Center for Auto Safety v. U.S. Department of Treasury , 133 F. Supp. 3d 109 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CENTER FOR AUTO SAFETY,
Plaintiff,
Civil Action No. 11-1048 (BAH)
v.
Judge Beryl A. Howell
U.S. DEPARTMENT OF TREASURY, et al.,
Defendants.
MEMORANDUM OPINION
The plaintiff, Center for Auto Safety (“CAS”), requested, under the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552, documents related to the 2009 Chrysler and General
Motors bankruptcies. The defendant, the United States Department of the Treasury (“Treasury”)
has released to the plaintiff over 65,000 pages of records but continues to withhold
approximately 452 documents in whole and 90 documents in part at the request of the defendant-
intervenor General Motors LLC (“GM”) and 284 documents in whole or in part at the request of
Chrysler Group LLC (“Chrysler”). Treasury contends that the withheld documents are exempt
from release pursuant to Exemption 4 of the FOIA, 5 U.S.C. § 552(b)(4), because they contain
confidential commercial or financial information likely to impair the government’s ability to
obtain necessary information in the future and likely to cause substantial competitive harm to
GM and Chrysler. The plaintiff challenges the majority of the withholdings, arguing that the
defendants’ Vaughn indices are insufficiently descriptive and the defendants have not
sufficiently shown that the information withheld is confidential.
Pending before the Court are cross-motions for summary judgment: (1) a joint motion
for summary judgment brought by Treasury and GM (“Jt. Mot.”), ECF No. 36, and (2) a cross-
1
motion for summary judgment brought by CAS (“Pl.’s Mot.”), ECF No. 40. For the reasons
discussed below, the defendants’ motion is granted in part and denied in part, and the plaintiff’s
cross-motion is denied without prejudice.
I. BACKGROUND
In the fall of 2008, in response to economic instability, Congress enacted the Emergency
Economic Stabilization Act (“EESA”). Defs.’ Mot., Ex. 1, Decl. of Kathleen Cochrane
(“Cochrane Decl.”) ¶ 26, ECF No. 36-1. The EESA established the Office of Financial Stability
(“OFS”), which implemented the Troubled Asset Relief Program (“TARP”). Id. Pursuant to the
TARP, Treasury established the Automotive Industry Financing Program (“AIFP”) and, through
2009, provided billions of dollars of loans to entities associated with GM and Chrysler. 1 Id. ¶¶
26–28; Pl.’s Statement of Material Facts as to Which There is No Genuine Issue & Pl.’s Resp. to
Defs.’ Statement of Material Facts (“Pl.’s SMF”) ¶¶ 18–19, ECF No. 40; Defs.’ Resp. to Pl.’s
Statement of Material Facts as to Which There is No Genuine Issue (“Defs.’ Resp. SMF”) ¶¶ 18–
19, ECF No. 48-1. In connection with the loans, GM and Chrysler entities were required to
implement restructuring plans, see Cochrane Decl. ¶¶ 27–28; Pl.’s SMF ¶¶ 29–30; Defs.’ Resp.
SMF ¶¶ 29–30, and in February 2009, President Obama established the Auto Task Force (“Task
Force”) to review the viability of the restructuring plans, Cochrane Decl. ¶ 30.
The government provided an initial loan to General Motors Corporation (“Old GM,” now
known as “Motors Liquidation Company”), which filed for bankruptcy, on June 1, 2009, as part
of its restructuring. Id. ¶ 27. Pursuant to Section 363 of the Bankruptcy Code, 11 U.S.C. § 363,
a newly formed entity, General Motors LLC (“GM”), the defendant-intervenor in this lawsuit,
1
The government’s provision of loans to auto companies during this time period is commonly referred to as
the auto industry “bailout.” See, e.g., Pl.’s Mem. Supp. Mot. Summ. J. & Opp’n Defs.’ Mot. Summ. J. (“Pl.’s
Mem.”) at 1, ECF No. 40.
2
purchased most of the assets and some of the liabilities of Old GM (“GM Section 363 Sale”).
Id.; Pl.’s SMF ¶¶ 3, 11; Defs.’ Resp. SMF ¶¶ 3, 11. Similarly, Chrysler LLC (“Old Chrysler,”
now known as “Old Carco”) filed for bankruptcy in April 2009, and in June 2009, the newly
formed entity, Chrysler Group LLC (“Chrysler”) purchased most of the assets and some of the
liabilities of Old Chrysler (“Chrysler Section 363 Sale”). Cochrane Decl. ¶ 28; Pl.’s SMF ¶¶ 4,
12; Defs.’ Resp. SMF ¶ 4, 4 n.1, 12. As part of the Section 363 Sales, GM and Chrysler were
not required to assume certain liabilities that were left with Old GM and Old Chrysler. Pl.’s
SMF ¶¶ 11–12; Defs.’ Resp. SMF ¶¶ 11–12. This aspect of the auto industry bailout is the
principal focus of the FOIA request at issue.
The plaintiff, CAS, is “a nationwide nonprofit consumer advocacy organization . . . .
work[ing] toward improved safety, environmental responsibility, and fair dealing in the
automotive industry and marketplace.” Compl. ¶ 4, ECF No. 1; Pl.’s Mot., Ex. R (“FOIA Req.”)
at 1, ECF No. 42-10. On June 8, 2009, CAS requested under the FOIA: “All e-mail
correspondence since January 1, 2009, in any way related to the Chrysler and General Motors
bankruptcies, the events preceding those bankruptcies, and the federal government’s roles in and
deliberations concerning those matters.” FOIA Req. at 1; see also Compl. ¶ 18; Defs.’ Statement
of Material Facts as to Which There is No Genuine Issue (“Defs.’ SMF”) ¶ 1, ECF No. 36; Pl.’s
SMF ¶¶ A.1, B.1; Defs.’ Resp. SMF ¶ 1. The request included “all . . . e-mails generated and/or
received by the Department of the Treasury and . . . Brian Deese[,] Ed Montgomery[,] Ron
Bloom[,] Steven Rattner[,] Matthew Feldman[,] [and] Timothy Geithner[.]” FOIA Req. at 1; see
also Compl. ¶ 19; Defs.’ SMF ¶ 1. CAS also requested a waiver of the fees and costs associated
with processing its request. Compl. ¶ 20.
3
The plaintiff’s FOIA request was prompted by concern about the liabilities left with the
old, bankrupt companies, which allegedly have left consumers injured by defectively
manufactured cars without recourse. See Pl.’s Mem. Supp. Mot. Summ. J. & Opp’n Defs.’ Mot.
Summ. J. (“Pl.’s Mem.”) at 1, 16, 19, ECF No. 40. According to the plaintiff, “in exchange for
the bailout funds[,]” GM and Chrysler were allowed to leave liabilities, “including the need to
compensate consumers injured by defective cars manufactured by General Motors and
Chrysler[,]” with the old, bankrupt companies which do not have “the necessary funds to
compensate victims of such accidents and incidents and their families.” Id. at 1 (emphasis
omitted). The plaintiff is concerned about the government’s role in allegedly “requiring the
‘new’ Chrysler and GM to leave behind potential liabilities vis-à-vis consumers who have been
both physically and economically injured by defective products manufactured by the ‘old’ GM
and Chrysler.” Id. at 16.
Almost two years after the plaintiff made its FOIA request, around March 2011, Treasury
had identified 170,000 pages of documents responsive to the plaintiff’s request but denied the
plaintiff’s fee waiver request, which denial was appealed by CAS. Compl. ¶¶ 23–25. Then, on
June 7, 2011, having received no response to its appeal, see id. ¶¶ 28–29, CAS filed the
Complaint in this action requesting declaratory and injunctive relief, see id. at 10–11.
On December 16, 2011, the parties filed a Voluntary Stipulation of Partial Settlement and
Proposed Order for Further Proceedings (“Stipulation”), ECF No. 12, which the Court granted,
see Minute Order, Dec. 19, 2011. Per the Stipulation, Treasury agreed to waive the fees
associated with the plaintiff’s FOIA request and to produce, on a rolling basis for twelve months,
certain records retrieved from its files that were dated between January 1, 2009 and August 27,
4
2009. Stipulation ¶¶ 1, 3–6; Defs.’ SMF ¶ 2; Pl.’s SMF ¶ B.2. Thus, by agreement, the
plaintiff’s FOIA request came to include documents dated through August 27, 2009.
Pursuant to 31 C.F.R. § 1.6,2 Treasury provided GM and Chrysler with opportunities to
review and object to the disclosure of documents Treasury identified as responsive to the
plaintiff’s FOIA request. Cochrane Decl. ¶ 34. According to the parties’ opening briefs,
although negotiations narrowed the scope of the parties’ dispute, GM continues to object to
Treasury’s release of a total of 452 whole documents and 90 partially redacted documents—a
total of 542 documents, Cochrane Decl. ¶ 24; Pl.’s SMF ¶ A.2; Defs.’ Resp. SMF ¶ 2, and
Chrysler continues to object to Treasury’s release of 284 documents in whole or in part, Pl.’s
SMF ¶ A.2; Defs.’ Resp. SMF ¶ 2. Consequently, a total of 542 GM documents and 284
Chrysler documents may remain in dispute, see Cochrane Decl. ¶ 24, although the parties
suggest slightly different numbers in the course of their briefing. 3
The records withheld that remain at issue consist of email communications between
Treasury and either GM or Chrysler, or between business advisors and legal representatives of
Treasury, GM and Chrysler and related attachments to those emails. Defs.’ SMF ¶ 6; Pl.’s SMF
¶ B.6. Some of the information pertains to Old GM and Old Chrysler and liabilities that were
left with these entities as a result of the Section 363 Sales. Pl.’s SMF ¶¶ 10, 13; Defs.’ Resp.
SMF ¶¶ 10, 13. All of the information was generated by or provided to Treasury between
2
This regulation generally bars from FOIA disclosure “information provided to the Department of the
Treasury by a business submitter” until notice and an opportunity to object has been given to the business submitter.
31 C.F.R. § 1.6(a)–(c). Business submitters must object to disclosure of information by “specify[ing] all grounds for
withholding any of the information under any exemption of the [FOIA] and, in the case of Exemption 4, shall
demonstrate why the information is considered to be a trade secret or commercial or financial information that is
privileged or confidential.” Id. § 1.6(d)(1).
3
Contrary to the numbers in the parties’ initial briefings and affidavits, later briefing refers to disputes over
452 whole GM documents and 89 partially redacted GM documents—a total of 451 GM documents, see Defs.’
Combined Opp’n to Pl.’s Mot. Summ. J. & Reply to Pl.’s Opp’n to Defs.’ Jt. Mot. Summ. J. (“Jt. Opp’n & Reply”)
at 15 n.10, ECF No. 49, and 283 Chrysler documents, see id. at 17.
5
January and August 2009 and most was required by Treasury when deciding whether to provide
federal funding to GM and Chrysler under the TARP. Pl.’s SMF ¶¶ 16, 28; Defs.’ Resp. SMF ¶¶
16, 28. Treasury has submitted two separate Vaughn indices for the documents at issue, one for
the disputed GM documents, see Jt. Mot., Ex. 2, Decl. of Laura L. Fitzpatrick (“GM Decl.”), Ex.
D (“GM Vaughn Index”), ECF No. 36-2, and one for the disputed Chrysler documents, see id.,
Ex. 3, Decl. of Chrysler Group LLC (“Chrysler Decl.”), Ex. A (“Chrysler Vaughn Index”), ECF
No. 36-3, each of which was initially created by GM and Chrysler, respectively, at Treasury’s
request, see Cochrane Decl. ¶¶ 17–24.
II. LEGAL STANDARD
Congress enacted the FOIA as a means “to open agency action to the light of public
scrutiny,” Am. Civil Liberties Union v. U.S. Dep’t of Justice, 750 F.3d 927, 929 (D.C. Cir. 2014)
(quoting Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976)), and “to promote the ‘broad
disclosure of Government records’ by generally requiring federal agencies to make their records
available to the public on request,” DiBacco v. U.S. Army, 795 F.3d 178, 183 (D.C. Cir. 2015)
(citing Dep’t of Justice v. Julian, 486 U.S. 1, 8 (1988)). As the Supreme Court has “consistently
recognized[,] [] the basic objective of the Act is disclosure.” Chrysler Corp. v. Brown, 441 U.S.
281, 290 (1979). At the same time, the statute represents a “balance [of] the public’s interest in
governmental transparency against legitimate governmental and private interests that could be
harmed by release of certain types of information.” United Techs. Corp. v. U.S. Dep’t of Def.,
601 F.3d 557, 559 (D.C. Cir. 2010) (internal quotation marks and citations omitted). Reflecting
that balance, the FOIA contains nine exemptions set forth in 5 U.S.C. § 552(b), which “are
explicitly made exclusive and must be narrowly construed.” Milner v. U.S. Dep’t of Navy, 562
U.S. 562, 565 (2011) (internal quotation marks and citations omitted) (citing FBI v. Abramson,
6
456 U.S. 615, 630 (1982)); see Murphy v. Exec. Office for U.S. Attys., 789 F.3d 204, 206 (D.C.
Cir. 2015); Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice (CREW), 746
F.3d 1082, 1088 (D.C. Cir. 2014); Pub. Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865,
869 (D.C. Cir. 2010). “[T]hese limited exemptions do not obscure the basic policy that
disclosure, not secrecy, is the dominant objective of the Act.” Rose, 425 U.S. at 361.
The agency invoking an exemption to the FOIA has the burden “to establish that the
requested information is exempt.” Fed. Open Mkt. Comm. of Fed. Reserve Sys. v. Merrill, 443
U.S. 340, 352 (1979); see U.S. Dep’t of Justice v. Reporters Comm. for Freedom of Press, 489
U.S. 749, 755 (1989); DiBacco, 795 F.3d at 195; CREW, 746 F.3d at 1088; Elec. Frontier
Found. v. U.S. Dep’t of Justice, 739 F.3d 1, 7 (D.C. Cir. 2014); Assassination Archives &
Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003). In order to carry this burden, an agency
must submit sufficiently detailed affidavits or declarations, a Vaughn index of the withheld
documents, or both, to demonstrate that the government has analyzed carefully any material
withheld, to enable the court to fulfill its duty of ruling on the applicability of the exemption, and
to enable the adversary system to operate by giving the requester as much information as
possible, on the basis of which the requester’s case may be presented to the trial court.4 See
Oglesby v. U.S. Dep’t of Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996) (“The description and
explanation the agency offers should reveal as much detail as possible as to the nature of the
document, without actually disclosing information that deserves protection . . . . [which] serves
the purpose of providing the requestor with a realistic opportunity to challenge the agency’s
decision.” (citation omitted)); see also CREW, 746 F.3d at 1088 (“The agency may carry that
burden by submitting affidavits that ‘describe the justifications for nondisclosure with reasonably
4
“A Vaughn index describes the documents withheld or redacted and the FOIA exemptions invoked, and
explains why each exemption applies.” Prison Legal News v. Samuels, 787 F.3d 1142, 1145 n.1 (D.C. Cir. 2015).
7
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.’” (quoting Larson v. U.S. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)).
While “an agency’s task is not herculean[,]” it must “describe the justifications for nondisclosure
with reasonably specific detail and demonstrate that the information withheld logically falls
within the claimed exemption.” Murphy, 789 F.3d at 209 (internal quotation marks omitted)
(citing Larson, 565 F.3d at 862).
The FOIA provides federal courts with the power to “enjoin the agency from withholding
agency records and to order the production of any agency records improperly withheld from the
complainant,” 5 U.S.C. § 552(a)(4)(B), and “directs district courts to determine de novo whether
non-disclosure was permissible,” Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 777
F.3d 518, 522 (D.C. Cir. 2015). A district court must review the Vaughn index and any
supporting declarations “to verify the validity of each claimed exemption.” Summers v. U.S.
Dep’t of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998). Moreover, a district court has an
“affirmative duty” to consider whether the agency has produced all segregable, non-exempt
information. Elliott v. U.S. Dep’t of Agric., 596 F.3d 842, 851 (D.C. Cir. 2010) (referring to
court’s “affirmative duty to consider the segregability issue sua sponte”) (quoting Morley v. CIA,
508 F.3d 1108, 1123 (D.C. Cir. 2007)); Stolt-Nielsen Transp. Grp. Ltd. v. United States, 534
F.3d 728, 734 (D.C. Cir. 2008) (“[B]efore approving the application of a FOIA exemption, the
district court must make specific findings of segregability regarding the documents to be
withheld.”) (quoting Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007));
Trans-Pac. Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1028 (D.C. Cir. 1999)
(“[W]e believe that the District Court had an affirmative duty to consider the segregability issue
8
sua sponte . . . . even if the issue has not been specifically raised by the FOIA plaintiff.”); see
also 5 U.S.C. § 552(b) (“Any reasonably segregable portion of a record shall be provided to any
person requesting such record after deletion of the portions which are exempt under this
subsection.”).
Summary judgment is appropriate when “there is no genuine dispute as to any material
fact.” Fed. R. Civ. P. 56. “In FOIA cases, summary judgment may be granted on the basis of
agency affidavits if they contain reasonable specificity of detail rather than merely conclusory
statements, and if they are not called into question by contradictory evidence in the record or by
evidence of agency bad faith.” Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C.
Cir. 2013) (internal quotation marks omitted) (quoting Consumer Fed’n of Am. v. U.S. Dep’t of
Agric., 455 F.3d 283, 287 (D.C. Cir. 2006)). “Ultimately, an agency’s justification for invoking
a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Judicial Watch, Inc. v. U.S.
Dep’t of Def., 715 F.3d 937, 941 (D.C. Cir. 2013) (quoting Am. Civil Liberties Union v. U.S.
Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir. 2011)); Larson, 565 F.3d at 862 (quoting Wolf v.
CIA, 473 F.3d 370, 374–75 (D.C. Cir. 2007)).
III. DISCUSSION
Treasury has categorized the withheld GM and Chrysler documents into nine topical
categories: (1) GM and Chrysler confidential financial data; (2) GM and Chrysler compensation
and benefits information; (3) GM transactions; (4) GM dealers and dealer networks; (5) GM
manufacturing and operations; (6) GM European operations and Opel; (7) Chrysler confidential
tax and legal liability information; (8) Chrysler confidential operational, labor, and
manufacturing information; and (9) Chrysler draft transactional materials. See Jt. Mem. Supp.
Mot. Summ. J. (“Jt. Mem.”) at 15–24, ECF No. 36. The plaintiff challenges the withholding
9
under Exemption 4 of the documents on two main grounds. First, the plaintiff argues the
defendants failed to show that Treasury obtained the withheld information from GM or Chrysler.
Second, the plaintiff argues the release of the information would in no way impair Treasury’s
ability to obtain information in the future, nor is it likely to cause GM or Chrysler substantial
competitive harm, and, therefore, the information is not confidential. 5 In making these
arguments, the plaintiff emphasizes that the Vaughn indices generally provide insufficient
information to make a determination as to whether the defendants properly withheld documents
under Exemption 4. Each of the plaintiff’s arguments is addressed in detail below following
review of the Exemption 4 legal framework and the information the plaintiff has clarified it does
not seek. For the reasons discussed below, and in light of the deficiencies in the defendants’
papers, the defendants will be instructed to submit a revised Vaughn index and/or amended
declarations, subjecting both the parties and this Court to another round of summary judgment
briefing. 6
5
The plaintiff additionally complains that Treasury has failed to provide its own independent determination
that all the withheld information is exempt from disclosure because it submitted Vaughn indices prepared by GM
and Chrysler lawyers rather than by “the appropriate agency officials.” Pl.’s Mem. at 22-23. Thus, the plaintiff
argues, “because the government itself has failed to provide the Court with the agency’s own sworn declaration
concerning the information that remains at issue, with a detailed justification as to why such information is exempt
from disclosure under Exemption 4, the agency simply has failed to meet its burden of proof here.” Id. at 24. As
support, the plaintiff posits that courts only rely on Vaughn indices produced by FOIA submitters in reverse-FOIA
cases, where the submitter has sued the agency over its determination to release information. See id. at 23, 23 n.30.
The plaintiff’s arguments are unavailing. The government may work with the private persons who would be most
affected by the release of the information, and Treasury official Kathleen Cochrane declared, inter alia, (1)
“Treasury has conducted a detailed review of each page of the records processed in this case[,]” (2) “Treasury
believes that GM and Chrysler have credibly asserted” the withheld information is exempt from disclosure, and (3)
“[a]fter careful consideration,” Treasury “determined that no additional information can be released.” Cochrane
Decl. ¶¶ 37–38. As the defendants note, courts “routinely rel[y] on declarations and Vaughn indices produced by
FOIA submitters . . . where records are being withheld” under Exemption 4 because they “are best situated to
identify information that could cause them substantial competitive harm.” Jt. Opp’n & Reply at 33 (citing Pub.
Citizen v. U.S. Dep’t of Health & Human Servs., 975 F. Supp. 2d 81, 113–17 (D.D.C. 2013)); see also Durnan v.
U.S. Dep’t of Commerce, 777 F. Supp. 965, 966–67 (D.D.C. 1991) (relying on declarations from FOIA submitters to
justify agency’s withholding under Exemption 4).
6
Given the deficiencies in the defendants’ Vaughn indices and related declarations in supporting
withholdings under Exemption 4, the plaintiff urges that summary judgment should be granted to CAS. See Pl.’s
Mem. at 3 (arguing plaintiff is entitled to summary judgment because “the government simply has failed to
overcome FOIA’s mandate for openness”). This invitation is tempting, but the Court nonetheless will provide the
10
A. FOIA’s Exemption 4
Under the FOIA, “trade secrets and commercial or financial information obtained from a
person” that is “privileged or confidential” may be withheld from disclosure. 5 U.S.C. §
552(b)(4). Where, as here, the documents are not trade secrets, see Cochrane Decl. ¶ 35
(“Treasury has not withheld any information as a trade secret under Exemption 4.”), 7 to sustain
the burden of showing that Exemption 4 was properly applied, an agency must establish that the
withheld records are “(1) commercial or financial, (2) obtained from a person, and (3) privileged
or confidential.” Pub. Citizen Health Research Grp. v. FDA, 704 F.2d 1280, 1290 (D.C. Cir.
1983). The parties do not dispute that the first requirement of this test is met. See Jt. Opp’n &
Reply at 14; see generally Pl.’s Mem.
With respect to the second requirement, the statute makes clear that a “‘person’ includes
an individual, partnership, corporation, association, or public or private organization other than
an agency.” 5 U.S.C. § 551(2) (emphasis added). Information “generated within the
Government” is not “obtained from a person” and, thus, does not fall under the exemption. Bd.
of Trade v. Commodity Futures Trading Comm’n, 627 F.2d 392, 404 (D.C. Cir. 1980), abrogated
on other grounds by U.S. Dep’t of State v. Wash. Post Co., 456 U.S. 595 (1982); see also Soucie
v. David, 448 F.2d 1067, 1079 n.47 (D.C. Cir. 1971) (“The exemption for confidential
defendants an opportunity to supplement their invocation of this FOIA exemption, with the additional guidance
outlined in this Memorandum Opinion. See United Techs. Corp., 601 F.3d at 565 (“[B]ecause [the agency]’s
conclusionary statement is unreviewable, we must remand for it to examine the relevant data and articulate a
satisfactory explanation for its action, if it can, including a rational connection between the facts found and the
choice made.” (internal quotation marks and citation omitted) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).
7
Despite the representation in Treasury’s declaration, close inspection of the Vaughn indices reveals several
entries referring to trade secrets. See Chrysler Vaughn Index at 62, HHR-DOT2-00077513 (alleging the withheld
document contains “trade secrets regarding Chrysler’s product development”); id. at 65, HHR-DOT2-00324354,
HHR-DOT2-00324650, and HHR-DOT2-00324823 (same); id. at 84, HHR-DOT2-00023370 (same). This may just
be a reflection of the general lack of precision with which the defendants prepared the Vaughn indices, which, if not
corrected in the next round of briefing, will entitle the plaintiff to summary judgment.
11
information is available only with respect to information received from sources outside the
Government[,]” and applies “only to the extent [the document] contains private information
given confidentially . . . or information obtained from nongovernmental parties on a confidential
basis.”); Grumann Aircraft Eng’g Corp. v. Renegotiation Bd., 425 F.2d 578, 582 (D.C. Cir.
1970) (“[Exemption 4] . . . encompass[es] only information received from person outside the
Government.”).
With respect to the third requirement of the test, under which withheld records must be
“privileged or confidential,” the defendants do not withhold any documents as “privileged.”
Thus, the parties dispute only whether the documents are “confidential.” The standard for
determining whether information is confidential differs depending on whether the information
was voluntarily or involuntarily submitted to the agency.
A two-prong test is used to determine whether information involuntarily submitted to a
Federal agency is “confidential” for FOIA purposes: whether release of the records would (1)
impair the Government’s ability to obtain necessary information in the future; or (2) cause
“substantial harm to the competitive position of the person from whom the information was
obtained.” Nat’l Parks & Conserv. Ass’n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974)
(“National Parks”); accord Jurewicz v. U.S. Dep’t of Agric., 741 F.3d 1326, 1331 (D.C. Cir.
2014). With respect to the first prong, “the governmental impact inquiry . . . focus[es] on the
possible effect of disclosure on [the] quality” of the information. Ctr. for Auto Safety v. Nat’l
Highway Traffic Safety Admin., 244 F.3d 144, 148 (D.C. Cir. 2001) (quoting Critical Mass
Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871, 878 (D.C. Cir. 1992)). For the
second prong, “[s]ubstantial competitive harm” is “limited to harm flowing from the affirmative
use of proprietary information by competitors,” Pub. Citizen Health Research Grp., 704 F.2d at
12
1291 n.30 (emphasis in original); see Jurewicz, 741 F.3d at 1331 (same), and “requires a
showing of both actual competition and a likelihood of substantial competitive injury,” Jurewicz,
741 F.3d at 1331. “In reviewing an agency’s determination as to substantial competitive harm,”
courts “recognize that ‘predictive judgements are not capable of exact proof,’ and . . . generally
defer to the agency’s predictive judgments as to ‘the repercussions of disclosure.’” United
Techs. Corp., 601 F.3d at 563 (citations omitted).
The bar is lower for withholding confidential information voluntarily provided to the
Government, making withholding an easier burden for the agency to meet: 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” to be withheld as confidential. Critical Mass, 975 F.2d at
878. “[I]n assessing customary disclosure, the court will consider how the particular party
customarily treats the information, not how the industry as a whole treats the information.” Ctr.
for Auto Safety, 244 F.3d at 148. “A party can voluntarily make protected disclosures of
information, and as long as the disclosures are not made to the general public, such disclosures
do not constitute customary disclosures.” Id.
A threshold question in this case is which standard applies in evaluating the agency’s
withholding under Exemption 4: the standard applicable to voluntarily or involuntarily
submitted documents? “For purposes of Exemption 4, information provided to the government
because it is required for participation in a voluntary government program is treated as
mandatory, as opposed to a voluntary, submission of information.” Judicial Watch, Inc. v. U.S.
Dep’t of Treasury, 796 F. Supp. 2d 13, 35 n.8 (D.D.C.2011); see also Ctr. for Auto Safety, 244
F.3d at 149 (holding that when an agency has “actual legal authority” to compel production of
information, such production is not voluntary for the purposes of the FOIA); Pub. Citizen Health
13
Research Grp. v. FDA, 964 F. Supp. 413, 414 n. 1 (D.D.C. 1997) (“Information is submitted
involuntarily, however, if it is supplied pursuant to statute, regulation or some less formal
mandate.”).
In this case, while the defendants summarily contend that some of the disputed
documents were voluntarily provided to Treasury, see Jt. Mem. at 12 (arguing some of the
disputed information qualifies for Exemption 4 protection under the Critical Mass test);
Cochrane Decl. at 9 n.3 (“Some of the information provided by GM and Chrysler may not have
been required in connection with their loan applications, and would therefore be considered
voluntarily submitted.”), the defendants point to no particular documents and litigate only based
on the involuntary standard, see Cochrane Decl. at 9 n.3 (“Treasury believes that all of the
withheld information satisfies the stricture standard applied to mandatorily-submitted documents,
and will therefore litigate only based upon this higher standard.”). Moreover, the defendants do
not dispute that any information turned over by GM and Chrysler to Treasury was submitted by
the companies in their efforts to secure funding under TARP. Therefore, the withheld documents
are considered involuntarily submitted, and the ordinary National Parks standard must be
applied. See Judicial Watch, Inc. v. U.S. Dep’t of Treasury, 796 F. Supp. 2d at 35 n.8; see also
Ctr. for Auto Safety, 244 F.3d at 149.
B. Information Not Sought by the Plaintiff
Before turning to the withheld documents disputed by the parties, the Court first
considers the extent to which documents listed in the Vaughn indices are no longer disputed.
First, one document identified as withheld in full, see Chrysler Vaughn Index at 71, HHR-DOT2-
00004091 (“Obama Administration New Path to Viability for GM & Chrysler” document), was,
according to the plaintiff, actually released in full, see Pl.’s Mem. at 27. The defendants claim
14
the document was “inadvertently included” on the Vaughn Index and represent that “[t]he
inclusion of this document on Chrysler’s . . . Vaughn Index was merely an oversight.” Jt. Opp’n
& Reply at 17. Accordingly, the parties’ motions are denied as moot as to this document.
Second, the plaintiff does not contest the defendants’ withholding of any information
under Exemption 6, see Pl.’s Mem. at 26 n.33, 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). In particular, the plaintiff “does not seek access to any personal
information” and “has no interest in obtaining individuals’ cell phone information.” Pl.’s Mem.
at 26 n.33 (internal quotation marks and emphasis omitted). The defendants do not specify in
their papers, however, the documents withheld under Exemption 6, in whole or in part, that are
no longer disputed. The defendants make a passing reference in a footnote to one Chrysler
document, as an example of “[s]everal Chrysler emails [which] also contain redactions of . . .
personal information,” and one GM document, that “contains information redacted under
Exemption 6, not Exemption 4.” Jt. Opp’n & Reply at 14 n.9. Yet, with respect to the cited
exemplar Chrysler document, the Chrysler Vaughn index makes no reference to Exemption 6 as
the basis for withholding. See Chrysler Vaughn Index at 27, HHR-DOT2-00342767 (redacting
“[t]he entire text” of an email that allegedly “references detailed operational and financial
information about Chrysler’s suppliers, including accounts payable figures”). Therefore,
summary judgment is denied to all parties with respect to this document. The GM Vaughn Index
indicates that the cited exemplar GM document, on the other hand, was redacted solely under
Exemption 6. See GM Vaughn Index at Doc. No. 529. Therefore, summary judgment is granted
to the defendants, as conceded, and denied to the plaintiff as to this document.
15
Although the parties failed in their briefing to identify precisely the documents on the
Vaughn indices containing withholdings no longer disputed, the Court’s own search through the
Chrysler Vaughn Index reveals that several Chrysler documents were redacted only to withhold
cell phone information. See Chrysler Vaughn Index at 13, HHR-DOT2-00044792; id. at 20,
HHR-DOT2-00158246, HHR-DOT2-00158247, HHR-DOT2-00158243, HHR-DOT2-
00165104, and HHR-DOT2-00165108; id. at 27, HHR-DOT2-00341586, HHR-DOT2-
00341590, and HHR-DOT2-00342765; id. at 31, HHR-DOT2-00346589. Similarly, the Court’s
own search through the GM Vaughn Index shows Exemption 6 as the only basis for withholding
information in a number of documents. See GM Vaughn Index at Doc. Nos. 92, 114, 188, 457,
473, 504–07, 516, 528, 535, and 541–43. Therefore, summary judgment is also granted to the
defendants, as conceded, and denied to the plaintiff as to these documents.
Third, the plaintiff is not “interested in the operations and performance of individual
dealers or information related to employee compensation and benefit matters,” Pl.’s Mem. at 26
n.33 (internal quotation marks and emphasis omitted), which information is covered in document
categories (2) (GM and Chrysler compensation and benefits information) and (4) (GM dealers
and dealer networks). Here, again, the defendants have failed to clarify or provide an exhaustive
list of exactly which documents have been redacted or withheld because such documents contain
information about “the operations and performance of individual dealers” or “related to
employee compensation and benefits matters” for either GM or Chrysler.
The burden on the Court to search through all 827 entries in the Vaughn indices to
identify the documents that are no longer disputed is significant. This task is made more difficult
here, or even impossible, because the defendants’ deficient Vaughn indices and lack of clarifying
declarations or briefing frustrate efforts to make definitive rulings. Indeed, the documents falling
16
into categories (2) and (4) are only ambiguously categorized in the GM Vaughn Index. For
example, though the GM Vaughn Index characterizes certain documents as falling into category
(4), the GM Declaration indicates those documents are “also categorized as Transactions—GM
Restructuring,” thereby falling under category (3). GM Decl. ¶ 32. Thus, it is unclear whether
any category (4) documents remain disputed. Furthermore, while the GM Vaughn Index makes a
clumsy stab at identifying the category into which each document falls, the Chrysler Vaughn
Index is silent as to which documents belong to which category. See generally Chrysler Vaughn
Index. Thus, it is entirely unclear which Chrysler documents or information belong in category
(2) and were withheld solely because of “information related to employment compensation and
benefits matters” and, thus, are uncontested. Moreover, to the extent that the defendants’
declarations or Vaughn indices indicate that documents could belong in multiple categories, the
indices generally fail to address the segregability of any properly withheld information from
releasable information.
Thus, the deficiencies in the Vaughn indices submitted in this case, and discussed in
greater detail below, permeate even the purportedly undisputed records and preclude summary
judgment determinations except in narrow circumstances. For this reason, to the extent they
continue to withhold any documents, the defendants are instructed to submit a revised, combined
Vaughn index for both GM and Chrysler, with numbered entries for all remaining disputed
documents. To enable a ruling on each specific contested document, the Vaughn index shall
detail, for each disputed document, (1) whether any redaction has been made under Exemption 6
and, if so, providing the nature of the information redacted, and (2) the specific category or
categories that apply.
* * *
17
The Court could stop here and require the defendants simply to redo their submissions,
but additional guidance about the legal disputes raised by the parties may assist the parties in
reducing the number of disputed documents at issue. Consequently, the Court addresses below
the parties’ disputes over the application of Exemption 4.
C. Sufficiency of Showing That Withheld Information Was Obtained From a
Person
The plaintiff argues the defendants have failed to show that some withheld information
was “obtained from a person,” a prerequisite for invoking Exemption 4, and failed to explain
why information authored or generated by government officials, as opposed to GM or Chrysler,
“cannot be segregated and released.” Pl.’s Mem. at 26–27. The plaintiff points out that “[m]any
of the descriptions of documents do not identify authors, or even whether the authors were
industry representatives or government officials,” and sometimes provide author names without
identifying who those individuals are. Pl.’s Mem. at 24. The plaintiff also notes that some
documents withheld contain email exchanges between government officials and GM or Chrysler
representatives and argues these email exchanges therefore “necessarily include[] at least some
information that was authored or created by government officials” and, thus, is not exempt from
release. Pl.’s Reply Mem. Supp. Mot. Summ. J. (“Pl.’s Reply”) at 4, ECF No. 51 (emphasis
omitted). The Court generally agrees with the deficiencies pointed out by the plaintiff in the
defendants’ invocation of Exemption 4.
“[I]nformation originally obtained from an outside source, but later included in agency
documents, may be considered ‘obtained from a person’” and qualify for Exemption 4
protection. COMPTEL v. FCC, 910 F. Supp. 2d 100, 117 (D.D.C. 2012). Courts have
explained, “information in an agency-generated [document] is still ‘obtained from a person’ if
such information was supplied to the agency by a person or could allow others to ‘extrapolate’
18
such information.” S. All. for Clean Energy v. U.S. Dep’t of Energy, 853 F. Supp. 2d 60, 68
(D.D.C. 2012) (citing Gulf & W. Indus. v. United States, 615 F.2d 527, 529–30 (D.C. Cir.
1979)); see also Judicial Watch, Inc. v. Export-Import Bank, 108 F. Supp. 2d 19, 28 (D.D.C.
2000) (“[D]ocuments prepared by the federal government may be covered by Exemption 4 if
they contain summaries or reformulations of information supplied by a source outside of the
government.”). Also, when “information was initally obtained from outside the agency and then
was modified through negotiations,” the negotiations do not change the fact that the information
was “obtained from a person” and qualifies for exemption. S. All. for Clean Energy, 853 F.
Supp. 2d at 68 (citing Pub. Citizen Health Research Grp. v. Nat’l Insts. of Health, 209 F. Supp.
2d 37, 45 (D.D.C. 2002)). When information “constitutes that agency’s own analysis,” however,
“such information is the agency’s information, and not ‘obtained from a person’ under
Exemption 4.” Id. (citing Philadelphia Newspapers, Inc. v. Dep’t of Health & Human Servs., 69
F. Supp. 2d 63, 66–67 (D.D.C. 1999), and Fisher v. Renegotiation Bd., 355 F. Supp. 1171, 1173–
74 (D.D.C. 1973)). Accordingly, courts have recognized, “the key distinction . . . is between
information that is either repeated verbatim or slightly modified by the agency, and information
that is substantially reformulated by the agency, such that it is no longer a ‘person’s’ information
but the agency’s information.” Id.
As noted above, the defendants bear the burden of establishing the applicability of FOIA
exemptions, see Merrill, 443 U.S. at 351–52; Elec. Frontier Found., 739 F.3d at 7, and
“conclusory and generalized allegations of exemptions are unacceptable,” Morley, 508 F.3d at
1115 (internal quotation marks omitted). Courts may not “speculate as to whether [an]
[e]xemption [ ] might, under some possible congruence of circumstances not proven or even
asserted be properly applied to . . . documents, nor will [they] assume that all the necessary
19
conditions are met merely because the agency invokes an exemption.” Coastal States Gas Corp.
v. U.S. Dep’t of Energy, 617 F.2d 854, 870 (D.C. Cir. 1980); see also Founding Church of
Scientology v. Bell, 603 F.2d 945, 949 (D.C. Cir. 1979) (“The reviewing court should not be
required to speculate on the precise relationship between each exemption claim and the contents
of the specific document.”); S. Alliance for Clean Energy, 853 F. Supp. 2d at 67 (“Vague,
sweeping, or conclusory materials are inadequate to support summary judgment in favor of an
agency and the acceptance of such inadequate support ‘would constitute abandonment of the trial
court’s obligation under FOIA to conduct de novo review.’” (quoting King v. U.S. Dep’t of
Justice, 830 F.2d 210, 218–19 (D.C. Cir. 1987))). Thus, while “a Vaughn index may . . . contain
brief or categorical descriptions when necessary to prevent the litigation process from revealing
the very information the agency hopes to protect[,]” ACLU v. CIA, 710 F.3d 422, 432 (D.C. Cir.
2013), it must also be “sufficiently distinct to allow a court to determine . . . whether the specific
claimed exemptions are properly applied[,]” Gallant v. NLRB, 26 F.3d 168, 173 (D.C. Cir. 1994)
(quoting Vaughn v. United States, 936 F.2d 862, 868 (6th Cir. 1991)).
The defendants contend that the authors of emails, or where the emails were generated,
are irrelevant because the information in the emails was obtained from GM and Chrysler. Jt.
Opp’n & Reply at 15 (citing Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 892 F.
Supp. 2d 28, 39 (D.D.C. 2012) (noting “the focus of FOIA is ‘information, not documents”)). In
arguing the Vaughn indices are sufficiently detailed despite their lack of author information, the
defendants rely on this Court’s decision in Toensing v. U.S. Dep’t of Justice, 999 F. Supp. 2d 50,
59–60 (D.D.C. 2013). See Jt. Opp’n & Reply at 36–37. Their reliance is misplaced. In
Toensing, this Court found the Vaughn index sufficient because “the dates of the documents and
the names of their authors [were] irrelevant to a determination of whether the documents [were]
20
protected as attorney work product[,]” and the agency had identified each document as having
been prepared by agency attorneys, albeit without providing their names. 999 F. Supp. 2d at 59–
60.
By contrast, here, for many of the disputed documents, without more information about
the authors, the Court cannot determine whether the documents contain information “obtained
from a person” rather than information generated within Treasury. See, e.g., GM Vaughn Index
at Doc. Nos. 10–12 (drafts of legal pleadings with no identified author); id. at Doc. Nos. 17–18
(presentations with no identified author); id. at Doc. No. 59 (“email chain regarding draft notes
and charts in connection with Section 363 Sale” with no identified authors or email addresses
that would assist in identifying authors); id. at Doc. No. 60 (“email chain regarding strategy
discussion in connection with Section 363 Sale” with no identified authors or email addresses
that would assist in identifying authors); id. at Doc. No. 196 (“[e]mail chain regarding strategy
for dealers in connection with restructuring efforts” with no identified authors or email addresses
that would assist in identifying authors); Chrysler Vaughn Index at 29, HHR-DOT2-00345086,
HHR-DOT2-00345246, HHR-DOT2-00345262, HHR-DOT2-00345294, HHR-DOT2-
00345363, HHR-DOT2-00345425, HHR-DOT2-00345570, HHR-DOT2-00345797, and HHR-
DOT2-00346653 (“email chain regarding Chrysler’s funding requests” with no identified authors
or email addresses that would assist in identifying authors); id. at 31, HHR-DOT2-00346934
(“email chain concerning Chrysler’s borrowing request from the Treasury” with no identified
authors or email addresses that would assist in identifying authors); id. at 34, HHR-DOT2-
00347885 and HHR-DOT2-00348168 (“email chain discussing Chrysler’s labor costs” with no
identified authors or email addresses that would assist in identifying authors); id. at 58, HHR-
DOT2-00027799, HHR-DOT2-00028214, HHR-DOT2-00038182, HHR-DOT2-00038185,
21
HHR-DOT2-00150289, HHR-DOT2-00460713, and HHR-DOT2-00028303 (presentation with
no identified author). The same is true for entries naming certain authors but failing to identify
their business or government affiliations by, for example, providing their email addresses. See,
e.g., GM Vaughn Index at Doc. No. 189, 195, 200 (“document[s] regarding message from Ken
Cole to Congress in connection with GM long-term plan with its dealers”); Chrysler Vaughn
Index at 2, HHR-DOT2-00119592 (requesting redaction of text in emails from “John E. Mazey”
and “Peter Chadwick”). The Court will not speculate about who these individuals are and their
government or business affiliation.
Chrysler’s failure to identify authors and/or their affiliations for some documents is
particularly puzzling given that some entries in its Vaughn Index contain detailed information
about the authors and request specific redactions accordingly. See, e.g., Chrysler Vaughn Index
at 3–5, HHR-DOT2-00129842, HHR-DOT2-00129850, HHR-DOT2-00129858, HHRDOT2-
00130694, HHR-DOT2-00130697, HHR-DOT2-00183224, HHR-DOT2-00183262, and HHR-
DOT2-00183265 (requesting redactions in “email chains . . . regarding product liability issues”
of emails sent by an individual with a Chrysler email address, “Holly Leese
(hel@chrysler.com)”); id. at 32, HHR-DOT2-00347680 (requesting redaction of entire text of
email from an individual with a Chrysler email address, “rek6@chrysler.com”). The same
cannot be said for GM, as its Vaughn Index is generally consistently vague with respect to
authors or affiliations. See, e.g., GM Vaughn Index at Doc. Nos. 468, 470 (“[e]mail from
attorneys”); id. at Doc. No. 533 (“email from Harry Wilson”); id. at Doc. No. 537 (“[e]mail from
Brian Osias to Walter Borsi”). Without adequate information about whether an author is
affiliated with GM, Chrysler, or Treasury, the Court cannot determine if the information within a
22
particular document was “obtained from a person” and qualifies for withholding under
Exemption 4.
The plaintiff specifically contests the defendants’ alleged refusal to “segregate[] and
release[]” certain emails based on authors. Pl.’s Mem. at 26–27, 27 n.35 (listing examples, but
no comprehensive list, of documents or Bates numbers). In response, the defendants make the
conclusory representation that the documents have been redacted to withhold only information
generated by GM or Chrysler. See Jt. Opp’n & Reply at 15.
With respect to redactions, the D.C. Circuit has acknowledged that establishing the non-
segregability of non-exempt material “presents problems for the agency since . . . segregability
depends entirely on what information is in a document and how it is presented.” Mead Data
Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977). Therefore, although
“agencies should not be forced to provide such a detailed justification that would itself
compromise the secret nature of potentially exempt information,” agencies “must be required to
provide the reasons behind their conclusions in order that they may be challenged by FOIA
plaintiffs and reviewed by the courts.” Id. To this end, the Circuit has said that “[i]n addition to
a statement of its reasons, an agency should also describe what proportion of the information in a
document is non-exempt and how that material is dispersed throughout the document.” Id.
Under Mead Data, if a small proportion of the information is non-exempt, the agency's
explanatory burden is less, and if a larger proportion of the information is non-exempt, “the
courts should require a high standard of proof for an agency claim that the burden of separation
justifies nondisclosure or that disclosure of the non-exempt material would indirectly reveal the
exempt information.” Id. On the other hand, more recent D.C. Circuit decisions have held that
an agency may satisfy its segregability obligations by (1) providing a Vaughn index that
23
adequately describes each withheld document and the exemption under which it was withheld;
and (2) submitting a declaration attesting that the agency released all segregable material. See,
e.g., Loving v. Dep’t of Defense, 550 F.3d 32, 41 (D.C. Cir. 2008) (stating that “the description
of the document set forth in the Vaughn index and the agency's declaration that it released all
segregable material” are “sufficient for [the segregability] determination”); Johnson v. Exec.
Office for U.S. Attys., 310 F.3d 771, 776 (D.C. Cir. 2002) (upholding agency's segregation efforts
based on “comprehensive Vaughn index” and “the affidavits of [agency officials]”).
Notwithstanding the defendants’ conclusory representation that “[t]he redacted portions
of the email chains are communications actually sent from individuals at GM or Chrysler,
responses from Treasury that would otherwise reveal the content of the GM or Chrysler
communications, or emails from Treasury containing confidential information that GM or
Chrysler provided to Treasury,” Jt. Opp’n & Reply at 15, the GM Vaughn Index has insufficient
detail for the Court to determine whether the documents have been properly redacted. For each
of the GM entries cited by the plaintiff, see Pl.’s Mem. at 27 n.35; GM Vaughn Index at Doc
Nos. 514, 521, 524, 526, 537, the Court is unable to determine what text was redacted from
which emails in the chain and, thus, has no way to determine whether the redacted information
contained in the emails may have been “obtained from a person.”
By contrast, the Chrysler Vaughn Index mostly contains sufficient detail for the Court to
make a determination with respect to the “obtained from a person” requirement of Exemption 4. 8
See, e.g., Chrysler Vaughn Index at 5, HHR-DOT2-00150691 (specifying certain sentences
redacted in emails from an individual with a Chrysler email address to a Treasury
representative). While the plaintiff complains that certain emails generated by government
8
The Court must still determine, as discussed in Section III.A, whether the withheld documents are “confidential”
for application of Exemption 4.
24
representatives have been redacted in their entirety, see, e.g., id. at 6, HHR-DOT2-00156206,
HHR-DOT2-00156217, and HHR-DOT2-00156221 (redacting “Ron Bloom’s [Task Force
member] email of 4:47 PM”), these emails appear to be part of email chains that may include
prior emails authored by Chrysler representatives, see, e.g., id. (redacting “The second and third
paragraphs of Bob Nardelli’s email of 15:05, starting with ‘We/Chrysler want to assure . . .’”).
For such entries, the Court could infer that the redacted information was “obtained from a
person.” See Muttitt v. Dep’t of State, 926 F. Supp. 2d 284, 310 (D.D.C. 2013) (“[A]gencies are
entitled to a presumption that they complied with the obligation to disclose reasonably
segregable material, which must be overcome by some quantum of evidence by the requester.”
(internal quotation marks omitted) (quoting Sussman, 494 F.3d at 1117)). The defendants,
however, have failed to identify exactly which redacted emails are part of such email chains.
Also, in any event, some Chrysler documents have been withheld in their entirety without
sufficient explanation. See, e.g., Chrysler Vaughn Index at 28, HHR-DOT2-00342947 (“email
from Brian Oasis [Task Force member] to Robert Manzo and John Rooney discussing Chrysler’s
DIP financing needs”); id. at 31, HHR-DOT2-00346934 (“email chain concerning Chrysler’s
borrowing request from the Treasury”).
Consequently, the defendants shall revise their declarations and/or Vaughn indices, which
generally provide insufficient explanation, to attempt to sustain their burden of showing
Exemption 4 applies to the disputed documents. See Muttitt, 926 F. Supp. 3d at 310 (“[A]bsent a
sufficient Vaughn index . . . , the [agency] must provide other facts, beyond its good-faith
assurances, that would establish that it released all reasonably segregable non-exempt
information . . . . Such information could include, for example, a description of ‘what proportion
of the information in a document is non-exempt and how that material is dispersed throughout
25
the document.’”) (quoting Mead Data, 566 F.2d at 261)). As directed above, the defendants
should submit one combined Vaughn index with numbered entries for all remaining disputed
documents, indicating for each entry how the information has been segregated and released, to
enable a ruling on whether each specific contested piece of information was “obtained from a
person.” The parties will then have the opportunity to renew their dispositive motions and
provide the Court with an exhaustive list and explanation of why each specific contested piece of
information was or was not “obtained from a person.”
D. Sufficiency of Showing That Withheld Information is Confidential
The dispute over whether documents have been properly withheld as exempt under the
FOIA’s Exemption 4 rests principally on whether the documents are “confidential.” For the
reasons discussed below, the defendants have failed to show sufficiently either of the two prongs
necessary to demonstrate the withheld documents are “confidential” within the meaning of
Exemption 4.
1. The Government’s Ability to Obtain Necessary Information
The defendants argue that disclosure of the disputed documents “would impair
Treasury’s ability to obtain this type of information from companies in the future” because
“companies operating in competitive environments would be reluctant to share such information
with Treasury in the future,” Jt. Mem. at 24; Cochrane Decl. ¶ 37, thereby “compromis[ing] the
effectiveness of government programs that may be dependent on sensitive information from such
companies,” Jt. Mem. at 29, 31; Cochrane Decl. ¶ 37. This argument is unavailing for two
reasons.
First, Treasury will be able to obtain whatever information it demands from companies
for participation in a government program providing significant benefits to the participants
26
because, otherwise, the companies will be unable to participate. See Ctr. for Auto Safety, 244 F.
3d at 148 (“When the Government obtains information as part of a mandatory submission, the
Government’s access to the information normally is not seriously threatened by disclosure.”
(citing Critical Mass, 975 F.2d at 878)); Critical Mass, 975 F.2d at 878 (“[B]ecause the
concessioners [were] required to provide this financial information . . . , there is presumably no
danger that public disclosure will impair the ability of the Government to obtain this information
in the future” (second alteration in original)). If a company wants the benefits offered, it will
comply with demands for information, no matter how sensitive.
Second, the “continued reliability” or “quality” of the information obtained by the
government, see id., is assumed because companies required to submit information would risk
losing the government benefit for failing to comply fully and completely. For example, the loan
agreements executed with Treasury in this case require “true and complete disclosure” or the
borrower risks default of the loan, see Pl.’s Mot., Ex. V (“Chrysler Loan Agreement”) at § 5.12,
ECF No. 43; id., Ex. W (“GM Loan Agreement”) at § 6.12, ECF No. 43-1. The alternative to
full compliance with Treasury loan agreements is a potentially draconian penalty: the
company’s bankruptcy. It strains credulity to believe that the specter of potential disclosure
under the FOIA of certain information required to be submitted to Treasury to obtain a company-
saving loan would lead a company to choose instead to go out of business. Accord Pub. Citizen
v. Dep’t of Health & Human Servs., 975 F. Supp. 2d 81, 112–13 (D.D.C. 2013) (“Pub. Citizen v.
HHS”). There is abundant evidence in the record that GM and Chrysler had to take the
government’s bailout or go bankrupt, see Pl.’s Reply at 10 & n.7 (citing record evidence), and
the defendants do not dispute this, see generally Jt. Opp’n & Reply.
27
Therefore, the Court finds the defendants have not shown how the release of any of the
withheld documents will “impair the Government’s ability to obtain necessary information in the
future.” Nat’l Parks, 498 F.2d at 770. Accordingly, for the defendants to sustain their burden to
show that Exemption 4 applies, they must sufficiently show that the release of the withheld
documents would likely cause GM or Chrysler substantial competitive harm.
2. Likelihood of Substantial Competitive Harm
The plaintiff argues that Treasury has failed to show that disclosure of the withheld
documents is likely to cause substantial competitive injury for a number of reasons, including:
(1) the effect of disclosure on the companies’ “suppliers, dealers, customers (and potential
customers), unions and employees” is immaterial, Pl.’s Mem. at 33–34 (quoting GM Decl. ¶ 13;
citing Chrysler Decl. ¶ 8) (emphasis omitted), as the agency must show the companies will be
harmed by the “affirmative use of proprietary information by competitors,” id. at 34 (emphasis
omitted) (quoting United Techs. Corp., 601 F.3d at 563–64); (2) the companies’ requests to
Treasury for confidentiality are irrelevant, id. at 34; (3) “Treasury’s assertions of competitive
harm are too conclusory[,]” partly because it fails to explain how disclosure would result in
“substantial” competitive injury, id. at 35; (4) many of the withheld documents contain old
information related to the old companies or information that is otherwise outdated, id. at 38–40;
and (5) much of the withheld information is already publicly available, id. at 41–44. The Court
addresses each of the plaintiff’s arguments ad seriatim in assessing whether the defendants have
sufficiently shown that release of the withheld information is likely to “cause substantial harm to
the competitive position of the person from whom the information was obtained.” Nat’l Parks,
498 F.2d at 770; see also Pub. Citizen Health Research Grp., 704 F.2d at 1290–91. While the
deficiencies in the Vaughn indices make it difficult, if not generally impossible, to resolve
28
disputes as to any of the nine categories of documents withheld, let alone as to individual
documents, the principles below should be considered in the revised Vaughn index to be
submitted with renewed summary judgment filings.
a. Harm May Come From Non-Direct Competitors
The D.C. Circuit has emphasized that:
The important point for competitive harm in the FOIA context . . . is that it be
limited to harm flowing from the affirmative use of proprietary information by
competitors. Competitive harm should not be taken to mean simply any injury to
competitive position, as might flow from customer or employee disgruntlement or
from . . . embarrassing publicity . . . .
Pub. Citizen Health Research Grp., 704 F.2d at 1291 n.30 (emphasis in original) (quoting Mark
Q. Connelly, Secrets and Smokescreens: A Legal and Economic Analysis of Government
Disclosures of Business Data, 1981 WIS. L. REV. 207, 235–36 (1981)); see also Jurewicz, 741
F.3d at 1331 (“Exemption 4 . . . ‘does not guard against mere embarrassment in the marketplace
or reputational injury’ . . . [and] substantial competitive harm must ‘flow from the affirmative
use of proprietary information by competitors.’” (quoting United Techs., 601 F.3d at 563–64)).
Thus, to the extent that the defendants oppose the release of documents based on the potential
effect of release on “marketplace goodwill,” Jt. Mem. at 16, the defendants rely on too broad a
definition of competitive harm.
On the other hand, the defendants’ argument that competition should be viewed
“holistic[ally,]” Jt. Opp’n & Reply at 21, and “GM’s and Chrysler’s relations with suppliers,
dealers, and other constituents fundamentally affect their ability to compete in the auto-
manufacturing sector[,]” id. at 20–21, is not without merit, contrary to the plaintiff’s view. The
D.C. Circuit has recognized that the use of information by consumers, suppliers, labor unions,
and other entities, even if those entities are not direct competitors, may be detrimental to a
29
company’s competitive position. See Worthington Compressors, Inc. v. Costle, 662 F.2d 45, 52
n.43 (D.C. Cir. 1981); Nat’l Parks & Conservation Ass’n v. Kleppe, 547 F.2d 673, 684 (D.C. Cir.
1976) (affirming the district court’s finding of competitive harm, reasoning in part that
“[s]uppliers, contractors, labor unions and creditors, too, could use [the] information to bargain
for higher prices, wages or interest rates, while the concessioner’s unregulated competitors
would not be similarly exposed”).
That said, the defendants’ bald assertions that entities other than direct competitors could
use the disputed information, if disclosed, to their own competitive advantages, without any
explanation of how such entities could use the information, is insufficient and unconvincing. See
GM Decl. ¶ 13 (“GM operates in an extremely competitive environment with respect to a wide
range of constituencies, including competitors, suppliers, dealers, customers (and potential
customers), unions, and employees regarding a wide range of matters” and “each of these
constituencies could, and likely would, use [the disputed information] to its own advantage . . .
.”); Chrysler Decl. ¶ 8 (“Chrysler operates in an extremely competitive environment with respect
to a wide range of constituencies, including competitors, dealers, suppliers, customers, unions,
and employees . . . and insights into Chrysler’s deliberations and negotiations . . . could be used
to the advantage of any, or all, of these constituencies . . . .”). To meet their burden to show GM
and Chrysler will likely be competitively harmed by the use of the disputed information by
competitors or other entities, the defendants will need to better explain how such entities will
likely use the information to cause competitive harm.
b. Requests For or Promises of Confidentiality Are Not a Basis for
Withholding Under Exemption 4
As the plaintiff correctly notes, see Pl.’s Mem. at 34, “Congress has made clear both that
the federal courts, and not the administrative agencies, are ultimately responsible for construing
30
the language of the FOIA, and that agencies cannot alter the dictates of the Act by their own
express or implied promises of confidentiality,” Pub. Citizen Health Research Grp., 704 F.2d at
1287 (citations omitted); see also GC Micro Corp. v. Def. Logistics Agency, 33 F.3d 1109, 1113
(9th Cir. 1994) (“[W]hether the government has promised to keep the information confidential[]
is not dispositive under Exemption 4.”) (citing authorities); Petkas v. Staats, 501 F.2d 887, 889
(D.C. Cir. 1974) (“Nor can a promise of confidentiality in and of itself defeat the right of
disclosure.”) (citing authorities). Thus, the defendants may not rely on the confidentiality
provisions in the TARP loan agreements as a basis for withholding documents.
The defendants deny that Treasury has withheld documents because of the confidentiality
provisions in the TARP loan documents, see Jt. Opp’n & Reply at 22, and contend only that
those provisions “are relevant insofar as they show a longstanding expectation that confidential
commercial information could flow to Treasury as part of the TARP process,” id. at 23. Notably,
however, the Chrysler Vaughn Index indicates that one particular document—a letter from
Chrysler attorneys to Treasury “requesting FOIA confidential treatment of documents being
disclosed to Treasury and of the letter itself”—has been “withheld in its entirely due to the
request for confidential treatment and because of the confidential commercial information that is
contained in and referred to in the letter.” Chrysler Vaughn Index at 53, HHR-DOT2-00153630;
see also id. at 84, HHR-DOT2-00023370 (withheld presentation regarding Chrysler’s
confidential submissions to Treasury” which “Chrysler submitted . . . with the explicit request
that the document be kept confidential”). A company’s request for confidential treatment is not a
sufficient basis for withholding information. See Raher v. Fed. Bureau of Prisons, 749 F. Supp.
2d 1148, 1162 (D. Or. 2010) (“[T]he test for confidentiality is not based on the subjective
expectation of the submitter that the information is confidential . . . .”); Dow Jones Co. v. FERC,
31
219 F.R.D. 167, 178 (C.D. Cal. 2003) (“If the Court were to accept [the] defendant’s argument,
any agency could, theoretically, simply hand out promises of confidentiality to individuals who
gave information in order to avoid judicial review as to whether a record can be withheld.”).
Thus, this entry and others are simply inadequate to explain why or how the release of withheld
documents, or segregable information therein, could possibly cause the companies substantial
competitive harm.
c. A Showing of Substantial Competitive Harm is Required
As discussed, supra Part III.C, “conclusory and generalized allegations of exemptions are
unacceptable.” Morley, 508 F.3d at 1115 (internal quotation marks omitted). The plaintiff
accuses the defendants of failing to assert in their opening brief that any competitive injury
would be “substantial” and criticizes the defendants for failing to explain how competitors or
suppliers would use withheld information to cause the companies substantial competitive injury.
See Pl.’s Mem. at 35–36. The plaintiff similarly criticizes other aspects of the Vaughn indices,
arguing that they contain conclusory and boilerplate statements of competitive harm. See id. at
36. In response, the defendants argue that they are required only to show a “likelihood of
substantial competitive injury,” Jt. Opp’n & Reply at 21 (quoting Nat’l Parks & Conservation
Ass’n, 547 F.2d at 679), and “because no one can be expected to divine future events, it would
be impossible for Defendants and Chrysler to describe with specificity the exact harm that will
befall GM and Chrysler,” id. The defendants also argue they are not required to describe the
disputed information in such specific detail that the descriptions would effectively reveal the
exempt material. Id. The defendants are correct about the law, see McDonnell Douglas Corp. v.
U.S. Dep’t of Air Force, 375 F.3d 1182, 1187 (D.C. Cir. 2004) (party invoking Exemption 4 is
not required “to prove disclosure certainly would cause it substantial competitive harm, but only
32
that disclosure would ‘likely’ do so”), but in the context of the Vaughn indices submitted in this
case, their response is weak and misses the mark.
Merely conclusory statements about competitive harm, even if repeated numerous times,
are not sufficient. See Pub. Citizen Health Research Grp., 704 F.2d at 1290–91 (“Conclusory
and generalized allegations of substantial competitive harm, of course, are unacceptable and
cannot support an agency’s decision to withhold requested documents.”); Occidental Petroleum
Corp. v. SEC, 873 F.2d 325, 342 (D.C. Cir. 1989) (requiring more than “conclusory statement”
regarding substantial competitive harm); Wash. Post Co. v. U.S. Dep’t of Health & Human
Servs., 690 F.2d 252, 269 (D.C.Cir.1982) (“[T]he government produced no evidence except a
conclusory affidavit by the HHS director of personnel policy. Thus, the government has not yet
established its Exemption 4 claim.”); Mead Data, 566 F.2d at 258 (“An agency cannot meet its
statutory burden of justification by conclusory allegations of possible harm.”); COMPTEL, 910
F. Supp. 2d at 117 (“[C]onclusory assertions, without any additional description of the contents
of the redacted information or reasons for non-disclosure, are insufficient to show that
Exemption 4 was appropriately invoked.”); Biles v. U.S. Dep’t of Health & Human Servs., 931 F.
Supp. 2d 211, 223 (D.D.C. 2013) (“[C]onclusory claims of commercial harm . . . are therefore
insufficient to establish [the agency’s] burden of proof.”). Even with deference given to agency
declarations, “deference does not mean blind acceptance.” Mudge Rose Guthrie Alexander &
Ferdon v. U.S. Int’l Trade Comm’n, 846 F.2d 1527, 1532 (D.C. Cir.1988).
Similar to the deficiencies previously discussed, many entries in the Vaughn indices here
are insufficient to sustain the defendants’ burden of showing a likelihood of substantial
competitive harm. The GM Vaughn Index is, on the whole, entirely insufficient to show
competitive harm. It lists the same boilerplate, ambiguous descriptions and reasons for
33
withholding countless category (3) documents. See, e.g., GM Vaughn Index at Doc. No. 37
(“5/13/09 Draft of Business Issues List for DIP Term Sheet” relating to “[s]pecifically, . . . draft
agreements and legal documents, discussions, options, opinions, and/or analysis relating to
transactions being considered in 2009 by GM, including restructuring efforts”); id. at Doc. No.
106 (“7/2/09 Presentation regarding 363 Sale Outstanding Issues” relating to “[s]pecifically, . . .
draft agreements and legal documents, discussions, options, opinions, and/or analysis relating to
transactions being considered in 2009 by GM, including restructuring efforts”); id. at Doc. No.
503 (“8/11/09 Presentation regarding GM Discussion in connection with 363 Sale” relating to
“[s]pecifically, . . . draft agreements and legal documents, discussions, options, opinions, and/or
analysis relating to transactions being considered in 2009 by GM, including restructuring
efforts”). While true that “a Vaughn index may . . . contain brief or categorical descriptions
when necessary to prevent the litigation process from revealing the very information the agency
hopes to protect,” ACLU v. CIA, 710 F.3d 422, 432 (D.C. Cir. 2013), cursory statements do not
justify withholding even under categorical methodology, see Prison Legal News v. Samuels, 787
F.3d 1142, 1149 (D.C. Cir. 2015). Indeed, “[t]he government may [only] justify its withholdings
and redactions ‘category-of-document by category-of-document, so long as its definitions of
relevant categories are sufficiently distinct to allow a court to determine whether specific
claimed exemptions are properly applied.’” Id. at 1149–50 (quoting CREW, 746 F.3d at 1088).
Here, they are not.
d. Competitive Harm From Old Information is Questionable
Relatedly, and most significantly, the defendants have not sufficiently explained how the
release of documents pertaining to Old GM or Old Chrysler or otherwise containing dated, six-
year-old financial information could be used by their competitors to cause them harm. As a
34
threshold matter, because of the deficiencies in the Vaughn indices, the Court cannot even
determine whether certain undated information pertains to the old or new companies. See, e.g.,
GM Vaughn Index at Doc. No. 16 (undated “[d]etailed financials . . . in connection with outlook
and liquidity analysis”); id. at Doc. No. 31 (undated “[d]etailed financials . . . in connection with
13-week outlook and restructuring efforts”). Likewise, the Court cannot discern from many
entries how the release of old information could possibly be used by competitors affirmatively to
harm the companies today at all, let alone substantially. See, e.g., GM Vaughn Index at Doc. No.
466 (information from a draft 2009 media announcement, which GM claims “is a confidential
draft document related to GM product offerings and technology”).
As the plaintiff notes, the Vaughn indices include many entries related only to the old
companies, see, e.g., Chrysler Vaughn Index at 11, HHR-DOT2-00037687 (“email chain
regarding issues related to Oldco”); id. at 61, HHR-DOT2-00040314 and HHR-DOT2-00040361
(presentation regarding Old Carco), including email exchanges about liabilities left behind with
the old companies, see, e.g., id. at 16, HHR-DOT2-00308392 (“email chain regarding product
liability”); id. at 75, HHR-DOT2-00175339 (document regarding product liability issues); GM
Vaughn Index at Doc. No. 17 (“5/9/09 Presentation-GM 363 Preparation Update Asset and
Liability Separation Process”); id. at Doc. Nos. 490–91 (charts of “OldCo Rent Analysis and
Decommission Costs”), old financial statements, see, e.g., GM Vaughn Index at Doc. 93 (“2007
Financial Statements”), and documents about liquidation, see, e.g., Chrysler Vaughn Index at 28,
HHR-DOT2-00343725 (“email exchange . . . regarding the wind down budget for Oldco”); id. at
60, HHR-DOT2-00039461, HHR-DOT2-00048772, and HHR-DOT2-00368493 (“presentation
regarding ‘Old Carco LLC Liquidation Budget’”); id. at 75 HHR-DOT2-00149114, HHR-
DOT2-00149128, and HHR-DOT2-00149555 (“presentation regarding ‘Preliminary
35
Hypothetical Liquidation Analysis’”). Also withheld are documents with six-year-old financial
projections and business plans. See, e.g., id. at 75, HHR-DOT2-00155012 (“2009 presentation . .
. regarding projected business plans for the next several years”); GM Vaughn Index at Doc. Nos.
31, 48–54 (“[d]etailed financials, including operating and financial results, liquidity outlook and
cash flow, in connection with 13-week outlook and restructuring efforts”); id. at Doc. No. 130
(containing “tables of financial data”).
The defendants make much of the fact that GM bought substantially all of Old GM’s
assets, including intellectual property and business records, see GM Decl. ¶¶ 3–4, and Chrysler
bought substantially all of Old Chrysler’s assets, see Chrysler Decl. ¶ 2, to argue that the
companies would be competitively harmed by the release of information about the assets they
purchased, see Jt. Opp’n & Reply at 23–24. Notably, however, the defendants do not point
specifically to any documents about assets purchased by the new companies, nor do they address
the plaintiff’s argument with respect to documents about the old companies’ liabilities. See
generally Jt. Opp’n & Reply; see also Pl.’s Reply at 15–16.
The defendants’ concern about documents regarding certain assets, particularly, for
example, about intellectual property or research and development may be warranted. See Ctr.
for Auto Safety v. Nat’l Highway Traffic Safety Admin., 93 F. Supp. 2d 1, 16 (D.D.C. 2000)
(explaining that “[i]nformation does not become stale merely because it is old” and recognizing
that information about “years of research and development and enormous financial investment
that went into developing the air bag systems used in today’s cars,” if disclosed, “would allow a
competitor to determine the direction of the company’s past and current efforts in research and
development (and thus beat them to new advancements), and would give competitors an edge in
improving their own technology”), rev’d on other grounds, 244 F.3d 144 (D.C. Cir. 2001).
36
Again, however, the defendants have not provided sufficient information in the Vaughn indices
for the Court to determine whether their concerns are legitimate for the documents withheld that
allegedly contain information about the assets purchased. To enable sufficient review, the
defendants must articulate whether withheld documents contain information about assets
purchased, specifying the type of assets and whether the assets belong with the new as opposed
to the old companies—because, as the plaintiff notes, not all assets were purchased by the new
companies. See Pl.’s Reply at 15. Information about assets belonging to the old companies must
be segregated and released.
Additionally, because of the defendants’ utter lack of response regarding documents
about the old companies’ liabilities, the Court deems such arguments conceded, and to the extent
withheld documents contain information about the old companies’ liabilities, that information
must also be segregated and released. 9 See, e.g., Chrysler Vaughn Index at 16, HHR-DOT2-
00308392 (“email chain regarding product liability”); id. at 75, HHR-DOT2-00175339
(document regarding product liability issues); GM Vaughn Index at Doc. No. 17 (“5/9/09
Presentation-GM 363 Preparation Update Asset and Liability Separation Process”); id. at Doc.
Nos. 490–91 (charts of “OldCo Rent Analysis and Decommission costs”).
The defendants also argue that the “historical and ‘old’ financial information can be
extrapolated and used to interpret GM’s and Chrysler’s current or future projections,” or “used to
determine negotiation strategies[,] . . . approaches in future acquisitions[,]” or “projected
9
“It is well understood in this Circuit that when a [party] files an opposition to a dispositive motion and
addresses only certain arguments raised by [the opposing party], a court may treat those arguments that the [party]
failed to address as conceded.” Hopkins v. Women’s Div., Gen. Bd. of Glob. Ministries, 284 F. Supp. 2d 15, 25
(D.D.C. 2003) (citing FDIC v. Bender, 127 F.3d 58, 67–68 (D.C. Cir. 1997)); see also Texas v. United States, No.
14-5151, 2015 WL 4910078, at *5 (D.C. Cir. Aug. 18, 2015) (affirming “the district court’s enforcement of its local
rule [LCvR 7(b)] requiring the timely filing of oppositions that actually address the contentions of the movant”);
Wannall v. Honeywell, Inc., 775 F.3d 425, 428 (D.C. Cir. 2014) (“[I]f a party files an opposition to a motion and
therein addresses only some of the movant’s arguments, the court may treat the unaddressed arguments as
conceded.”).
37
business opportunities.” Jt. Opp’n & Reply at 25. These arguments are unconvincing,
particularly in light of the unrebutted expert testimony presented by the plaintiff. According to
the plaintiff’s expert, Joan B. Claybrook, a former Administrator of the National Highway
Traffic Safety Administration (“NHTSA”), see Decl. of Joan B. Claybrook (Jan. 17, 2015)
(“Claybrook Decl.”) ¶ 3, ECF No. 40-3, “[m]any of the reasons the old companies were having
financial difficulties relate to their own mismanagement and failure to respond to consumer
needs and preferences. Therefore, information concerning the operation of the ‘old’ mismanaged
companies would be of little competitive value to any current competitor of GM and Chrysler,”
id. ¶ 20. Additionally, “information that may pertain to the ‘new’ companies . . . is now so old
that it would be of little competitive value to any of the other auto companies,” as “the auto
companies rarely plan for more than five years in the future because of the many market,
manufacturing, and regulatory variables that inevitably affect such plans.” Id. ¶ 22. 10 This
expert opinion is bolstered by the fact that GM’s 2009 Restructuring Plan submitted to Treasury
to obtain more TARP funding, as the plaintiff points out, did not include projections beyond five
years. See Pl.’s Mem. at 40; Pl.’s Mot., Ex. E (“GM Restructuring Plan”) at 26–32, ECF No. 41-
4 (discussing “key metrics” and projections from 2009 only through 2014). But see Pl.’s Mot.,
Ex. Z (“Chrysler Restructuring Plan”) at 6–7, ECF No. 43-4 (showing key metrics and
projections from 2009 through 2016). The defendants have not submitted any evidence to
support their view that five-year old information would still be relevant and useful to
competitors. Cf. Braintree Elec. Light Dep’t v. Dep’t of Energy, 494 F. Supp. 287, 291 (D.D.C.
10
The defendants cursorily argue that the Claybrook declaration “provide[s] no grounds for piercing the
confidentiality protections of Exemption 4” because it is “conclusory and merely repeat[s] the legal arguments
presented in Plaintiff’s brief.” Jt. Opp’n & Reply at 28. This argument is meritless. Expert opinion that
information regarding the old companies “would be of little competitive value to any current competitor” and that
“auto companies rarely plan for more than five years in the future” is hardly conclusory.
38
1980) (explaining “[o]ne of the key issues in any exemption 4 case is the current significance of
the commercial data[,]” and finding old data properly withheld under Exemption 4 in light of
evidence that the market was similar to the past market and defendant’s explanation “that its
business has changed little” in the relevant time period). Thus, the Court agrees with the
plaintiff. Practices of the old companies cannot reasonably be expected to affect the competitive
position of the new companies, particularly because the point of restructuring the companies was
to leave such practices behind. 11
e. Public Availability of Information Affects the Likelihood of
Competitive Harm
Lastly, the plaintiffs argue that much of the withheld information, or similar
information—including “much of the companies’ financial and other information leading up to,
and in the wake of, the § 363 Sales” and “specific strategies employed in restructuring each of
these companies”—is already publicly available in the Restructuring Plans the companies
submitted to Treasury, annual 10-K and other required SEC filings, automotive media sources,
various Congressional and other governmental reports, and a book published in 2010 about the
bailouts. Pl.’s Mem. at 41–43. The defendants’ generalized, sweeping allegations that old
business records “can be extrapolated and used to interpret GM and Chrysler’s current or future
projections” or reveal the companies’ “negotiating positions, timing, approaches, and strategies,”
11
The cases relied upon by the defendants as support for their assertion that old financial data continues to be
useful to competitors are distinguishable because those cases involve historical data from companies that continued
to exist in the same form, not companies like GM and Chrysler that were entirely restructured pursuant to a
government bailout. See People for Ethical Treatment of Animals v. U.S. Dep’t of Agric., No. Civ. 03 C 195-SBC,
2015 WL 1241141, at *10 (D.D.C. May 24, 2005) (finding company’s “detailed financial records from three and
four years ago [were] not so old as to render them useless to competitors” in part because the agency did “not
establish[] a significant change in the competitive industry” in the last four years and in part because “many
documents contain[ed] forward-looking information such as the intended use of the loan proceeds”); Timken Co. v.
U.S. Customs Serv., No. Civ. A. 79-1736, 1983 WL 486422, at *4–5 (D.D.C. June 24, 1983) (finding five to ten-
year old information would reveal “complete financial pictures” of the companies and “valuable insights into . . .
pricing and marketing strategies”).
39
Jt. Opp’n & Reply at 25, invited the plaintiff’s generalized, sweeping response with reliance on
an approximately 350-page book submitted on the record, see Pl.’s SMF ¶ 42 (citing Steven
Rattner, Overhaul: An Insider’s Account of the Obama Administration’s Emergency rescue of
the Auto Industry (2010)). The plaintiff alleges this book reveals the companies’ negotiation
approaches and strategies and demonstrates that most approaches and strategies employed by
GM and Chrysler in 2009 originated not with the companies but with members of the Task
Force. See Pl.’s Reply at 18–19. The defendants respond that the plaintiff has failed to meet its
burden to show that any publicly available information is as specific as the withheld information
and, thus, any alleged public disclosure does not require the release of the information. Jt. Opp’n
& Reply at 27–28.
The defendants confuse the plaintiff’s argument as asserting disclosure under the public
domain doctrine. 12 The plaintiff does not argue the documents are improperly withheld under
the public domain doctrine, however, and instead argues that the availability of similar
information belies the defendants’ assertion about the risk of substantial competitive injury from
the release of the documents. See Pl.’s Reply at 20–21 (arguing the plaintiff “relies on the
voluminous publicly available information about GM and Chrysler[] . . . simply to further
demonstrate the unlikelihood that release of additional information” would cause the companies
substantial competitive injury). Indeed, “[p]ublic availability of information defeats an argument
that the disclosure of the information would likely cause competitive harm.” Nat’l Cmty.
12
Under what has been termed the “public-domain 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 Davis v. U.S. Dep’t of Justice, 968 F.2d 1276, 1279 (D.C. Cir. 1992) (“[T]he
government cannot rely on an otherwise valid exemption claim to justify withholding information that has been
‘officially acknowledged’ or is in the ‘public domain.’” (citing Afshar v. Dep’t of State, 702 F.2d 1125, 1130–34
(D.C. Cir. 1983))). This exception is narrow and, if applicable, requires the information requested to (1) “be as
specific as the information previously released[,]” (2) “match the information previously disclosed[,]” and (3)
“already have been made public through an official and documented disclosure.” Fitzgibbon v. CIA, 911 F.2d 755,
765 (D.C. Cir. 1990) (citing Afshar, 702 F.2d at 1133).
40
Reinvestment Coal. v. Nat’l Credit Union Admin., 290 F. Supp. 2d 124, 134 (D.D.C. 2003)
(citing Worthington Compressors, 662 F.2d at 51; CNA Fin. Corp. v. Donovan, 830 F.2d 1132,
1154 (D.C. Cir. 1987)). Thus, to the extent that the same negotiation and business strategies
which the defendants seek to protect have been revealed already to the public, release of the
information would not cause GM or Chrysler substantial competitive harm.
In sum, with respect to competitive harm, the defendants have not provided a sufficient
showing to sustain summary judgment in their favor. The defendants may attempt to
demonstrate, in a revised Vaughn index and/or supplemental declarations, that disclosure of the
withheld documents would likely cause substantial competitive harm or, alternatively, release the
withheld documents. Any supplemental support for continued withholding of any of the
challenged documents must also address whether any reasonably segregable portions of the
withheld documents have been released, keeping in mind that an “agency cannot justify
withholding an entire document simply by showing that it contains some exempt material.”
Hodge v. FBI, 703 F.3d 575, 582 (D.C. Cir. 2013) (quoting Stolt-Nielsen Transp. Grp., 534 F.3d
at 734).
E. The Plaintiff’s Request for In Camera Review
Based on the fact that the defendants apparently withheld for several years certain
documents in their entirety that have since been released in full, the plaintiff requests that the
Court conduct an in camera review of a sample of the records at issue. See Pl.’s Reply at 23–24;
see also Pl.’s Mem. at 4 n.4, 44 n.57. The Court has broad discretion whether to perform an in
camera inspection and may do so if it “believes that in camera inspection is needed in order to
make a responsible de novo determination on the claims of exemption.” Spirko v. USPS, 147
F.3d 992, 996 (D.C. Cir. 1998) (quoting Ray v. Turner, 587 F.2d 1187, 1195 (D.C. Cir. 1978));
41
see also Juarez v. Dep’t of Justice, 518 F.3d 54, 60 (D.C. Cir. 2008). In camera review,
however, “place[s] a substantial burden on judicial resources” and, “when the agency has not
satisfied its Vaughn indexing duties, in camera review also deprives the FOIA requester of an
opportunity to present his interpretation of the withheld documents.” Spirko, 147 F.3d at 997
(internal quotation marks omitted) (quoting Quinon v. FBI, 86 F.3d 1222, 1228 (D.C. Cir.
1996)). “Consequently, [the D.C. Circuit] has repeatedly observed that a district court should not
undertake in camera review of withheld documents as a substitute for requiring an agency’s
explanation of its claimed exemptions in accordance with Vaughn.” Id. (internal citations
omitted); see also PHE, Inc. v. Dep’t of Justice, 983 F.2d 248, 253 (D.C. Cir. 1993) (“[I]n
camera review is generally disfavored. It is not a substitute for the government’s obligation to
justify its withholding in publicly available and debatable documents.” (internal quotation marks
and citations omitted)). For these reasons, and because of the large number of documents at
issue here, see Quinon, 86 F.3d at 1228 (explaining the number of withheld documents is an
important factor to be considered), the plaintiff’s request for in camera review is denied without
prejudice. 13
IV. CONCLUSION
The fundamental problem in this case is the lack of detail provided in the defendants’
Vaughn indices and declarations. Accord Pub. Citizen v. HHS, 975 F. Supp. 2d at 118. Mere
conclusory statements regarding the alleged source and confidentiality of the information
withheld is not sufficient to allow this Court to determine whether the withheld information is
13
The plaintiff, in the alternative, requests discovery. See Pl.’s Mem. at 4 n.4, 44 n.57. The Court similarly
has broad discretion as to whether to allow discovery in FOIA cases, see J. Roderick MacArthur Found. v. FBI, 102
F.3d 600, 605 (D.C. Cir. 1996); SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991), but this
approach is generally appropriate only in cases where the agency has not undertaken an adequate search for
responsive documents, see Flowers v. IRS, 307 F. Supp. 2d 60, 68 (D.D.C. 2004). Accordingly, the plaintiff’s
request for discovery is also denied without prejudice.
42
properly exempt under the FOIA’s Exemption 4. The defendants have failed to meet their
burden, but will be provided another opportunity to demonstrate that withholding the disputed
documents under Exemption 4 is proper.
For the reasons explained above, the plaintiff’s motion for summary judgment is denied
without prejudice. The defendant and defendant-intervenor’s motion for summary judgment is
granted in part and denied in part. The parties’ motions are both denied as moot as to the
Chrysler document described as “Obama Administration New Path to Viability for GM &
Chrysler,” Chrysler Vaughn Index at 71, HHR-DOT2-00004091. Summary judgment is granted
to the defendants as to the following GM documents containing information withheld exclusively
under Exemption 6 of the FOIA: Bates Nos. HHR-DOT2-00131476, see GM Vaughn Index at
Doc. No. 92; HHR-DOT2-00201164, see id. at Doc. No. 114; HHR-DOT2-00174466, see id. at
Doc. No. 188; HHR-DOT2-00034176, see id. at Doc. No. 457; HHR-DOT2-00359037, see id. at
Doc. No. 473; HHR-DOT2-00001106, HHR-DOT2-00008096, HHR-DOT2-00010565, and
HHR-DOT2-00017917, see id. at Doc. Nos. 504-507; HHR-DOT2-00086134, see id. at Doc. No.
516; HHR-DOT2-00106737 and HHR-DOT2-00112544, see id. at Doc. Nos. 528–29; HHR-
DOT2-00359090, see id. at Doc. No. 535; HHR-DOT2-00359489, HHR-DOT2-00359584, and
HHR-DOT2-00359867, see id. at Doc. Nos. 541–43. Summary judgment is likewise granted to
the defendants as to the following Chrysler documents redacted only to withhold cell phone
information: Bates Nos. HHR-DOT2-00044792, see Chrysler Vaughn Index at 13; HHR-DOT2-
00158246, HHR-DOT2-00158247, HHR-DOT2-00158243, HHR-DOT2 00165104, and HHR-
DOT2-00165108, see id. at 20; HHR-DOT2-00341586, HHR-DOT2-00341590, and HHR-
DOT2-00342765, see id. at 27; and HHR-DOT2-00346589, see id. at 31. Summary judgment is
denied without prejudice to the defendants in all other respects.
43
If the defendants elect to continue withholding the remaining documents at issue, in
whole or in part, the parties are directed to meet and confer, and, within twenty days, provide the
Court with (1) a joint status report that sets forth a list of the records that remain in dispute, in
light of this Memorandum Opinion, and that identifies each such disputed record by Bates
number, or other unique identifier, and by citation to the particular page(s) of the already
submitted Vaughn indices where the disputed record is described; and (2) a proposed scheduling
order to govern the timing of further proceedings in this action, including deadlines for the
submission of a revised, combined Vaughn index, any supplementary declarations, and any
further dispositive motions.
The revised, combined Vaughn index shall include all of the disputed documents, both
GM and Chrysler, with numbered entries for all remaining disputed documents. The Vaughn
index shall detail:
(a) for each withheld document that is not contested by the plaintiff because the
information falls into in categories (2) (GM and Chrysler compensation and benefits
information) or (4) (GM dealers and dealer networks), or was withheld, in whole or part, under
Exemption 6, how the defendants’ segregation obligation has been met;
(b) for all other disputed documents (i) the precise source of the information; (ii) how
competitors may affirmatively use the withheld information; (iii) whether withheld information
pertains generally to the old or new companies, or both, or to assets or liabilities, specifying the
type of asset or liability and the placement of such asset or liability with the old or new
companies; and (iv) whether withheld information pertains to practices used by the old
companies and, if so, how those practices still apply to the new companies and whether those
practices have been publicly revealed or discussed.
44
The defendants may not rely on the confidentiality provision in the TARP loan
agreements or the companies’ mere requests for confidentiality as a basis for withholding
information.
An Order consistent with this Memorandum Opinion will be contemporaneously entered.
Date: September 30, 2015
Digitally signed by Hon. Beryl A. Howell
DN: cn=Hon. Beryl A. Howell, o=U.S.
District Court for the District of
Columbia, ou=United States District
Court Judge,
email=howell_chambers@dcd.uscourts.g
ov, c=US
Date: 2015.09.30 20:12:08 -04'00'
__________________________
BERYL A. HOWELL
United States District Judge
45