CREW v. DOJ ( 2023 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 20, 2022 Decided January 31, 2023
No. 21-5276
CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON,
APPELLANT
v.
UNITED STATES DEPARTMENT OF JUSTICE,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:19-cv-03626)
Jessica A. Lutkenhaus argued the cause for appellant.
With her on the briefs were Nikhel S. Sus and Ari Holtzblatt.
John Davisson was on the brief for amici curiae the
Electronic Privacy Information Center and the Electronic
Frontier Foundation in support of appellant.
Khahilia Y. Shaw and Mehreen A. Rasheed were on the
brief for amicus curiae American Oversight in support of
appellant.
Amanda L. Mundell, Attorney, U.S. Department of Justice,
argued the cause for appellee. With her on the brief were Sarah
2
E. Harrington, Deputy Assistant Attorney General, and
Michael S. Raab, Attorney.
Before: PILLARD and CHILDS, Circuit Judges, and
SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge PILLARD.
Opinion concurring in the judgment filed by Senior Circuit
Judge SENTELLE.
PILLARD, Circuit Judge: In 2019, the Department of
Justice announced that it would resume federal executions
using a new lethal agent: the drug pentobarbital. Shortly
thereafter, Citizens for Responsibility and Ethics in
Washington submitted a Freedom of Information Act (FOIA)
request for the Bureau of Prisons’ records related to its
procurement of pentobarbital. The Bureau of Prisons supplied
some records but withheld any information that could identify
companies in the government’s pentobarbital supply chain.
The Bureau invoked FOIA Exemption 4, which protects,
among other things, trade secrets and confidential commercial
information. The district court sustained those withholdings
and entered judgment for the Bureau.
We conclude on de novo review that the Bureau of Prisons
has not met its burden to justify the challenged nondisclosures.
In particular, the Bureau has not provided the detailed and
specific explanation required to justify withholding the
information as “commercial” and “confidential” under
Exemption 4. We thus reverse and remand the case to the
district court for further proceedings.
3
BACKGROUND
On July 25, 2019, the Department of Justice (Department)
announced that it would resume federal executions after a
nearly two-decade hiatus. The Department adopted an
addendum to the existing federal execution protocol to specify
a different lethal agent. It then scheduled executions for
several federal inmates.
In lieu of the three-drug procedure used in the past, the
addendum authorized a new execution procedure using a lethal
dose of a single drug—pentobarbital. A bulk manufacturer of
the active pharmaceutical ingredient for pentobarbital, as well
as a compounding pharmacy, agreed to contract with the
Bureau of Prisons (Bureau) to make an injectable solution.
Independent laboratories agreed to conduct quality-control
testing on the drug.
The Bureau ultimately used pentobarbital to execute 13
people between July 2020 and January 2021. In December
2020, the Department amended its regulations to authorize
methods of execution other than lethal injection. See 28 C.F.R.
§ 26.3(a)(4). But then, in July 2021, the Department
announced a moratorium on federal executions.
Meanwhile, Citizens for Responsibility and Ethics in
Washington (CREW) was seeking records on the federal
government’s procurement of pentobarbital, pentobarbital
sodium, and/or Nembutal, which we here collectively refer to
as “pentobarbital.” Less than a month after the Justice
Department announced its July 2019 addendum to the
execution protocol, CREW sent a FOIA request to the Bureau
of Prisons, asking for “all records from February 14, 2019 to
the present related to the procurement of pentobarbital,
pentobarbital sodium, or Nembutal to be used in federal
executions, including without limitation any notifications to or
4
communications with vendors, solicitation information,
requests for information, subcontracting leads, and contract
awards.” Aug. 8, 2019, FOIA Request to Bureau of Prisons
(J.A. 284). CREW submitted a similar FOIA request to the
Justice Department, which is not at issue here.
The Bureau of Prisons conducted a search and found 56
pages of non-email records that were responsive to CREW’s
request, as well as 1,095 responsive email records, of which
848 were duplicative. The Bureau initially deemed all
responsive records categorically exempt from disclosure under
several FOIA exemptions: Exemption 4 (confidential
commercial information), Exemption 5 (privileged material),
Exemption 6 (material invading personal privacy), and
Exemption 7 (material compiled for law enforcement
purposes). See 5 U.S.C. § 552(b)(4)-(7).
CREW filed an administrative appeal and, when the
Bureau did not respond, sued the Bureau in district court. With
the suit pending before the district court, the parties narrowed
their dispute to a subset of the responsive records. The Bureau
withheld documents pursuant to Exemption 7(E), which
applies to “records or information compiled for law
enforcement purposes, but only to the extent that the
production of such law enforcement records or information . . .
would disclose techniques and procedures for law enforcement
investigations or prosecutions . . . if such disclosure could
reasonably be expected to risk circumvention of the law.” 5
U.S.C. § 552(b)(7). The district court granted summary
judgment for CREW on the Exemption 7(E) withholdings,
which the Bureau has not appealed.
The Bureau also continued to withhold under Exemption
4—which protects confidential commercial information from
disclosure—any documents disclosure of which could reveal
5
the identity of its pentobarbital contractors. The information
withheld under Exemption 4 included the names of the
Bureau’s contractors as well as key terms from its pentobarbital
contracts such as drug price, quantity, expiration dates,
invoices, container units, lot numbers, purchase
order/reference numbers, substance descriptions, drug
concentration, and dates of purchase, service, and/or delivery.
To justify its withholdings, the Bureau submitted declarations
from a Bureau information specialist, Kara Christenson, and
one of its attorneys, Rick Winter. It did not provide
declarations or affidavits from the contractors themselves.
The district court granted summary judgment for the
Bureau on its Exemption 4 withholdings, concluding that the
withheld identifying information was both “commercial” and
“confidential” as required under Exemption 4. The court
determined that the withheld information was “commercial”
because disclosing the contractors’ identities could subject the
contractors to harassment, cost them business, or cause them to
exit the market for pentobarbital altogether. The information
was also “confidential” because, at the pentobarbital
contractors’ request, the government agreed to keep the
contractors’ identities confidential to the greatest extent
possible under law, and the companies themselves have
typically kept the information private. CREW timely appealed.
After CREW filed its opening brief in this appeal, the
Bureau discovered that seven records withheld in full were
already available in the public domain with only limited
redactions. Those documents had been filed publicly, with
partial redactions of confidential commercial information, as
part of the administrative record in other litigation over the
Bureau’s lethal-injection protocol. See Dkt. No. 39-1, In re
Fed. Bureau of Prisons’ Execution Protocol Cases, No. 1:19-
mc-00145 (D.D.C. Nov. 13, 2019). On discovering the earlier
6
disclosure, the Bureau gave the relevant pages of that
administrative record to CREW.
DISCUSSION
We review the district court’s grant of summary judgment
in a FOIA case de novo. Pavement Coatings Tech. Council v.
U.S. Geological Surv., 995 F.3d 1014, 1020-21 (D.C. Cir.
2021). On appeal, CREW argues that the Bureau has not
adequately demonstrated how information that could identify
its pentobarbital contractors is confidential commercial
information within the meaning of FOIA Exemption 4. CREW
also claims that, because the Bureau has already publicly
disclosed certain purportedly identifying information, it has
waived the application of Exemption 4 with respect to that
same information in other documents. We consider those
arguments in turn.
I. Exemption 4
FOIA is “designed ‘to pierce the veil of administrative
secrecy and to open agency action to the light of public
scrutiny.’” U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991)
(quoting Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976)).
The Act requires federal agencies to disclose records to the
public on request unless a record is protected by one of nine
statutory exemptions. See 5 U.S.C. § 552(b). “[T]hese limited
exemptions do not obscure the basic policy that disclosure, not
secrecy, is the dominant objective of the Act.” Nat’l Ass’n of
Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002)
(quoting Rose, 425 U.S. at 361). The FOIA exemptions must
be “narrowly construed,” Milner v. Dep’t of Navy, 562 U.S.
562, 565 (2011) (quoting FBI v. Abramson, 456 U.S. 615, 630
(1982)), even though they “are as much a part of FOIA’s
purposes and policies as the statute’s disclosure requirement,”
Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2366
7
(2019) (formatting modified) (quoting Encino Motorcars, LLC
v. Navarro, 138 S. Ct. 1134, 1142 (2018)).
The agency bears the burden to justify nondisclosure under
any exemption it asserts, Ray, 502 U.S. at 173, and ordinarily
may carry that burden by submitting declarations “attesting to
the basis for the agency’s decision,” Campbell v. U.S. Dep’t of
Just., 164 F.3d 20, 30 (D.C. Cir. 1998), as amended on denial
of reh’g (Mar. 3, 1999). “Summary judgment is warranted on
the basis of agency affidavits when the affidavits describe the
justifications 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.” Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir.
2009) (quoting Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir.
1984)).
Exemption 4, the sole exemption at issue on appeal, allows
federal agencies to withhold “trade secrets and commercial or
financial information obtained from a person and privileged or
confidential.” 5 U.S.C. § 552(b)(4). When an agency
withholds non-trade-secret information under Exemption 4, it
must demonstrate that the withheld information is
“(1) commercial or financial, (2) obtained from a person, and
(3) privileged or confidential.” Pub. Citizen Health Rsch.
Grp. v. FDA, 704 F.2d 1280, 1290 (D.C. Cir. 1983).
The Bureau asserts that Exemption 4 applies here to
certain withheld “commercial and financial information, as
well as to identifying information.” Christenson Decl. ¶ 43
(J.A. 110-11). The Bureau claims entitlement to withhold “any
information that could lead to the identity” of its pentobarbital
suppliers or of individuals or companies that “performed
related critical services on that [p]entobarbital supply,”
8
asserting that those individuals or companies “have typically
kept [such identifying information] private.” Id. ¶¶ 48, 51 (J.A.
111-12).
CREW’s challenge is a narrow one, focused on just a
subset of the Bureau’s Exemption 4 withholdings. CREW does
not appeal the Bureau’s withholding of clearly commercial
information, such as “price and contract term negotiations” and
“pricing and business strategies,” id. ¶ 49 (J.A. 112), which fall
neatly within Exemption 4. Nor does CREW dispute that any
of the withheld information was “obtained from a person.” 5
U.S.C. § 552(b)(4); see id. § 551(2).
CREW instead zeroes in on two deficiencies it sees in the
Bureau’s claim of exemption. First, it asserts that the names of
the Bureau’s contractors cannot be “commercial . . .
information” as contemplated by Exemption 4. Id. § 552(b)(4).
Second, it argues that the Bureau has not met its burden to
demonstrate that certain key contract terms, such as drug
quantities and expiration dates, could in fact reveal the
contractors’ identities such that they are “confidential”
commercial information. Id. Importantly, CREW disputes the
commercial nature of only the contractors’ names (not the
contract terms) and disputes the confidentiality of only the
requested contract terms (not the names). In other words,
CREW does not dispute that certain Exemption 4 requirements
are met—in particular, that the names are confidential and that
the contract terms are commercial. We begin then with
whether the contractors’ names are “commercial . . .
information,” before turning to whether the Bureau has
justified withholding certain contract terms as “confidential”
on the ground that they are identifying.
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a. Whether the contractors’ names are
“commercial . . . information”
Under Exemption 4, the Bureau seeks to withhold the
names of contractors involved in the government’s
procurement and testing of pentobarbital. Again, CREW does
not challenge that those names are “confidential” or that they
were “obtained from a person.” CREW asserts only that the
agency fails to meet its burden to demonstrate that the
contractors’ names are “commercial . . . information.”
We hold that the Bureau has not met its burden to justify
nondisclosure of the contractors’ names. To withhold them
under Exemption 4, the government must demonstrate that the
names are commercial in and of themselves—a showing that
the Bureau here has not made. The Bureau instead reads
Exemption 4 to apply whenever disclosure of confidential
information, regardless of its character, could have commercial
or financial repercussions. But that reading disregards the text
of Exemption 4, the structure, history, and purpose of FOIA,
and longstanding Exemption 4 precedent.
Our consideration of Exemption 4 “starts with its text.”
Milner, 562 U.S. at 569; see also Argus Leader, 139 S. Ct. at
2364. Under the plain text of Exemption 4, the term
“commercial” modifies the word “information.” 5 U.S.C.
§ 552(b)(4). “Adjectives modify nouns—they pick out a subset
of a category that possesses a certain quality.” Weyerhaeuser
Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361, 368 (2018).
The use of such a modifier in Exemption 4 “clearly marks the
provision’s boundaries.” Milner, 562 U.S. at 569. It signals
that Exemption 4 does not cover all confidential information,
but rather the subset of such information that is itself
commercial. See Weyerhaeuser, 139 S. Ct. at 368.
10
We have explained that, under Exemption 4, information
must be commercial “in and of itself,” meaning it “serves a
‘commercial function’ or is of a ‘commercial nature.’” Norton,
309 F.3d at 38 (quoting Am. Airlines, Inc. v. Nat’l Mediation
Bd., 588 F.2d 863, 870 (2d Cir. 1978)). Because FOIA does
not define the word “commercial,” we have given that term its
ordinary meaning. Id. And, in ordinary parlance, information
is commercial if it pertains to the exchange of goods or services
or the making of a profit. See Webster’s Third New
International Dictionary 456 (1966) (defining “commercial” to
mean “of, in, or relating to commerce” or “having profit as the
primary aim”); id. (defining “commerce” to mean “the
exchange or buying and selling of commodities esp. on a large
scale and involving transportation from place to place”);
Webster’s New World Dictionary 294 (1968) (defining
“commercial” to mean “of, or connected with commerce” or
“made or done primarily for sale or profit”).
Given the ordinary meaning of “commercial,” Exemption
4 paradigmatically applies to records that a business owner
customarily keeps private because they “actually reveal basic
commercial operations, such as sales statistics, profits and
losses, and inventories, or [that] relate to the income-producing
aspects of a business.” Pub. Citizen, 704 F.2d at 1290. The
exemption “applies (among other situations) when the provider
of the information has a commercial interest in the information
submitted to the agency.” Baker & Hostetler LLP v. U.S. Dep’t
of Com., 473 F.3d 312, 319 (D.C. Cir. 2006). Indeed, in
enacting FOIA, Congress sought to shield from public release
intrinsically valuable business information such as “business
sales statistics, inventories, customer lists, and manufacturing
processes.” S. Rep. No. 89-813, at 9 (1965); see also H.R. Rep.
No. 89-1497, at 10 (1966) (similar).
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While the exemption is “not confined” to information
“‘relate[d] to the income-producing aspects of a business,’”
Baker & Hostetler, 473 F.3d at 319 (emphasis omitted)
(quoting Pub. Citizen, 704 F.2d at 1290), its reach is finite. As
we have long recognized, “not every bit of information
submitted to the government by a commercial entity qualifies
for protection under Exemption 4.” Pub. Citizen, 704 F.2d at
1290.
In particular, Exemption 4 does not cover all information
the public disclosure of which could inflict commercial harm.
The exemption’s text, especially when read in statutory
context, confirms as much. Unlike other FOIA exemptions
enacted at the same time, Exemption 4 does not make potential
consequences of disclosure an explicit ground for withholding.
Take Exemption 6, which protects “personnel and medical files
and similar files the disclosure of which would constitute a
clearly unwarranted invasion of personal privacy.” 5 U.S.C.
§ 552(b)(6) (emphasis added). Similarly, Exemption 7 applies
to “records or information compiled for law enforcement
purposes, but only to the extent that the production of such law
enforcement records or information” has specific statutorily
enumerated consequences. Id. § 552(b)(7) (emphasis added).
By their own terms, Exemptions 6 and 7 require the
government to consider how disclosure might have certain
statutorily enumerated repercussions. Exemption 4 contains no
such language; it protects only information that is itself a “trade
secret[]” or “commercial or financial information obtained
from a person and privileged or confidential.” Id. § 552(b)(4).
If the requirement that information be “commercial or
financial” were satisfied by commercial or financial
consequences alone, Congress could have crafted a different
exemption, akin to Exemptions 6 and 7. It could have
protected, for instance, “information obtained from a person
which is privileged or confidential, the disclosure of which
12
could affect a commercial or financial interest.” But Congress
did not do so, and we must give effect to the language Congress
chose.
Just as Exemption 4 does not protect against any and all
commercial harm, it does not directly protect against asserted
harm to the government as a result of public scrutiny following
disclosure. The Bureau warns that advocacy by death penalty
opponents has made it difficult for governments to acquire
pentobarbital for use in executions, implying that further
disclosure will only compound that difficulty. See Christenson
Decl. ¶ 57 (J.A. 114). But that possibility does not itself render
Exemption 4 applicable. The Bureau concedes as much. See
Oral Argument at 30:48-56. After all, the text of Exemption 4
does not in any way refer to the government’s interests. In that
regard, it contrasts markedly with Exemption 7(A), for
instance, which protects certain law enforcement records to the
extent their production “could reasonably be expected to
interfere with enforcement proceedings.” Compare 5 U.S.C.
§ 552(b)(7)(A), with id. § 552(b)(4). To the extent that
Congress shares the Bureau’s concern about its ability to find
willing contractors to supply drugs for use in executions,
Congress could of course legislate—as several states have
done—that the government keep confidential the identities of
any entities involved in the lethal injection process. See, e.g.,
Ark. Code Ann. § 5-4-617(h)(i)(1)(B); Miss. Code Ann.
§ 99-19-51(3)(c), (4); Tex. Code Crim. Proc. Ann. art.
43.14(b)(2). But, again, Congress has not done so. In the
absence of any such legislation, our “judicial role is to enforce”
the balance Congress struck in enacting FOIA, rather than
“expand (or contract) an exemption” on a case-by-case basis.
Milner, 562 U.S. at 571 n.5.
Informed by Exemption 4’s plain text, statutory context,
and history, we take further guidance from our precedent
13
interpreting and applying the line between commercial and
noncommercial information. In evaluating Exemption 4
withholdings, we have consistently looked to whether
information is commercial “in and of itself,” meaning it “serves
a ‘commercial function’ or is of a ‘commercial nature.’”
Norton, 309 F.3d at 38 (quoting Am. Airlines, 588 F.2d at 870).
We have read Exemption 4 to cover only information that, in
and of itself, demonstrably pertains to the exchange of goods
or services or the making of a profit.
We have defined commercial information to include, for
example, a firm’s data or reports on its commercial service or
its product’s favorable or unfavorable attributes, see, e.g., Pub.
Citizen, 704 F.2d at 1290; Critical Mass Energy Project v.
Nuclear Regul. Comm’n, 830 F.2d 278, 279-81 (D.C. Cir.
1987), vacated on other grounds, 975 F.2d 871 (1992) (en
banc), or information an industry has gathered regarding its
competitive strengths and weaknesses, see, e.g., Baker &
Hostetler, 473 F.3d at 319. In so doing, we have looked to the
nature of the information itself. Consider Public Citizen, in
which we held that health and safety data that medical device
manufacturers submitted to the Food and Drug Administration
were commercial information. 704 F.2d at 1290. We there
reasoned that the manufacturers “clear[ly]” had a “commercial
interest” in the information itself, which “document[ed] . . . the
health and safety experience of their products” and would thus
“be instrumental in gaining marketing approval for their
products.” Id. Likewise, in Critical Mass we readily
concluded that nuclear plant safety reports prepared by a utility
industry consortium were commercial information. 830 F.2d
at 279-80. To reach that conclusion, we examined the
“character of the information” in the reports; the information
we identified as commercial included “details of the operations
of [utility companies’] nuclear power plants,” “apprais[als]” of
the products of certain vendors, and descriptions of “health and
14
safety problems experienced during the operation of nuclear
power facilities.” Id. at 281.
Conversely, the government may not rely on Exemption 4
where the withheld information only tenuously or indirectly
concerns the exchange of goods or services or the making of a
profit. See, e.g., Norton, 309 F.3d at 38-39; Wash. Rsch.
Project v. Dep’t of Health, Educ. & Welfare, 504 F.2d 238,
244-45 (D.C. Cir. 1974); Getman v. NLRB, 450 F.2d 670, 673
(D.C. Cir. 1971). For instance, in Norton we held that
Exemption 4 did not apply to owl-sighting data created through
a partnership between the U.S. Fish and Wildlife Service and a
state agency. 309 F.3d at 38-39. We explained that, even
though the state agency conditioned the Service’s database
access on the state agency’s receipt of federal funds, the data
exchange did “not constitute a commercial transaction in the
ordinary sense” because the state was “forbidden by statute to
sell the owl-sighting data,” the data were not created “in
connection with a commercial enterprise,” and there was “no
evidence that the parties who supplied the owl-sighting
information ha[d] a commercial interest at stake in its
disclosure.” Id. Similarly, in Washington Research Project,
we concluded that Exemption 4 did not apply to a scientist’s
research designs as submitted in federal grant applications,
because it “defie[d] common sense to pretend that the scientist
is engaged in trade or commerce.” 504 F.2d at 244. And in
Getman, we held that a “bare list” of the names and addresses
of employees eligible to vote in certain union representation
elections “cannot be fairly characterized” as commercial,
making Exemption 4 “[o]bviously” inapplicable. 450 F.2d at
673.
Cognizant of the statutory terms and precedents that bind
us, we turn to the question presented here: whether the withheld
names of the Bureau’s pentobarbital contractors are
15
“commercial” information within the meaning of Exemption 4.
Perhaps not surprisingly, we have never considered whether
Exemption 4 applies to a business’s name. After all, most
businesses—unlike, apparently, the contractors here—eagerly
disclose their names, whether to publicize their identities,
develop their brands, register their names as trademarks, or use
them as website domains. And, where business names are not
customarily and actually kept private, they are not in any case
confidential commercial information that may be withheld
under Exemption 4. See Argus Leader, 139 S. Ct. at 2363-66.
That pervasive reality is no obstacle here because, as noted
above, CREW challenges only the commercial character of the
contractors’ names, not their confidentiality.
The Bureau seeks to justify withholding the contractors’
names because, if they were disclosed, the contractors could
face public opprobrium aimed at discouraging them from
providing pentobarbital for use in executions, which in turn
might hurt the contractors’ business or cause them to
voluntarily exit the pentobarbital market. See Christenson
Decl. ¶¶ 43-60 (J.A. 110-15). According to the Bureau, its
suppliers are “well aware” that businesses “are commonly
subject to harassment, threats, and negative publicity leading
to commercial decline when it is discovered that they are
providing substances to be used in implementing the death
penalty.” Id. ¶ 52 (J.A. 112-13). The Bureau describes how
one pharmacy demanded that a state prison system return its
drugs once the public discovered the state was using them for
executions, id. ¶ 53 (J.A. 113), how another company exited
the market for a lethal substance after a concerted campaign by
anti-death penalty advocates, id. ¶ 56 (J.A. 114), and how
difficult it has become for state and federal government
agencies in the United States to find suppliers for lethal
injections, see id. ¶ 57 (J.A. 114-15).
16
On its own terms, the Bureau’s claim of exemption suffers
from some shortcomings. First, the Bureau’s own declarations
cast at least some doubt on its claim that the contractors’ names
are commercial information. In one of its declarations, the
Bureau stated that it applied Exemption 4 to “commercial and
financial information, as well as to identifying information” in
the requested records. Id. ¶ 43 (J.A. 110-11) (emphasis added).
It makes little sense to treat “identifying information” as a
distinct category from “commercial and financial” information
unless identifying information is not necessarily commercial in
and of itself.
Second, the Bureau conflates the “commercial” and
“confidential” inquiries under Exemption 4. The Bureau’s own
declarations make clear that the risk of public outrage is why
“[t]his [identifying] information is kept private.” Id. ¶ 52 (J.A.
112). But the fact that a business’s name is kept private shows
only that it may be “confidential”—and CREW does not
dispute that the contractors and the government have so treated
the names of the contractors at issue here. See Argus Leader,
139 S. Ct. at 2366. It is not enough under Exemption 4,
however, for information to be “confidential.” We would
“torture[] the plain meaning of Exemption (4)” to apply it to
“any information given [to] the [g]overnment in confidence.”
Getman, 450 F.2d at 673; cf. Dep’t of Interior v. Klamath
Water Users Protective Ass’n, 532 U.S. 1, 9, 12 (2001). The
information must also be commercial in its own right. Norton,
309 F.3d at 38.
Third, the Bureau claims that companies are exiting the
market for lethal injection drugs as a result of activist pressure,
but its cited examples show that companies have exited or
decided against participating in the lethal injection market for
various reasons, not all of them commercial. A Danish
manufacturer of pentobarbital stopped selling it for use in
17
executions because “[t]hat manufacturer opposed the death
penalty.” Glossip v. Gross, 576 U.S. 863, 871 (2015); see also
Christenson Decl. ¶ 56 (J.A. 114). A German manufacturer of
propofol, a drug incorporated in Missouri’s execution protocol,
no longer sells the drug for executions out of concern that the
European Union would ban all exports of the drug for any
purpose if it were ever used in executions. See Kevin Murphy,
German firm blocked shipments to U.S. distributor after drug
sent for executions, REUTERS (Oct. 10, 2013, 10:57 PM),
https://perma.cc/963D-P5WU; Christenson Decl. ¶ 113 (J.A.
133) (citing the Murphy article); DOJ Br. 23-24. And one
testing laboratory publicly announced that it would not test
pentobarbital for use in executions after it learned that it had
“unknowingly been testing pentobarbital” for use as a lethal
agent, despite the laboratory’s longstanding “refus[al] to do
so.” E. Michael Pruett & Russell Odegard, Testing
Pentobarbital, DYNALABS (July 10, 2020),
https://perma.cc/MD96-ZC6C; see Christenson Decl. ¶ 118
(J.A. 135-36). The Bureau thus ignores the degree to which
reasons other than commercial effects of public outcry have
prompted companies to exit the pentobarbital market.
Even apart from those evidentiary shortcomings, the
Bureau’s claim of exemption fails for an antecedent,
independent reason: The Bureau does not explain in any detail
how a contractors’ name is commercial “in and of itself”—that
is, how the name “serves a ‘commercial function’ or is of a
‘commercial nature.’” Norton, 309 F.3d at 38 (quoting Am.
Airlines, 588 F.2d at 870). Instead, the Bureau rests its claim
of exemption exclusively on the potential commercial
consequences of disclosure, asserting that the contractors could
face public hostility and resulting economic harm if their
names were disclosed. At oral argument, the Bureau went
further to claim that Exemption 4 covers any confidential
information the disclosure of which could have commercial
18
consequences, positive or negative. Oral Argument at 22:09-
19.
But the commercial consequences of disclosure are not on
their own sufficient to bring confidential information within the
protection of Exemption 4 as “commercial.” As discussed
above, such an approach is at odds with the text and context of
Exemption 4 and our own precedent. See supra at 11-14. And
it would stretch Exemption 4 to cover nearly any information
that a business and the government agreed to keep secret,
vitiating FOIA’s ability to shine light on public contracting.
Indeed, the Bureau’s approach subverts the very purposes
that Congress enacted FOIA to serve. The Bureau claims that
the contractors’ names should be exempt from disclosure
because, as a result of significant public interest in those names,
disclosure could cause the contractors to face criticism that
might, in turn, cause them to suffer financially. Far from
“open[ing] agency action to the light of public scrutiny,” Ray,
502 U.S. at 173 (quoting Rose, 425 U.S. at 361), that theory of
exemption converts “public scrutiny” into a potential basis for
withholding information. Under the Bureau’s approach,
whenever public scrutiny might have reputational
repercussions with potential knock-on commercial effects, the
government and a contractor could shield information from
public view simply by agreeing to keep it secret. That is not
what Congress had in mind when it protected “citizens’ right
to be informed about ‘what their government is up to.’” Id. at
177 (quoting Dep’t of Just. v. Reporters Comm., 489 U.S. 749,
773 (1989)).
With little else to justify its Exemption 4 withholdings, the
Bureau seeks support in acontextual readings of stray sentences
from our past decisions. The Bureau leans on Baker &
Hostetler and Critical Mass, where we noted as relevant under
19
Exemption 4 that the “commercial fortunes” of a business
“could be materially affected by the disclosure.” Baker &
Hostetler, 473 F.3d at 319 (quoting Critical Mass, 830 F.2d at
281). The Bureau also points to Norton, where we considered
in part whether the parties submitting owl-sighting information
had a “commercial interest at stake in its [non]disclosure.” 309
F.3d at 39. But cf. Pub. Citizen, 704 F.2d at 1290 (evaluating
whether medical device manufacturers had a “commercial
interest in the requested information” without regard to any
potential consequences of disclosure). Those decisions
identify commercial harms a business might suffer following
disclosure as confirmation of the commercial or
noncommercial nature of the information itself. They do not
treat such consequences alone as sufficient to establish that
information is “commercial” under Exemption 4.
Our cases consistently consider whether the information in
and of itself has a commercial nature or serves a commercial
function. See Norton, 309 F.3d at 38; supra at 12-14. Baker &
Hostetler is illustrative. There, we held that letters submitted
to the government on behalf of American lumber companies in
connection with a trade dispute were confidential commercial
information. Baker & Hostetler, 473 F.3d at 318-320. In
reaching that conclusion, we first described the commercial
content of the letters themselves: The letters detailed the
“commercial strengths and weaknesses of the U.S. lumber
industry,” the effect of potential trade measures “on the
commercial activities and competitive position of domestic
lumber companies,” the “requirements for achieving a
competitive . . . lumber market,” the “competitive challenges
that domestic lumber companies face[d],” and the industry’s
views and recommendations regarding negotiations in the
U.S.-Canada lumber trade dispute. Id. at 319. The fact that
“disclosure would help rivals to identify and exploit” the
American lumber industry’s “competitive weaknesses” only
20
reinforced that those letters contained commercial information.
Id. at 320. Put otherwise, we highlighted the commercial
consequences of disclosure only to confirm what we had
already found apparent from the letters themselves: that they
contained “commercial . . . information.”
In sum, the Bureau does not attempt to show that its
contractors’ names are “commercial” in and of themselves, but
instead reasons by example to suggest the contractors will
suffer commercial harm on disclosure. Heeding the Supreme
Court’s command to give FOIA exemptions a “narrow
compass,” Milner, 562 U.S. at 571 (quoting U.S. Dep’t of Just.
v. Tax Analysts, 492 U.S. 136, 151 (1989)), we reaffirm that
withheld information must be commercial in and of itself to
qualify for withholding under Exemption 4; that disclosure
might cause commercial repercussions does not suffice to show
that information is “commercial” under Exemption 4. Because
the Bureau impermissibly relies solely on the downstream
opposition that the pentobarbital contractors might suffer on
disclosure of their names, we need not now decide whether or
under what other circumstances a business name might itself
be “commercial . . . information” for purposes of Exemption 4.
We reverse and remand for further proceedings because
the Bureau has not provided “detailed and specific information
demonstrating ‘that material withheld is logically within the
domain of’” Exemption 4. Campbell, 164 F.3d at 30 (quoting
King v. U.S. Dep’t of Just., 830 F.2d 210, 217 (D.C. Cir. 1987)).
On remand, the district court may require supplemental
affidavits to help it determine whether the contractors’ names
demonstrably pertain to the exchange of goods or services or
the making of a profit, such that they may be withheld under
Exemption 4. See Pavement Coatings, 995 F.3d at 1024. What
matters is whether the contractors’ names in and of themselves
are commercial or noncommercial, not whether the names
21
might reveal the existence of a contract likely to attract public
scrutiny.
b. Whether key contract terms are “confidential”
CREW also challenges the Bureau’s Exemption 4
withholding of so-called “key contract terms”—namely, drug
prices, quantities, expiration dates, invoices, container units,
lot numbers, purchase order/reference numbers, substance
descriptions, drug concentrations, and dates of purchase,
service, and/or delivery. The Bureau asserts that disclosing
those terms could reveal the identities of individuals and
companies involved in the procurement of pentobarbital.
CREW does not dispute that those terms are “commercial” and
were “obtained from a person”; it challenges only whether the
Bureau has met its burden of showing those terms are
“confidential.”
To address that claim, we begin with the meaning of the
word “confidential,” which the Supreme Court recently
clarified in Argus Leader. Argus Leader considered two
conditions that might be required for information provided to
the government to be confidential within the meaning of
Exemption 4: (1) that information is “customarily kept private,
or at least closely held, by the person imparting it,” and (2) that
“the party receiving [the information] provides some assurance
that it will remain secret.” 139 S. Ct. at 2363. The Court held
that at least the first condition must be met, reasoning that “it
is hard to see how information could be deemed confidential if
its owner shares it freely.” Id. In Argus Leader, the
government met that condition with uncontested testimony that
the businesses providing the information to the government
“customarily do not disclose [it] or make it publicly available
‘in any way.’” Id. As to the second possible condition, the
Court held that it need not consider whether privately held
22
information might “lose its confidential character for purposes
of Exemption 4 if it’s communicated to the government
without assurances that the government will keep it private,”
because such assurances had been provided. Id. We likewise
do not decide whether the second condition must be met,
because CREW does not dispute the point for purposes of this
appeal.
Ordinarily then, to justify Exemption 4 withholding, the
government must at least demonstrate that the withheld
information itself is “customarily and actually treated as private
by its owner.” Id. at 2366. Here, that would mean showing
that the contractors customarily and actually maintain in
secrecy their drug prices, expiration dates, and other withheld
contract terms.
But in its declarations the Bureau did not attempt to make
that showing directly, instead taking a different and
unconventional tack. It first asserted that it withheld certain
contract terms because they “could lead to the identity of”
individuals or companies involved in its pentobarbital supply,
and, second, claimed that the information “described above”—
that is, the potentially identifying information—“is
confidential” because the pentobarbital contractors “have
typically kept it private, have specifically designated the
information as proprietary and/or confidential,” and have asked
the government to maintain the same confidentiality “to the
greatest extent possible under the law.” Christenson Decl.
¶¶ 48, 51 (J.A. 111, 112). In other words, the Bureau did not
seek to show the confidentiality of the contract terms as such;
it predicated its claim of confidentiality wholly on their
potential to identify the contractors.
Again, CREW’s claim regarding the contract terms is
circumscribed. CREW does not dispute that the contractors
23
“customarily and actually” keep identifying information
private, as Argus Leader held is required for Exemption 4. 139
S. Ct. at 2366. CREW instead argues that the Bureau’s theory
places contract terms “logically within the domain” of
Exemption 4 only to the extent they could reveal the
contractors’ identities. Campbell, 164 F.3d at 30 (quoting
King, 830 F.2d at 217). In other words, CREW accepts that
any contract terms that are identifying are “confidential” under
the Bureau’s claim of exemption. Indeed, CREW already
conceded before the district court that some contract terms,
such as company logos and company brochures, could plainly
identify the contractors and are therefore “confidential” under
the Bureau’s theory. See Christenson Decl. ¶ 48 (J.A. 111-12).
But as to contract terms that are not identifying—whether in
isolation or in combination with other terms—the Bureau has
offered no other reason to believe they fall within the
exemption. On appeal, CREW thus asserts entitlement only to
those contract terms for which the Bureau has not provided
“detailed and specific information” showing that they are in
fact identifying. Campbell, 164 F.3d at 30.
The district court concluded that the Bureau need not
explain how any contract term is identifying, because under
Exemption 4, “[c]ompanies need not justify why they keep
information confidential.” Citizens for Resp. & Ethics in Wash.
v. U.S. Dep’t of Just., 567 F. Supp. 3d 204, 214 (D.D.C. 2021).
The Bureau makes a similar argument on appeal. It is true that,
in general, the government needs to show that information is
“customarily and actually treated as private by its owner,” not
necessarily why it is so treated. Argus Leader, 139 S. Ct. at
2366. But that sidesteps the crux of CREW’s argument. The
issue is not why any particular information is confidential, but
rather, whether it is confidential given the Bureau’s declarants’
only claim: that the contractors keep identifying information
private.
24
It is well established under our precedent that “[t]o justify
summary judgment, a declaration must provide detailed and
specific information demonstrating ‘that material withheld is
logically within the domain of the exemption claimed.’”
Campbell, 164 F.3d at 30 (quoting King, 830 F.2d at 217).
Here, the withheld contract terms are logically within the
domain of the Bureau’s Exemption 4 claim only to the extent
they constitute “information that could lead to the identity of”
individuals or companies in the Bureau’s pentobarbital supply
chain. Christenson Decl. ¶ 48 (J.A. 111). Because the Bureau
chose to structure its exemption claim in two steps—that is,
asserting first that the contractors keep identifying information
private and second that the contract terms are identifying—
particular contract terms are appropriately withheld under
Exemption 4 only to the extent both steps have been
demonstrated to the district court’s satisfaction.
Therefore, to meet its burden to justify withholding, the
Bureau must persuade the district court to hold that “detailed
and specific information” demonstrates that the contract terms
could in fact reveal the identities of the Bureau’s pentobarbital
contractors. Campbell, 164 F.3d at 30. It cannot rely on
“conclusory,” “vague,” or “sweeping” assertions as to their
identifying power. Id. (quoting Hayden v. Nat’l Sec. Agency,
608 F.2d 1381, 1387 (D.C. Cir. 1979)).
Because the district court did not require the Bureau to
explain how the contract terms are identifying, we reverse and
remand for further proceedings consistent with this opinion.
On remand, the district court should determine whether the
Bureau has carried its burden of demonstrating that the
withheld contract terms are in fact identifying. Should the
district court conclude that any identifying information is
appropriately withheld under Exemption 4, it should also make
an express finding as to whether portions of the withheld
25
documents are reasonably segregable. See Trans-Pac. Policing
Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1028 (D.C.
Cir. 1999).
II. Waiver
Finally, CREW contends that the Bureau waived the
application of Exemption 4 with respect to certain contract
terms that are already in the public domain. While preparing
its response to CREW’s opening brief, the Bureau discovered
that it had previously released some drug-concentration and
expiration-date information as part of the administrative record
in other litigation over its execution protocol. See Dkt. No.
39-1, In re Fed. Bureau of Prisons’ Execution Protocol Cases,
No. 1:19-mc-00145 (D.D.C. Nov. 13, 2019). The Bureau has
provided those already-disclosed records to CREW. But
CREW argues that the Bureau has waived its Exemption 4
withholdings as to the same information in other documents.
CREW’s claim to additional records containing drug-
concentration and expiration-date information rests on our
public-domain doctrine. Under that doctrine, “materials
normally immunized from disclosure under FOIA lose their
protective cloak once disclosed and preserved in a permanent
public record.” Cottone v. Reno, 193 F.3d 550, 554 (D.C. Cir.
1999); see also CNA Fin. Corp. v. Donovan, 830 F.2d 1132,
1154 (D.C. Cir. 1987). The doctrine flows from “‘the logic of
FOIA’” because “where information requested ‘is truly public,
then enforcement of an exemption cannot fulfill its purposes.’”
Cottone, 193 F.3d at 554 (quoting Niagara Mohawk Power
Corp. v. U.S. Dep’t of Energy, 169 F.3d 16, 19 (D.C. Cir.
1999)). We have thus applied the public-domain doctrine
across a range of FOIA exemptions to require disclosure of
information already in the public domain even if it otherwise
would have been exempt. See id.26
As the party advocating disclosure, CREW bears the
burden of production and must “point[] to specific information
in the public domain that appears to duplicate that being
withheld.” Afshar v. Dep’t of State, 702 F.2d 1125, 1130 (D.C.
Cir. 1983). “Prior disclosure of similar information does not
suffice; instead, the specific information sought by the plaintiff
must already be in the public domain by official disclosure.”
Wolf v. CIA, 473 F.3d 370, 378 (D.C. Cir. 2007).
On appeal, we cannot determine on the existing record
whether the Bureau waived Exemption 4 with respect to certain
expiration-date and drug-concentration information. We
would need to know, for instance, what specific expiration
dates and drug concentrations have been publicly released and
whether records containing those very same dates and
concentrations are still being withheld because they include
that information. See id. Those factual inquiries are the
“province of the district court,” Powell v. U.S. Bureau of
Prisons, 927 F.2d 1239, 1243 & n.7 (D.C. Cir. 1991), but that
court has not yet weighed in because the earlier disclosure was
discovered for the first time on appeal.
A remand “best serve[s] the interests of justice and
fairness.” Powell, 927 F.2d at 1243-44; see 28 U.S.C. § 2106.
The Bureau’s earlier release of records containing drug
concentrations and expiration dates “go[es] to the heart” of
what the Bureau may still withhold under Exemption 4,
including whether those contract terms are in fact identifying.
Powell, 927 F.2d at 1243 (alteration in original) (quoting In re
AOV Indus., Inc., 797 F.2d 1004, 1013 (D.C. Cir. 1986)); see
also, e.g., New York Times Co. v. U.S. Dep’t of Just., 756 F.3d
100, 110 & n.8 (2d Cir.), amended on denial of reh’g, 758 F.3d
436 (2d Cir.), supplemented on denial of reh’g, 762 F.3d 233(2d Cir. 2014). Were the court not to consider that earlier
release, CREW might be unfairly deprived of records to which
27
it is entitled. We thus remand to the district court to determine
in the first instance whether and to what extent any information
in the public domain is the basis on which the government
seeks to withhold any records or reasonably segregable
portions thereof under Exemption 4.
* * *
For the foregoing reasons, we reverse the district court’s
decision granting the Bureau’s motion for summary judgment
and remand for further proceedings consistent with this
opinion.
So ordered.
SENTELLE, Senior Circuit Judge, concurring in the
judgment: I join the disposition ordered by the majority, that
is to say, reversing and remanding for further proceedings. As
we have noted in the past, “[t]he vast majority of FOIA cases
can be resolved on summary judgment.” Evans v. Fed. Bureau
of Prisons, 951 F.3d 578, 584 (D.C. Cir. 2020) (quoting
Brayton v. Off. of the U.S. Trade Representative, 641 F.3d 521,
527 (D.C. Cir. 2011)). But this does not mean that summary
judgment is always appropriate. Rule 56 applies where there
is “no genuine dispute as to any material fact.” Fed. R. Civ. P.
56(a). In this case, it appears that further factual development
is necessary, if perhaps not a full-blown trial.
I am not, however, in full concurrence with the majority’s
opinion regarding the commercial nature of the companies’
names. In many instances, the correct answer to a question can
vary depending upon how the question is phrased. I understand
the majority’s reluctance to find that a company’s name fits
within the exemption for confidential and commercial
information. After all, companies advertise under their names.
Nonetheless, the relevant question can also be rephrased as
“Can the identity of a party to a contract be commercial
information?” And the answer to this question may be a
different one; the companies’ contractual obligation to provide
the Bureau of Prisons with lethal injection drugs “pertains to
the exchange of goods . . . or the making of a profit.” Maj. Op.
at 10; see CREW Opening Br. at 18 (“[I]nformation is itself
commercial if it is connected with the exchange of goods.”). It
appears that the companies in this case quite reasonably wish
to protect their contractual arrangements by maintaining the
confidentiality of their identities as suppliers of lethal injection
drugs. As the evidence shows, previous supplying entities
were subjected to protests, suffered economic disadvantage,
and withdrew from the market once identified as such
suppliers.
2
Therefore, while I agree with reversing and remanding, I
would also hope that full examination of the evidence with
respect to this claimed exemption would be undertaken on
remand.