Def.’s Mot.], at 6–7; Def.’s Mot., Def.’s Statement of Material Facts Not in Dispute,
ECF No. 41-4 [hereinafter Def.’s Stmt. of Facts], ¶ 8. See generally Notice of Filing of Exs. in
Supp. of Def.’s Mot. for Partial Summ. J., ECF No. 27, Ex. H, ECF No. 27-7. 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). As written, the exemption
contains two threshold requirements—“the information must be (1) ‘obtained from a person’ and
(2) ‘commercial or financial.’” Wash. Post Co. v. U.S. Dep’t of Health & Human Servs., 690 F.2d
252, 266 (D.C. Cir. 1982) [hereinafter Wash. Post I]. If these threshold requirements are met, then
the court must determine if the information is “privileged or confidential.” Id.
Exemption 4’s threshold elements are not at issue. Plaintiff does not question whether the
material withheld pursuant to Exemption 4 was “obtained from a person.” See Pl.’s Cross-Mot.
for Summ. J. & Opp’n to Def.’s Mots. for Summ. J., ECF No. 30 [hereinafter Pl.’s Initial Cross-
Mot.], at 8; see also 5 U.S.C. § 551(2) (defining “person” to include a “corporation”). Similarly,
Plaintiff agrees with Defendant that the e-mails withheld contain “commercial” information. See
Pl.’s Initial Cross-Mot. at 8; see also Def.’s Second Mot. for Partial Summ. J. at 17 (“The
documents include . . . emails regarding commercial information.”); cf. Pl.’s Cross-Mot & Opp’n
at 4–5 (solely addressing privilege); Pl.’s Reply to Def.’s Opp’n to Pl.’s Renewed Cross-Mot. for
Summ. J., ECF No. 46 [hereinafter Pl.’s Reply], at 1–3 (same). Thus, the sole dispute pertains to
the redacted material’s privileged or confidential character. As to the former ground, Defendant
specifically claims that the redactions to the e-mails are protected from disclosure by the attorneyclient privilege. Def.’s Mot. at 6–8.
The court previously held that Defendant’s declarations fell “well short of establishing
attorney-client privilege” because they lacked the necessary factual detail to decide certain key
issues, including (1) whether Sandia’s counsel was providing legal, as opposed to business, advice
to Sandia managers, and (2) whether Sandia waived the privilege through third-party disclosure.
Ctr. for Pub. Integrity, 234 F. Supp. 3d at 77. Defendant’s supplemental declaration responds to
these shortcomings. First, Defendant’s declarant, James Eanes, a Sandia employee responsible for
managing Sandia’s interactions with NNSA, see Initial Eanes Decl. ¶¶ 1, 3, explains that the
purpose of the e-mails was to secure legal advice of Sandia’s counsel regarding the interpretation
of applicable law and contractual requirements. See Def.’s Mot. at 7; Def.’s Mot., Decl. of James
Eanes in Supp. of Def.’s Mot. for Summ. J., ECF No. 41-2 [hereinafter Suppl. Eanes Decl.], ¶ 3.
Specifically, he states that “[t]he email thread relates to Sandia management’s request for legal
advice regarding the permissible extent to which it could undertake certain contract completion
strategies, to include funds available for those strategies.” Suppl. Eanes Decl. ¶ 5. Additionally,
Eanes notes that the e-mail threads contain “two privilege notifications consistent with the
assertion of the Attorney-Client Privilege and/or Attorney Work Product Immunity.” Id. ¶ 4.
For its part, Plaintiff does not challenge the applicability of the attorney-client privilege in
the Exemption 4 context or the agency’s insistence that the e-mails qualify as attorney-client
communications. See Pl.’s Cross-Mot. & Opp’n at 4–5. Instead, Plaintiff focuses solely on the
issue of waiver. 4
It argues that Sandia waived the attorney-client privilege by voluntarily
producing the e-mails in full to OIG. Cf. id. at 5. Thus, according to Plaintiff, Exemption 4 cannot
shield e-mails that lost their privileged character years ago. The court agrees.
The D.C. Circuit adheres to a “strict rule on waiver” of the attorney-client privilege. SEC
v. Lavin, 111 F.3d 921, 929 (D.C. Cir. 1997). That rule requires the holder of the privilege to
“zealously protect the privileged materials, taking all reasonable steps to prevent their disclosure.”
Id. “[A]ny voluntary disclosure by the holder of such a privilege is inconsistent with the
confidential relationship and thus waives the privilege.” In re Subpoenas Duces Tecum, 738 F.2d
1367, 1369 (D.C. Cir. 1984) (quoting Permian Corp. v. United States, 665 F.2d 1214, 1219 (D.C.
“Voluntary disclosure,” in turn, “means the documents were not judicially
compelled.” Jordan v. U.S. Dep’t of Labor, No. 16-1868, 2017 WL 3382057, at *11 (D.D.C. Aug.
4, 2017) (quoting Chubb Integrated Sys. v. Nat’l Bank of Wash., 103 F.R.D. 52, 63 n.2 (D.D.C.
The strict rule on waiver applies with equal force when the voluntary disclosure is made to
a federal agency. In Permian, the D.C. Circuit held that the subject of a Securities and Exchange
Defendant does not dispute that waiver of the attorney-client privilege applies in the context of Exemption 4. See
Pl.’s Cross-Mot. & Opp’n at 4–5; see also Zander v. U.S. Dep’t of Justice, 885 F. Supp. 2d 1, 15 (D.D.C. 2012) (stating
that the attorney-client privilege is given the “same meaning” in “both the discovery and FOIA contexts”); see also
Wash. Post I, 690 F.2d at 267 n.50 (noting that the attorney-client privilege “is explicitly mentioned in the legislative
history of Exemption 4”).
Commission (“SEC”) investigation had “destroyed the confidential status” of privileged
communications by voluntarily disclosing them to the SEC. 665 F.2d at 1219. The subject of the
investigation tried to block the SEC from sharing the communications with another agency,
asserting that it had disclosed the privileged records to the SEC for a limited purpose, but the
Circuit rejected that argument. See id. at 1220–21. The court explained:
The client cannot be permitted to pick and choose among his
opponents, waiving the privilege for some and resurrecting the claim
of confidentiality to obstruct others, or to invoke the privilege as to
communications whose confidentiality he has already compromised
for his own benefit. . . . The attorney-client privilege is not designed
for such tactical employment.
Id. at 1221. Since Permian, the Circuit has consistently held parties to have waived privileged
communications that are voluntarily disclosed to government agencies. See United States v. White,
887 F.2d 267, 271 (D.C. Cir. 1989) (“Under the law of this circuit, a defendant can waive his
attorney-client privilege by releasing documents to . . . an investigative body at the pretrial stage.”);
In re Subpoenas Duces Tecum, 738 F.2d at 1370 (holding that party had “willingly sacrificed its
attorney-client confidentiality by voluntarily disclosing” privileged material to the SEC); see also
In re Grand Jury Investigation, Misc. Action No. 17-2336 (BAH), 2017 WL 4898143, at *11
(D.D.C. Oct. 2, 2017) (citing cases).
Here, Defendant admits that Sandia produced the e-mails to OIG “without any legal
compulsion on behalf of the OIG.” Def.’s Second Mot. for Partial Summ. J. at 17–18. At oral
argument, Defendant further admitted that, at the time Sandia disclosed the e-mails to OIG, it did
so without redacting any communication deemed confidential, and that Sandia did not attempt to
claw back the e-mails at the time of disclosure or upon the completion of the OIG’s investigation.
See Hr’g Tr. (draft), Dec. 15, 2017 [hereinafter Tr.], at 8–11. To compound matters, OIG directly
quoted from portions of both e-mails in the publicly disclosed “Memorandum for the Secretary,”
see OIG Report at 12; supra note 3, but Sandia never objected to OIG’s public release of its
attorney-client communications, cf. Tr. at 67. And there is more. In its official Report, OIG
described and quoted from the e-mails to an even greater extent than done in the Memorandum for
the Secretary. OIG Report at 27. Although not publicly disclosed at first, see Tr. at 68–69,
Defendant produced the OIG Report to Plaintiff without redacting references to the e-mail
communications, yet Sandia did not complain to Defendant about the release. Sandia’s silence in
the face of public revelation of its privileged communications is fatal to Defendant’s invocation of
Defendant’s arguments to the contrary are all unconvincing. First, Defendant argues that
Sandia’s disclosure of the e-mails was in fact involuntary, rendering the D.C. Circuit’s decision in
Permian inapplicable. Def.’s Opp’n to Pl.’s Cross-Mot. for Summ. J. & Reply to Pl.’s Opp’n to
Def.’s Renewed Mot. for Summ. J., ECF No. 44 [hereinafter Def.’s Opp’n & Reply], at 6–7. That
position, however, flies in the face of Defendant’s admission that “Sandia provided the
documents to the OIG without the need of a subpoena, court order, or any warrant.” Def.’s Second
Mot. for Partial Summ. J. at 17.5 Nor can Defendant rely on this court’s earlier Opinion, which
“held that Sandia’s production to DOE . . . includ[ing] the email communication at issue was
involuntary.” Def.’s Opp’n & Reply at 6 (citing Ctr. for Pub. Integrity, 234 F. Supp. 3d at 75).
The court so held in the context of deciding which test to apply to determine whether the
information at issue was “confidential” under Exemption 4, as opposed to privileged. See Ctr. for
Pub. Integrity, 234 F. Supp. 3d at 74–77. An involuntary disclosure in the context of the attorneyclient privilege is a different animal. Cf. Jordan, 2017 WL 3382057, at *11. And, importantly,
Sandia’s voluntary disclosure to OIG also renders inapposite Defendant’s reliance on Lavin, for that case concerned
the standard for waiver “with regard to involuntary disclosures.” 111 F.3d at 930.
Defendant offers no reason why Sandia could not have withheld from OIG the attorney-client
communications it now claims are privileged.
Second, Defendant maintains that Sandia “made an effort to reasonably protect and
preserve the email communication as privileged by labeling the email with an ‘Attorney-Client
Privilege and/or Attorney Work Product Immunity’ notification.” Def.’s Opp’n & Reply at 7. But
Sandia’s mere act of placing a confidentiality designation on a document cannot possibly inoculate
it from waiver. Cf. Artesian Indus., Inc. v. Dep’t of Health & Human Servs., 646 F. Supp. 1004,
1008 (D.D.C. 1986) (holding inadvertent disclosure of inter-office memorandum marked
“confidential” to government agency constituted waiver of attorney-client privilege). If a label
were all it took to zealously guard the privilege, then the strict rule on waiver would cease to have
Finally, Defendant asserts a public policy exception to the waiver rule “when the third party
to whom disclosure is made is a co-litigant with substantially identical interests.” Def.’s Opp’n &
Reply at 5 (quoting Miller, Anderson, Nash, Yerke & Wiener v. U.S. Dep’t of Energy, 499 F. Supp.
767 (D. Or. 1980)). In Miller, the district court applied this exception to the disclosure of an
internal legal memorandum written by the plaintiff’s attorney to a third-party agency, which was
deciding whether to intervene in the case. See 499 F. Supp. at 771. Here, by contrast, Sandia and
OIG did not have “substantially identical” interests at the time Sandia disclosed the e-mails. In
fact, they had diametrically opposed interests: OIG was investigating the illegal expenditure of
taxpayer funds by Sandia, and Sandia denied any wrongdoing. The fact that Sandia and Defendant
now claim to have “substantially identical interests” in this litigation cannot resurrect a privilege
that Sandia waived long ago.
In short, applying the strict rule on waiver here, Defendant cannot rely on the attorneyclient privilege to withhold the e-mails under Exemption 4.
Confidential Business Information
Having found the e-mails are not privileged, the court must address Defendant’s alternative
argument that the e-mails contain “confidential” information and thus still fall within the ambit of
Exemption 4. See Def.’s Opp’n & Reply at 7–8; Def.’s Second Mot. for Partial Summ. J. at 16–
20; Tr. at 62; see also Ctr. for Pub. Integrity, 234 F. Supp. 3d at 78.
The D.C. Circuit has developed two tests to determine whether information is
“confidential” for purposes of Exemption 4. If the agency receives the information by way of
mandatory disclosure, the court will apply the test set out in National Parks Conservation
Association v. Morton, 498 F.2d 765 (D.C. Cir. 1974). If disclosure to the agency is voluntary,
the court applies a different test. See Critical Mass Energy Project v. Nuclear Regulatory Comm’n,
975 F.2d 871, 878–80 (D.C. Cir. 1992). To determine whether disclosure is “voluntary” and thus
which test to apply, courts look to the agency’s “actual legal authority” to compel the documents
or information at issue. Ctr. for Auto Safety v. Nat’l Highway Traffic Safety Admin., 244 F.3d 144,
149 (D.C. Cir. 2001).
In its previous Opinion, this court found that the disclosures made by Sandia to Defendant
were involuntary and therefore applied National Parks. Ctr. for Pub. Integrity, 234 F. Supp. 3d at
75. In particular, the court reasoned that Sandia’s production of vendor contracts and slides,
presentations, and other documentary information relating to its strategy was involuntary because
“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.” Id.
Importantly, however, when the court wrote those words it did not have in mind presumptively
privileged attorney-client communications. There is no dispute that OIG could have compelled
Sandia to produce documents such as vendor contracts and slides, presentations, and other
documentary information relating to Sandia’s strategy. The same cannot be said of Sandia’s
privileged attorney-client communications. OIG could not have compelled Sandia to produce
those e-mail chains; that Sandia did so was a voluntary act. Thus, the court will apply the test set
out in Critical Mass to the redacted e-mails.
Under Critical Mass, voluntarily submitted information need only be “of a kind that would
customarily not be released to the public by the person from whom it was obtained” in order to
qualify as “confidential” for purposes of Exemption 4. 975 F.2d at 879. The inquiry is an objective
one, and the agency bears the burden of establishing the provider’s custom. Id. In this case,
Defendant has met that burden. Eanes’s initial declaration states that “Sandia routinely protects
internal communications of this nature and would not release such material to the public.” Def.’s
Mot. at 7 (citing Initial Eanes Decl. ¶ 15); see also Initial Eanes Decl. ¶ 15 (“Records
documenting . . . communications” between Sandia managers and Sandia legal counsel—the
release of which “would damage . . . legitimate Sandia business interests”—and “the information
they contain” “are maintained as confidential within Sandia using measures including storage in
locked areas and repositories and exercising measures to restrict access to both electronic and
hardcopy data materials.”). Plaintiff offers no contrary evidence. Accordingly, the court finds that
Defendant properly redacted the e-mails in question under the Critical Mass standard.
This holding, however, is subject to one exception: Defendant may not redact portions of
the e-mails that it already disclosed in the OIG Report and the Memorandum to the Secretary.
“[A]n agency waives its right to claim a FOIA exemption for information that it has officially
released in the public domain.” McKinley v. Bd. of Governors of Fed. Reserve Sys., 849 F. Supp.
2d 47, 59 (D.D.C. 2012) (citing Cottone v. Reno, 193 F.3d 550, 554 (D.C. Cir. 1999)); cf. Niagara
v. Mohawk Power Corp. v. U.S. Dep’t of Energy, 169 F.3d 16, 19 (D.C. Cir. 1999) (applying this
logic to material withheld pursuant to Exemption 4). Indeed, a court may compel disclosure “even
over an agency’s otherwise valid exemption claim” “when information has been ‘officially
acknowledged’” through prior disclosure. Wolf v. CIA, 473 F.3d 370, 378 (D.C. Cir. 2007)
(quoting Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990).
Here, the official
acknowledgement standard is easily met. See id. (setting forth standard).
As noted above, Plaintiff challenges Defendant’s redactions to two e-mail communications
between Sandia managers and Sandia counsel: an e-mail from March 21, 2004, and an e-mail
thread from May 20, 2010.
As to the earlier e-mail chain, the Memorandum to the Secretary,
which OIG published on its website, see Tr. 68, describes the exchange as follows:
[T]he documentation confirms that Sandia’s own Legal Counsel recognized in 2004
that as a Federally Funded Research and Development Center SNL was required to
operate with objectivity and full disclosure to the sponsoring agency. When
considering the question of whether a cost would be allowable when SNL assisted
[Lockheed Martin] in matters of competition, the Legal Counsel warned that,
“Neither Sandia nor NNSA could tolerate even the suspicion that Sandia was
assisting in the competition at prime contract expense.”
OIG Report at 12 (emphasis added). The OIG Report reveals even more about the March 21,
2004, e-mail thread:
As early as March 21, 2004, SNL had considered the question of
whether a cost would be allowable when SNL assisted [Lockheed
Martin (“LMC”)] in matters of competition. A March 21, 2004, email from SNL Legal Counsel stated, that there was a tenuous benefit
to SNL in merely assisting LMC in the acquisition of other business.
Legal Counsel believed that segregating LMC “Business
Development” from the “M&O of Sandia” would be appropriate.
Legal Counsel stated: “Finally, I am recalling that as an FFRDC we
operate with objectivity and with full disclosure to the sponsoring
agency. Neither Sandia nor NNSA could tolerate even the suspicion
that Sandia was assisting in the competition at prime contract
Id. at 27. Plaintiff received the foregoing excerpts when Defendant produced the OIG Report.
After conducting an in camera review of the records in dispute, the court finds that the
following statements contained in the March 21, 2004, e-mail chain are specific enough, and
sufficiently match, the above-referenced portions of the Memorandum to the Secretary and the
OIG Report and must be disclosed to Plaintiff: (1) “I think we have a classic question regarding
whether and when a cost is allocable and allowable”; (2) “I would think there is tenuous benefit to
SNL in merely assisting LM to acquire other business”; (3) “I think that segregating LM Business
Development and B&P, distinct from M&O of Sandia, would be appropriate”; and (4) “Finally, I
am recalling that as an FFRDC we operate with objectivity and with full disclosure to the
sponsoring agency. Neither Sandia nor NNSA could tolerate even the suspicion that Sandia was
assisting in the competition at prime contract expense.” Defendant officially acknowledged these
excerpts by disclosing them to Plaintiff in response to Plaintiff’s FOIA request. Cf. Chesapeake
Bay Found., Inc. v. U.S. Army Corps of Eng’rs, 722 F. Supp. 2d 66, 72 (D.D.C. 2010) (holding
that public domain exception applied to information previously disclosed by agency in its initial
Vaughn index where such information was identical to information the agency sought to withhold).
Defendant has waived its right to assert FOIA Exemption 4 to withhold these statements. Cf.
Niagara, 169 F.3d at 19; Customs & Int’l Trade Newsletter v. U.S. Customs & Border Prot., 588
F. Supp. 2d 51, 57–58 (D.D.C. 2008).
OIG made similar official disclosures about the May 20, 2010, e-mail chain.
Memorandum to the Secretary states the following about those communications:
[OIG] located an email dated May 20, 2010, in which an SNL
official wrote, “In terms of precedent, we used operating costs in the
same way in securing the extensions in  and 2003.” This
official also stated that, “In 2003 there was a Sandia team formed to
secure the extension and we worked closely with [Lockheed
OIG Report at 12. The OIG Report says even more:
In a May 20, 2010 e-mail from [REDACTED] to the SNL Legal
Counsel, [REDACTED] stated that the LMC [REDACTED] of
Washington Operations had called and asked if “Sandians” [Sandia
employees] could work with LMC on the contract extension
(meeting with NNSA, putting together strategies and contract
terms). [REDACTED] told the SNL Legal Counsel that, “I told
[REDACTED] yes, because there is no RFP, no competition, so we
can work on [the] extension using our operating dollars.”
[REDACTED] asked SNL Legal Counsel for information that
[REDACTED] could provide to the LMC [REDACTED] citing the
law and contract provisions supporting the position that “no
competition means operating dollars can be spent.”
The SNL Legal Counsel responded by providing the March 21, 2004
e-mail legal opinion. Legal Counsel noted that a normal part of
contract management and administration was to engage with the
Government customer regarding schedule as well as other revisions
to the contract. Legal Counsel indicated that, “The cost of that
activity is allowable.”
Id. at 27. Thus, as with the March 2004 e-mail, Defendant has officially acknowledged through
prior disclosure multiple parts of the May 2010 e-mail thread.
Again, after having conducted an in camera review of the May 2010 communication in
question, the court finds that Defendant must release: (1) the entirety of the first e-mail, which is
timestamped 12:01 p.m., with the exception of the last sentence of the first paragraph; (2) the first
two sentences of the third paragraph in the second e-mail, which is timestamped 1:26 p.m.,
excluding the bulleted list; and (3) the second and third sentences of the first paragraph in the third
e-mail, which is timestamped 4:27 p.m. 6
To be clear, the court does not hold that Defendant must disclose the names and other identifying information of
persons mentioned in the e-mails, which were withheld on the basis of Exemptions 6 and 7(C). The court’s holding
below with respect to Defendant’s invocation of Exemption 7(C), and its earlier Opinion with respect to Exemption
6, control the disclosure of such names.
In sum, the court agrees with Defendant that the two e-mail chains are properly
characterized as confidential commercial information within the meaning of Exemption 4.
Defendant cannot, however, rely on Exemption 4 to redact the above-mentioned portions of the emails that OIG officially acknowledged through release into the public domain. Cf. Students
Against Genocide v. Dep’t of State, 257 F.3d 828 (D.C. Cir. 2001) (“[W]hile the logic of FOIA
postulates that an exemption can serve no purpose once information . . . becomes public, we must
be confident that the information sought is truly public and that the requester receive no more than
what is publicly available before we find a waiver.” (second alteration in original) (quoting
Cottone, 193 F.3d at 555)).
The court next addresses whether Defendant properly withheld, pursuant to Exemption
7(C), names and other identifying information from responsive law enforcement records,
consisting of work papers, e-mails, memoranda of inspection activity, and publicly available
information. Def.’s Mot. at 8–12; Def.’s Stmt. of Facts ¶ 8. 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
personal 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); accord Am. Civil Liberties Union (ACLU) v.
U.S. Dep’t of Justice, 655 F.3d 1, 6 (D.C. Cir. 2011).
In its earlier Opinion, the court held that Defendant’s invocation of Exemption 7(C) fell
short because Defendant had not made an “individualized assessment” of the public-private
balancing as to the three categories of employees whose identifying information the agency
withheld. Ctr. for Pub. Integrity, 234 F. Supp. 3d at 81. The court allowed Defendant to conduct
the balancing in the first instance and renew its motion. Id. Defendant has now done so. See
Def.’s Mot. at 11–12; Def.’s Opp’n & Reply at 8–10. As before, Defendant invokes Exemption
7(C) to withhold names of three categories of individuals: (1) “individuals employed by Sandia
National Laboratories (‘SNL’), Sandia Corporation, . . . and Sandia Corporation’s parent
company, Lockheed Martin Corporation”; (2) “all DOE employees in pay grades GS-15 and
below”; and (3) “witnesses and those who were interviewed during the course of the OIG inquiry.”
Def.’s Mot. at 9, 11. This type of categorical approach to withholding is proper under FOIA “so
long as [the agency’s] definitions of [the] relevant categories are sufficiently distinct to allow a
court to determine whether specific claimed exemptions are properly applied.” Prison Legal News
v. Samuels, 787 F.3d 1142, 1149–50 (D.C. Cir. 2015) (internal quotation mark omitted). The court
finds no error here in Defendant’s grouping of employees. Cf. Citizens for Pub. Responsibility &
Ethics in Wash. v. U.S. Dep’t of Justice, 854 F.3d 675, 681–82 (D.C. Cir. 2017) [hereinafter CREW
II]. Defendant further claims that it has conducted the public-private balancing under Exemption
7(C) and that its withholding of all names and identifying information is proper. See Def.’s Mot.
Background Concerning Review and Production of Records
Before the court turns to the merits of Defendant’s invocation of Exemption 7(C) and its
balancing of interests, some context is necessary with respect to the disclosures the agency already
has made to Plaintiff. Upon receiving Plaintiff’s FOIA request in 2014, OIG identified and
reviewed a total of 114 documents responsive to Plaintiff’s request. Def.’s Stmt. of Facts ¶ 2. Of
those documents, OIG ultimately released 71 documents either in part or in full and withheld two
in their entirety. Id. ¶¶ 3, 7. 7 This set of documents included the aforementioned OIG Report and
Memorandum to the Secretary, as well as other work product created by OIG as a part of its
investigation into Sandia’s lobbying activities. Tr. at 33–35. As to the other 41 documents found
in its investigative file, OIG forwarded them to NNSA for review. Def.’s Stmt. of Facts ¶¶ 3, 7;
see Tr. at 33–35. This set of documents included those records that NNSA received from Sandia
pursuant to its request for records. Tr. at 33; cf. Pl.’s Initial Cross-Mot., Ex. C, ECF No. 30-5
NNSA, along with Sandia staff, reviewed and ultimately produced 39
documents with redactions. Ctr. for Pub. Integrity, 234 F. Supp. 3d at 72 (citing Def.’s Second
Mot. for Partial Summ. J. at 1–3).
OIG and NNSA took different approaches with respect to weighing the privacy interests
of individuals whose names appear in the responsive documents. See generally Tr. at 27–47. OIG
conducted an independent review of the documents that it eventually disclosed and concluded that
all Sandia officials, regardless of rank or participation in the lobbying scheme, “ha[d] the same
privacy interest that any other private citizen would have” under Exemption 7(C). Id. at 36:16-18.
As a result, for example, OIG redacted the names of all Sandia employees appearing in the OIG
Report. See Def.’s First Mot. for Partial Summ. J. at 14–15; Def.’s Mot., Suppl. Decl. of Adrienne
Martin, ECF No. 41-1 [hereinafter Suppl. Martin Decl.], ¶ 7.
The two documents withheld in their entirety by OIG were drafts of the OIG Report, which OIG withheld pursuant
to Exemption 5. See Def.’s First Mot. for Partial Summ. J., Decl. of Adrienne Martin, ECF No. 22-1, ¶¶ 24–25.
Plaintiffs, however, conceded the arguments raised by Defendant in its initial motion for summary judgment
supporting the invocation of Exemption 5. Ctr. for Public Integrity, 234 F. Supp. 3d at 72 n.1; see also id. (reasoning
that in the alternative, the court was “convinced, in light of the evidence submitted and controlling authority, that
Defendant ha[d] carried its burden as to those records”).
At oral argument, it became clear that, unlike OIG, NNSA did not withhold the names of
all Sandia employees. Instead, it disclosed the names of certain “key management official[s]” at
Sandia, because, according to NNSA, those officials contractually waived their privacy interests
as a part of the DOE contract. See Tr. at 30–32, 36–37, 44. NNSA did review the documents in
question under Exemption 6, but in NNSA’s estimation Exemption 6 did not allow withholding
the names of high-level Sandia officials. See id. at 27:25–28:5 (“[W]hen the NNSA did [its]
analysis on Exemption 6 . . . [it] looked at . . . who were high-level managerial folks, and those
names were actually released, the people making the decisions, the people in that capacity.”); see
also Def.’s Second Mot. for Partial Summ. J. at 26–27; Ctr. for Pub. Integrity, 234 F. Supp. 3d at
81–82. With respect to timing, NNSA made its determination to disclose names after OIG had
released its redacted records. Tr. at 62–63.
These disparate approaches, standing alone, are unremarkable. But herein lies the problem:
Some of the documents that NNSA disclosed in full without names redacted were originally part
of OIG’s investigative file, cf. Tr. at 33–35; id. at 44:8-19, yet OIG cited those very documents its
Report with names redacted. That one component of DOE disclosed the names of certain highlevel Sandia officials in some documents, while another component did not, raises several
questions, the answers to which are critical to framing the merits of this issue. First, as to those
names NNSA disclosed, does the official acknowledgment doctrine operate to bar Defendant from
invoking Exemption 7(C) to block the release of those same names as found in OIG’s records?
Second, if the official acknowledgment doctrine does not bar all invocations of Exemption 7(C)
for a person whose name NNSA has released, what effect does NNSA’s public disclosure have on
the person’s privacy interest in the Exemption 7(C) balancing? Finally, if a person whose name
NNSA has disclosed retains some privacy interest in OIG’s records, does that person’s interest
vary depending on the document that NNSA has disclosed? Concrete examples will help flesh out
the answers to these questions, but the court first turns to the law.
Official Acknowledgment Doctrine
In order for information to be considered “officially acknowledged,” it must “match” the
information previously disclosed,” be “as specific as” such information, and it must have been
“made public through an official and documented disclosure.” Fitzgibbon, 911 F.2d at 765. An
agency’s release of records in response to a FOIA request qualifies as an official and documented
disclosure. See Chesapeake Bay Found., 722 F. Supp. 2d at 71–72 (holding that agency waived
withholding of names when it disclosed them in its Vaughn index); Hall v. Dep’t of Justice, 552
F. Supp. 2d 23, 30–31 (D.D.C. 2008) (“The court agrees that, to the extent that the non-redacted
portions specifically identify the names of individuals in specific redacted portions of the
documents, DOJ cannot redact these names.”). Applying that principle here, however, involves a
slight wrinkle. There can be little doubt that NNSA officially acknowledged the names of some
high-ranking Sandia officials by releasing those names to Plaintiff in unredacted records. See Hall,
552 F. Supp. 2d at 30–31. But does NNSA’s release of names foreclose OIG from redacting those
same names from its disclosed material? Put more broadly, does official disclosure of a name by
one agency component preclude another agency component from withholding the same name?
Circuit precedent addresses and answers the question. While “[d]isclosure by one federal
agency does not waive another agency’s right to assert a FOIA exemption,” Mobley v. CIA, 806
F.3d 568, 583 (D.C. Cir. 2015), “[t]hat rule does not apply . . . where the disclosures are made by
an authorized representative of the agency’s parent,” Am. Civil Liberties Union (ACLU) v. CIA,
710 F.3d 422, 429 n.7 (D.C. Cir. 2013). Moreover, official disclosure by one component binds
another component of the same agency. So, for example, in Marino v. Drug Enforcement
Administration, the D.C. Circuit held that “a federal prosecutor’s decision to release information
at trial is enough to trigger the public domain exception where the FOIA request is directed to [the
FBI,] another component within the Department of Justice.” 685 F.3d 1076, 1082 (D.C. Cir. 2012)
(citing Davis, 968 F.2d at 1279–82); see id. (applying this rationale to disallow a Glomar response
by the DEA, another component within the DOJ, where a U.S. Attorney released documents); see
also Bartko v. U.S. Dep’t of Justice, 62 F. Supp. 3d 134, 143 (D.D.C. 2014) (“[T]he prosecutor’s
decision to acknowledge the investigation is ‘enough to trigger the public domain exception,’ as
both [the prosecutor] and [the Office of Professional Responsibility] work for DOJ.”); cf. ACLU,
710 F.3d at 429 n.7 (citing cases). Here, Defendant admits that both OIG and NNSA fall under
the auspices of DOE. See generally Compl. ¶ 5 (alleging that both OIG and NNSA are “component
agencies or offices of Defendant DOE,” which had “possession of and control over the records
that plaintiff seeks”); Answer ¶ 5 (admitting paragraph 5 of Complaint).
disclosures trigger an official acknowledgment waiver on behalf of other DOE subcomponents,
A question remains, however, as to the scope of NNSA’s official acknowledgment of a
person’s name. Does that acknowledgment extend to all OIG records containing the disclosed
person’s name, or does it apply only to OIG material that mirrors or is derived from the NNSAproduced document? An example is useful here. Take the May 20, 2010, e-mail chain discussed
above. NNSA disclosed that record to Plaintiff with the name “Becky Krauss” appearing in the
“To” or “From” lines in the component emails. See Notice of Filing of Exs. in Supp. of Def.’s
Mot. for Partial Summ. J., ECF No. 27, Ex. H, ECF No. 27-7, at 1–2. OIG’s Report discusses the
May 20, 2010, e-mail chain, but when OIG produced the Report to Plaintiff it redacted the names
of all senders and recipients of the emails, including presumably Becky Krauss. See OIG Report
at 27. But application of the official acknowledgment doctrine precludes OIG from redacting
Krauss’s name in connection with its discussion of the May 20, 2010, e-mail chain. The same is
not true, however, for all other OIG records containing Krauss’s name, including other references
to Krauss that might be in the Report. For there to be an official acknowledgment, the information
disclosed must precisely “match” the information requested. See Fitzgibbon, 911 F.2d at 765.
Thus, although NNSA officially acknowledged Krauss’s name in connection with the May 20,
2010, e-mail chain, that acknowledgment does not extend to all other appearances of Krauss’s
name in OIG records. Cf. Wolf, 473 F.3d at 373–74, 378–79 (disallowing Glomar response only
as to those records read into the congressional record about a person, but permitting Glomar
response as to all other responsive records in the agency’s possession about the same person); Hall,
552 F. Supp. 2d at 31 (holding that official disclosure of names does warrant disclosure of other
redacted information in the same record). For example, if OIG interviewed Krauss and redacted
her name in the Report when referring to her interview statements, Krauss’s name has not been
officially acknowledged as to that particular reference in the Report.
Thus, the official
acknowledgment of a person’s name is document specific.
So, if an unredacted document released by NNSA is directly discussed or quoted in a
released OIG record, such as the OIG Report, then Defendant can no longer rely on Exemption
7(C) to protect the identity of persons who appear in both records. Therefore, Defendant must
produce to Plaintiffs any such OIG records without redacting such names.
Balancing of Interests Under Exemption 7(C)
Having established the circumstances in which the agency can no longer withhold names,
the court turns to the Exemption 7(C) analysis. Under this analysis, the court must balance the
privacy interests of the individuals named in the documents against the public interest in
disclosure. As previously discussed, the parties’ dispute over the application of Exemption 7(C)
centers on whether Defendant may redact the names of three general categories of individuals:
(1) high-level Sandia, SNL, and Lockheed Martin officials; (2) DOE employees who are at pay
grades GS-15 or below; and (3) individuals who were interviewed during the OIG Inquiry.
Furthermore, as indicated above, the dispute over the first category of names now contains an
added wrinkle, given NNSA’s and OIG’s different approaches with respect to the names of highlevel Sandia officials.
High-Level SNL, Sandia, and Lockheed Martin Employees
With respect to the first category of names redacted by Defendant, the Supplemental
Declaration of OIG Information Specialist Adrienne Martin clarifies that these individuals are
“relatively high-level employees of SNL, Sandia Corporation, or Lockheed Martin Corporation,
several of whom had concurrent positions in more than one of those entities.” Suppl. Martin Decl.
¶¶ 1, 7. The employees falling within this category include not only those who advocated for
Sandia “to charge the cost of lobbying activities to the contract with DOE for the operation of
SNL,” but also those who opposed that decision. Id. ¶ 7. According to Defendant, the “common
element” uniting the advocates and opponents of the decision is that “none of the[m] . . . w[ere]
determined [by OIG] to be [individually] culpable . . . for any misconduct” or “indicted for or
convicted of any criminal activity.” Def.’s Mot. at 10 (citing Suppl. Martin Decl. ¶ 7).
Before turning to the balancing of interests with respect to this category of individuals, the
court raises but ultimately sets aside a threshold issue: For purposes of Exemption 7(C), should
Sandia employees be treated as private citizens because they work for a private company, or are
they more akin to government employees because they carry out a unique government function,
i.e., operating a government-owned nuclear lab? That distinction is important because it dictates
the weight of the privacy interest at stake and the proper test to apply. To protect the substantial
privacy interests recognized under Exemption 7(C), the D.C. Circuit has adopted a “categorical
rule 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) (quoting SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1206 (D.C.
Cir. 1991)); accord CREW I, 746 F.3d at 1094 (observing that the categorical rule announced in
SafeCard applies to “the redaction of the names and identifying information of private citizens
mentioned in law enforcement files”). Although the D.C. Circuit has made clear that the SafeCard
categorical rule typically will operate to protect the names and identifying information of private
citizens appearing in law enforcement records, Schrecker, 349 F.3d at 661, 8 the case law is less
clear about the rule’s application to government officials and employees, compare Sussman v. U.S.
Marshals Serv., 494 F.3d 1106, 1115 (D.C. Cir. 2007) (affirming agency decision to withhold
private information regarding law enforcement officials and “other government employees”
because plaintiff’s “bare and undeveloped allegations would not warrant a belief by a reasonable
person that impropriety might have occurred”), with Schrecker, 349 F.3d at 661 (noting that while
“government officials do not surrender all rights to personal privacy when they accept a public
appointment, [the court] ha[s] not had occasion to decide whether the SafeCard rule applies to
former officials no longer in government service” (emphasis added)); Quinon v. FBI, 86 F.3d 1222,
1230 (D.C. Cir. 1996) (recognizing that the privacy interests of government officials are at least
The categorical rule does not apply to private individuals who have been publicly implicated in a law enforcement
investigation because such persons have “a diminished privacy interest in [the] certain information that may be
contained in the records at issue.” CREW II, 854 F.3d at 682; cf. Judicial Watch, Inc. v. Nat’l Archives & Records
Admin., 876 F.3d 346, 350 (D.C. Cir. 2017) (recognizing that such individuals still retain significant privacy interests
in the contents of the investigative files).
somewhat diminished). Thus, here, if Sandia officials are considered to be private individuals for
purposes of Exemption 7(C), Safecard’s categorical rule applies; if, on the other hand, they are
considered akin to government employees because they operate a government-owned nuclear lab,
then Safecard’s categorical rule arguably moves aside in favor of an individualized balancing of
the public-private interests, see, e.g., CREW II, 854 F.3d at 682–83. The court need not, however,
choose between the two here, for even if the court applies the less stringent individualized
balancing test to this first category of employees, Plaintiff loses because in each instance a
balancing of the employees’ privacy interests outweigh the claimed public interest.9
On the privacy side of the balance, the privacy interests are substantial for every Sandia
official and employee in this category. That privacy interest takes two forms. First, “individuals
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). “That privacy interest also extends to third
parties who may be mentioned in investigatory files, as well as to witnesses and informants who
provided information during the course of an investigation.” Id. The Circuit also recognizes “a
second, distinct” type of privacy “interest in the contents of the investigative files.” CREW I, 746
F.3d at 1092. Thus, even if a person’s privacy interest is diminished because he is publicly
associated with a law enforcement investigation, the person retains a “not insubstantial” privacy
interest in the investigative files’ contents. See id.
Here, there can be little doubt that each Sandia employee—even if treated on par with a
government employee—possesses a substantial privacy interest in not having his or her name
To be sure, the categorical rule would apply to Lockheed Martin employees not dually employed by Sandia or SNL,
as those persons are only private individuals. See Tr. at 17. For ease of analysis, however, the court treats these “pure”
Lockheed Martin employees as it does Sandia employees.
associated with a law enforcement investigation and in the investigative files’ contents. See
Judicial Watch, Inc. v. Nat’l Archives & Records Admin., 876 F.3d 346, 350 (D.C. Cir. 2017);
CREW II, 854 F.3d at 683. That holds true irrespective of the person’s role in the lobbying scheme.
And it also obtains for those high-level Sandia officials whose names NNSA released as part of its
production and who now arguably might be associated with proof of wrongdoing. No employee
has been publicly identified by a law enforcement agency as having engaged in violating the law,
let alone stood accused or convicted of an offense. As the Circuit observed in CREW II: “The
privacy interests of individuals who have not been convicted in connection with this
investigation—and even more so those who have not been publicly linked with the investigation
whatsoever—differ greatly from those of individuals who were convicted or pled guilty for their
roles.” 854 F.3d at 683. To be sure, Sandia only can act through its agents or employees, and
therefore someone must be responsible (though not necessarily in the legal sense) for the federal
law violations. But the court is not aware of any case that diminishes a person’s privacy interests
simply because her employer, on account of the doctrine of respondeat superior liability, is held
accountable for a law violation. Accordingly, all persons in this category possess a substantial
To overcome this privacy interest in favor of disclosure, Plaintiff must make two showings
related to the public interest. First, it must demonstrate that “the public interest sought to be
advanced is a significant one, an interest more specific than having the information for its own
sake.” Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 172 (2004). The Supreme Court
has made clear that “[t]he only relevant public interest in the FOIA balancing analysis [is] the
extent to which disclosure of the information sought would ‘she[d] light on an agency’s
performance of its statutory duties’ or otherwise let citizens know ‘what their government is up
to.’” U.S. Dep’t of Defense v. FLRA, 510 U.S. 487, 497 (1994) (third alteration in original)
(quoting Reporters Comm., 489 U.S. at 773); accord CREW I, 746 F.3d at 1093. Second, Plaintiff
must show that “the information [sought] is likely to advance that interest.” Favish, 541 U.S. at
172. The failure to make either showing renders the invasion of privacy unwarranted.
Here, Plaintiff relies upon two distinct public interests. First, Plaintiff asserts a public
interest in understanding how the agency conducted its investigation, i.e., in learning whether OIG
properly performed its duties as the investigative arm of DOE. See Tr. at 48, 52. Specifically,
Plaintiff asserts that “Defendant has admitted that Sandia Corporation committed serious
misconduct,” and “[i]f, as Defendant maintains, it determined that every individual it investigated
‘was not involved in any misconduct or culpable of any wrongdoing,’ then there can be no
conclusion other than its investigation was inadequate.” Pl.’s Reply at 3 (internal citation omitted).
Plaintiff therefore argues that, like in CREW I, the public has an interest in matters of “substantive
law enforcement policy.” 746 F.3d at 1093 (citation omitted). That is, “the relevant public interest
is not to find out what [the Sandia officials] w[ere] ‘up to’ but rather how [DOE’s OIG] carried
out [its] . . . dut[y] to investigate” illegal conduct. Id.
The court disagrees. In CREW I, the Department of Justice explained that the requested
records related to “a wide-ranging public corruption investigation as part of [the FBI’s] ongoing
efforts to root out systemic corruption within the highest levels of government,” and the court
found that disclosure of such records “would likely reveal much about . . . whether the government
had the evidence but nevertheless pulled its punches.” Id. (alteration in original and internal
quotation marks omitted). By contrast, Plaintiff here does not explain how releasing the names of
Sandia employees will get Plaintiff any closer to learning whether OIG pulled its punches or, for
that matter, anything else about the investigation. Defendant already has released the final OIG
Report and relevant investigative records. That release offers Plaintiff a bounty of information
about OIG’s investigation, including the categories of witnesses it interviewed, the documents it
reviewed, how it weighed the evidence, and the conclusions it drew. In view of that release, the
public interest in evaluating the OIG inquiry is “greatly reduced.” Cf. Judicial Watch, 876 F.3d at
350 (finding the “weighty public interest in evaluating government investigations of public
officials” was “greatly reduced” where there was “voluminous information already in the public
domain about the . . . investigation” and “[t]he political branches of the federal government ha[d]
assessed the evidence and documented their proceedings and findings in publicly available
reports” (internal quotation marks omitted)).
Arguably, the release of names might enable Plaintiff to determine if any specific
individual escaped public scrutiny for an improper purpose. But the mere prospect of doing so is
not enough to overcome the employees’ substantial privacy interests. See Favish, 541 U.S. at 174
(stating that “[w]here the public interest being asserted is to show that responsible officials acted
negligently or otherwise improperly in the performance of their duties, the requester must establish
more than a bare suspicion in order to obtain disclosure”). Here, Plaintiff has offered no reason to
suspect that OIG purposely gave Sandia employees responsible for the lobbying scheme a free
pass. Indeed, Plaintiff has not even given the court reason to believe that OIG’s mandate required
it to make findings of individual culpability. See Tr. at 52–54. Plaintiff’s mere conjecture about
what the names might reveal cannot outweigh those persons’ substantial privacy interests. See
Favish, 541 U.S. at 174; Lewis v. U.S. Dep’t of Justice, No. 09-5225, 2010 WL 1632835, at *1
(D.C. Cir. Apr. 7, 2010).
The second public interest that Plaintiff advances—to ensure that those who engaged in
wrongdoing are held accountable and are not in a position to do it again—is equally unavailing.
Tr. at 48; see also Pl.’s Cross-Mot. & Opp’n at 10; Pl.’s Reply at 3. The D.C. Circuit has held
that, under certain circumstances, the public has a distinct interest “in knowing who the public
servants are that were involved in [a] governmental wrongdoing, in order to hold the governors
accountable to the governed.” Stern v. FBI, 737 F.2d 84, 92 (D.C. Cir. 1984); see also Prison
Legal News, 787 F.3d at 1151. But that interest gains little traction here for two reasons. First,
since Stern, the Circuit has circumscribed that interest to the exceptional case that captures
widespread public attention. See Beck v. U.S. Dep’t of Justice, 997 F.2d 1489, 1493 (D.C. Cir.
1993). In this case, although Sandia’s misdeeds became public, they hardly qualify as a “wellpublicized scandal” that captured the public’s attention. Second, Lockheed Martin and Sandia are
no longer running SNL, having lost the contract as of 2017. See Tr. at 49, 56. Thus, those involved
in the lobbying scheme are likely no longer in a position to misuse taxpayer money, and Plaintiff
has got given the court reason to think otherwise. The public interest in “hold[ing] the governors
accountable to the governed” is therefore diminished.
In the end, whatever public interest there is in learning the identities of the persons
involved in Sandia’s lobbying efforts, that interest is not outweighed by those persons’ substantial
privacy interests. Accordingly, Defendant properly invoked Exemption 7(C) to withhold the
names of Sandia, SNL, and Lockheed Martin employees from disclosure, subject to the court’s
official acknowledgment holding above.
DOE Employees Who Serve at the GS-15 Level and Below
Defendant also redacted the names of “all DOE employees in pay grades GS-15 and below”
from the responsive records. Suppl. Martin Decl. ¶ 9. According to Defendant, most of these
employees are either OIG investigators or employees at DOE headquarters or field offices who
shared background information with investigators. Id. “None of the Federal employees” in this
category “was alleged to have been involved in any misconduct or wrongdoing of any kind.” Id.
The court “need not linger over the balance” as to these employees. Nat’l Ass’n of Retired
Fed. Emps. v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989). Plaintiff disclaims its demand to learn
the names of OIG investigators. See Pl.’s Cross-Mot. & Opp’n at 8. For the remaining employees,
there can be little doubt that these individuals have a “substantial” privacy interest in avoiding
disclosure of their names. See Schrecker, 349 F.3d at 666. The only public interest Plaintiff claims
is that “the names of the other [non-investigative] employees are important in understanding the
significance of the information they provided.” Pl.’s Mot. at 8. It is not at all clear what Plaintiff
means by this, but in any event it is not an interest that reveals “what [the] government is up to.”
Reporters Comm., 489 U.S. at 773. In the end, “something, even a modest privacy interest,
outweighs nothing every time.” Nat’l Ass’n of Retired Fed. Emps., 879 F.2d at 879.
Individuals Interviewed During the OIG Inquiry
Finally, Defendant redacted the names of “those who were interviewed during the course
of the OIG inquiry.” Suppl. Martin Decl. ¶ 11. These individuals fall into two camps. The first
consists of DOE officials at various levels, none of whom are alleged to have been involved in any
misconduct or wrongdoing of any kind. Id. ¶ 12. The second consists of high-level “SNL, Sandia
Corporation, and Lockheed Martin Corporation” employees, both advocates and opponents of the
Sandia decision, who were interviewed by OIG “regarding the decision to charge lobbying
expenses to the SNL contract.” Id. Given the substantial overlap between this third category of
individuals and the first and second categories, the non-disclosure of the names of these individuals
was proper for the reasons already discussed. Moreover, to the extent there are any individuals
who fall within this third category but do not fall within the first or second categories, Plaintiff
does not address why disclosure of these names is warranted under the balancing test. Cf. Pl.’s
Cross-Mot. & Opp’n at 9. Accordingly, Defendant properly withheld these names, too, under
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, 494
F.3d at 1116. Because “[t]he 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.
In its previous Opinion, the court found Defendant had not sufficiently justified its
segregability determination with respect to documents that were properly withheld pursuant to
Exemptions 3, 4, 6, 7(E), and 7(F), and directed Defendant to “provide a sufficiently ‘detailed
justification’” regarding this determination. Ctr. for Pub. Integrity, 234 F. Supp. 3d at 83 n.5, 84.
Defendant has now done so. The court has reviewed the Supplemental Hamblen Declaration and
the Martin Declaration and is satisfied that Defendant has carried out its duty to disclose reasonably
segregable material. See Def.’s Mot., Suppl. Decl. of Christina Hamblen, ECF No. 41-3, ¶¶ 8–
16; Def.’s First Mot. for Partial Summ. J., Decl. of Adrienne Martin, ECF No. 22-1, ¶¶ 15–16, 26;
see also Suppl. Martin Decl. (elaborating on the three categories of names withheld in the
For the reasons set forth above, Defendant’s Renewed Motion for Summary Judgment is
granted in part and denied in part, and Plaintiff’s Renewed Cross-Motion for Summary Judgment
is granted in part and denied in part.
A separate Order accompanies this Memorandum Opinion.
Dated: January 12, 2018
Amit P. Mehta
United States District Judge
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