Case Detail

FOIA Project Annotation: Ruling in a consolidated case brought by the Washington Post and the Center for Public Integrity for records identifying companies that received loans as part of the Paycheck Protection Program, part of the March 2020 Coronavirus Aid, Relief, and Economic Security (CARES) Act, Judge James Boasberg has rejected the claims by the Small Business Administration that most identifying information is protected by Exemption 4 (confidential business information) or Exemption 6 (invasion of privacy). In so ruling, Boasberg provided some continued coloration further fleshing out the confidentiality requirements contained in Food Market Institute v. Argus Leader Media, 139 S. Ct 2356 (2019), as well as the still unclear parameters of when information related to the identity of companies may qualify for protection under Exemption 6. In this case, Boasberg found neither exemption applied. When the government failed to provide much information about the specifics of the payouts, the Post and other media organizations filed FOIA requests. The media organizations, with the Post as their lead plaintiff, filed suit. CPI subsequently filed suit as well. That action prompted the SBA to release some information. However, Boasberg pointed out that "the data contained glaring gaps: the agency did not provide both dollar figures and borrower names and addresses for any of the PPP loans, but rather withheld the precise amounts of all loans of $150,000 or more, as well as recipients' identities for loan figures under that figure." He explained that "SBA adopted an 'either/or' approach: for loans of $150,000 or more, it released the recipient's name and address, but withheld the actual loan amount and instead provided 'loan amount ranges' of $150,000 to $350,000; $350,000 to $1 million; $1 million to $2 million; $2 million to $5 million; and $5 million to $10 million. For loans of less than $150,000, on the other hand, the agency released the precise dollar amounts, but withheld the borrower's name and street address." The agency told the requesters that the withheld data was protected by Exemption 4 and Exemption 6. Reviewing the Exemption 4 claims, Boasberg began by first addressing the impact of Food Marketing Institute, particularly its requirements for finding that business-related records had been submitted to the government in confidence. In Food Marketing Institute, the Supreme rejected the substantial competitive harm test originally established by the D.C. Circuit in National Parks & Conservation Association v. Morton, 498 F.2d 765 (D.C. Cir. 1974), as being contrary to the plain language of Exemption 4. Instead, the Court opted for a customarily confidential standard as the basis for assessing Exemption 4 claims. In determining whether information was provided in confidence, the Court declined to address whether clear promises of confidentiality were required but explained that "where commercial or financial information is both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy, the information is 'confidential' within the meaning of Exemption 4." Boasberg noted that "after Food Marketing, it is an open question in this Circuit whether government assurance that information will remain private is necessary for such information to qualify as 'confidential' under Exemption 4. Regardless of whether such an additional condition is required in every case, it is clear that the government must show that the commercial or financial information is 'both customary and actually treated as private' in order to withhold it." Applying that standard here, he noted that the SBA "still may not withhold the loan data under the [confidentiality] prong, as disclosure would not reveal any information 'that has "customarily" and "actually" been treated as private.' And because SBA flunks this requirement, the Court need not tackle the question left open after Food Marketing �" namely, whether the government must also establish that it provided assurances that the information will remain private." The crux of the SBA's argument was not that the loan data was per se confidential, but that disclosure of more details would allow others to determine the payroll of businesses, which was clearly customarily confidential. Boasberg faulted the SBA's assumption that businesses applying for loans would always ask for the maximum amount allowed, and that data could be used to calculate their payrolls. Instead, he noted that "without knowledge of whether a borrower sought and received the maximum possible loan and pays its employees more than $100,000 annually (and, if so, how many and by how much) third parties are in the dark about payroll." He indicated that "the government 'bears the burden of proving the applicability of any statutory exemption it asserts in denying a FOIA request' and it must furnish 'detailed and specific information' to justify its withholding. SBA has not met that obligation here. As a result, even assuming that a business's payroll qualifies as 'confidential' under Exemption 4, the agency may not withhold borrowers' names, addresses, and loan amounts pursuant to such provision and disclosure would not reveal any commercial information that is 'customarily and actually treated as private.'" The SBA fared no better on the Exemption 6 claim, where the agency focused on caselaw finding that identifying data on small family-owned businesses could be protected. Instead, Boasberg pointed to cases like Alliance for Wild Rockies v. Dept of Interior, 53 F. Supp. 2d 32 (D.D.C. 1999) and Prechtel v. FCC, 330 F. Supp. 3d 320 (D.D.C. 2018), in which the courts concluded that individuals who made public comments in rulemaking procedures had no expectation of privacy. Boasberg pointed out that "the import of these cases for the present one is evident: where SBA explicitly and unambiguously told loan applicants that their names and approval loan amounts would not remain private, such notification substantially 'mitigates' any individual privacy interest in the withheld information." The agency argued that the loan disclosure requirements only applied to another type of loan. However, Boasberg rejected that claim, noting that "the Court finds that the far more 'natural' reading' is also the far simpler one: the application's promise of name and loan amount disclosure means what it says." Boasberg found the public interest in disclosure was clear. He pointed out that "in light of SBA's awesome statutory responsibility to administer the federal government's effort at keeping the nation's small businesses afloat amidst an economic and health crisis of unprecedented proportions, the public interest in learning how well the agency fulfilled its charge is particularly pronounced." He further observed that "even more critical �" and particularly relevant to the substantial public interest at hand �" are the well-documented allegations of fraud related to the disbursement and receipt of CARES Act funds." He added that "without the information withheld under Exemption 6, 'the public would have great difficulty' determining whether SBA has fairly and equitably apportioned a staggering sum of taxpayer money to the smallest of businesses, in a fashion that minimizes the potential for fraud. That reality reflects a powerful public interest in disclosure."
Issues: Exemption 6 - Invasion of privacy, Exemption 4 - Confidential business information

Date Filed	Doc #	Docket Text
2020-05-12	1	COMPLAINT against U.S. SMALL BUSINESS ADMINISTRATION ( Filing fee $ 400 receipt number ADCDC-7116480) filed by WP COMPANY LLC, PRO PUBLICA, INC., DOW JONES & COMPANY, INC., BLOOMBERG L.P., THE NEW YORK TIMES COMPANY. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Summons to U.S. Small Business Administration, # 15 Summons to Dept. of Justice, # 16 Summons to U.S. Attorney, # 17 Civil Cover Sheet)(Tobin, Charles) (Entered: 05/12/2020)
2020-05-12	2	LCvR 26.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by BLOOMBERG L.P., DOW JONES & COMPANY, INC., PRO PUBLICA, INC., THE NEW YORK TIMES COMPANY, WP COMPANY LLC (Tobin, Charles) (Entered: 05/12/2020)
2020-05-13		Case Assigned to Judge Amy Berman Jackson. (adh, ) (Entered: 05/13/2020)
2020-05-13	3	SUMMONS (3) Issued Electronically as to U.S. SMALL BUSINESS ADMINISTRATION, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Notice and Consent)(adh, ) (Entered: 05/13/2020)
2020-05-15	4	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 5/13/2020. Answer due for ALL FEDERAL DEFENDANTS by 6/12/2020. (Tobin, Charles) (Entered: 05/15/2020)
2020-05-29	5	AMENDED COMPLAINT against U.S. SMALL BUSINESS ADMINISTRATION filed by DOW JONES & COMPANY, INC., BLOOMBERG L.P., PRO PUBLICA, INC., WP COMPANY LLC, NEW YORK TIMES COMPANY, AMERICAN BROADCASTING COMPANIES, INC., CABLE NEWS NETWORK, INC., NBCUNIVERSAL MEDIA, LLC, THE CENTER FOR INVESTIGATIVE REPORTING, AMERICAN CITY BUSINESS JOURNALS, THE ASSOCIATED PRESS. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36)(Tobin, Charles) (Entered: 05/29/2020)
2020-05-29	6	LCvR 26.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by AMERICAN BROADCASTING COMPANIES, INC., AMERICAN CITY BUSINESS JOURNALS, BLOOMBERG L.P., CABLE NEWS NETWORK, INC., DOW JONES & COMPANY, INC., NBCUNIVERSAL MEDIA, LLC, NEW YORK TIMES COMPANY, PRO PUBLICA, INC., THE ASSOCIATED PRESS, THE CENTER FOR INVESTIGATIVE REPORTING, WP COMPANY LLC (Tobin, Charles) (Entered: 05/29/2020)
2020-06-01	7	Case randomly reassigned to Judge James E. Boasberg. Judge Amy Berman Jackson is no longer assigned to the case. (rj) (Entered: 06/01/2020)
2020-06-12	8	NOTICE of Appearance by Indraneel Sur on behalf of U.S. SMALL BUSINESS ADMINISTRATION (Sur, Indraneel) (Entered: 06/12/2020)
2020-06-12	9	ANSWER to 5 Amended Complaint,,,, by U.S. SMALL BUSINESS ADMINISTRATION.(Sur, Indraneel) (Entered: 06/12/2020)
2020-06-15		MINUTE ORDER: The Court ORDERS that the parties shall confer and submit a joint proposed briefing schedule by June 29, 2020. So ORDERED by Judge James E. Boasberg on 6/15/2020. (lcjeb2) (Entered: 06/15/2020)
2020-06-15		Set/Reset Deadlines: Joint Proposed Briefing Schedule due by 6/29/2020. (znbn) (Entered: 06/15/2020)
2020-06-29	10	PROPOSED BRIEFING SCHEDULE re Order by AMERICAN BROADCASTING COMPANIES, INC., AMERICAN CITY BUSINESS JOURNALS, ASSOCIATED PRESS, BLOOMBERG L.P., CABLE NEWS NETWORK, INC., CENTER FOR INVESTIGATIVE REPORTING, DOW JONES & COMPANY, INC., NBCUNIVERSAL MEDIA, LLC, NEW YORK TIMES COMPANY, PRO PUBLICA, INC., WP COMPANY LLC. (Attachments: # 1 Exhibit Plaintiffs' Exhibit A, # 2 Exhibit Plaintiffs' Exhibit B)(Tobin, Charles) (Entered: 06/29/2020)
2020-06-29		MINUTE ORDER: The Court ORDERS that: 1) By July 13, 2020, Defendant shall issue a final response to all FOIA requests listed in Defendant's Proposal (ECF 10 at 3) and produce any responsive non-exempt records; and 2) By July 17, 2020, the parties shall submit a further joint status report with a proposed briefing schedule, which shall give Plaintiffs an opportunity to review the documents and determine the scope of their challenges. So ORDERED by Judge James E. Boasberg on 6/29/2020. (lcjeb2) (Entered: 06/29/2020)
2020-06-29		Set/Reset Deadlines: Responses due by 7/13/2020. Status Report due by 7/17/2020. (znbn) (Entered: 07/01/2020)
2020-07-13	11	First MOTION for Extension of Time to Produce Non-Exempt Records Regarding EIDL Loans And Related Grants by U.S. SMALL BUSINESS ADMINISTRATION (Attachments: # 1 Text of Proposed Order)(Sur, Indraneel) (Entered: 07/13/2020)
2020-07-14		MINUTE ORDER: If Plaintiffs oppose Defendant's 11 Motion for Extension, the Court ORDERS that they shall file such opposition by July 15, 2020. So ORDERED by Judge James E. Boasberg on 07/14/2020. (lcjeb2) (Entered: 07/14/2020)
2020-07-14		Set/Reset Deadlines: Opposition due by 7/15/2020. (znbn) (Entered: 07/15/2020)
2020-07-15	12	RESPONSE re 11 First MOTION for Extension of Time to Produce Non-Exempt Records Regarding EIDL Loans And Related Grants filed by AMERICAN BROADCASTING COMPANIES, INC., AMERICAN CITY BUSINESS JOURNALS, ASSOCIATED PRESS, BLOOMBERG L.P., CABLE NEWS NETWORK, INC., CENTER FOR INVESTIGATIVE REPORTING, DOW JONES & COMPANY, INC., NBCUNIVERSAL MEDIA, LLC, NEW YORK TIMES COMPANY, PRO PUBLICA, INC., WP COMPANY LLC. (Tobin, Charles) (Entered: 07/15/2020)
2020-07-16		MINUTE ORDER: The Court ORDERS that Defendant's 11 Motion for Extension is GRANTED IN PART, and Defendant shall make the EIDL production by July 20, 2020. So ORDERED by Judge James E. Boasberg on 07/16/2020. (lcjeb2) (Entered: 07/16/2020)
2020-07-16		Set/Reset Deadlines: Production by 7/20/2020. (znbn) (Entered: 07/16/2020)
2020-07-17	13	Joint STATUS REPORT Pursuant to June 29, 2020 Minute Order by AMERICAN BROADCASTING COMPANIES, INC., AMERICAN CITY BUSINESS JOURNALS, ASSOCIATED PRESS, BLOOMBERG L.P., CABLE NEWS NETWORK, INC., CENTER FOR INVESTIGATIVE REPORTING, DOW JONES & COMPANY, INC., NBCUNIVERSAL MEDIA, LLC, NEW YORK TIMES COMPANY, PRO PUBLICA, INC., WP COMPANY LLC. (Attachments: # 1 Exhibit Plaintiffs' Exhibit 1)(Tobin, Charles) (Entered: 07/17/2020)
2020-07-21		MINUTE ORDER: The Court ADOPTS Defendant's briefing schedule proposed in the parties' 13 Joint Status Report and ORDERS that: (1) Defendant shall file its motion for summary judgment by August 18, 2020; (2) Plaintiffs shall file their cross-motion and opposition by September 8, 2020; (3) Defendant shall file its reply and opposition by September 22, 2020; and (4) Plaintiffs shall file their reply by September 29, 2020. So ORDERED by Judge James E. Boasberg on 07/21/2020. (lcjeb2) (Entered: 07/21/2020)
2020-07-21		Set/Reset Deadlines: Summary Judgment motions due by 8/18/2020. Response to Motion for Summary Judgment due by 9/8/2020. Cross Motions due by 9/8/2020. Reply to Motion for Summary Judgment due by 9/22/2020. Response to Cross Motions due by 9/22/2020. Reply to Cross Motions due by 9/29/2020. (znbn) (Entered: 07/22/2020)
2020-08-18	14	MOTION for Summary Judgment by U.S. SMALL BUSINESS ADMINISTRATION (Attachments: # 1 Declaration William Manger, # 2 Text of Proposed Order)(Sur, Indraneel) (Entered: 08/18/2020)
2020-08-18	15	LARGE ADDITIONAL ATTACHMENT(S) Declarations with Exhibits by U.S. SMALL BUSINESS ADMINISTRATION 14 MOTION for Summary Judgment filed by U.S. SMALL BUSINESS ADMINISTRATION. (Attachments: # 1 Exhibit A-K, # 2 Exhibit MN-PQR)(Sur, Indraneel) (Entered: 08/18/2020)
2020-08-19	16	ERRATA with Exhibit K by U.S. SMALL BUSINESS ADMINISTRATION re 15 Large Additional Attachment(s), (Sur, Indraneel); Modified event and text on 8/21/2020 (ztth). (Entered: 08/19/2020)
2020-09-08	17	Memorandum in opposition to re 14 MOTION for Summary Judgment filed by AMERICAN BROADCASTING COMPANIES, INC., AMERICAN CITY BUSINESS JOURNALS, ASSOCIATED PRESS, BLOOMBERG L.P., CABLE NEWS NETWORK, INC., CENTER FOR INVESTIGATIVE REPORTING, DOW JONES & COMPANY, INC., NBCUNIVERSAL MEDIA, LLC, NEW YORK TIMES COMPANY, PRO PUBLICA, INC., WP COMPANY LLC. (Attachments: # 1 Response to Defendant's Statement of Undisupted Material Facts, # 2 Declaration of Charles D. Tobin, # 3 Exhibit 1 to Tobin Decl., # 4 Exhibit 2 to Tobin Decl., # 5 Exhibit 3 to Tobin Decl., # 6 Exhibit 4 to Tobin Decl., # 7 Exhibit 5 to Tobin Decl., # 8 Exhibit 6 to Tobin Decl., # 9 Exhibit 7 to Tobin Decl., # 10 Exhibit 8 to Tobin Decl., # 11 Exhibit 9 to Tobin Decl., # 12 Exhibit 10 to Tobin Decl., # 13 Exhibit 11 to Tobin Decl., # 14 Exhibit 12 to Tobin Decl., # 15 Exhibit 13 to Tobin Decl., # 16 Exhibit 14 to Tobin Decl., # 17 Exhibit 15 to Tobin Decl., # 18 Exhibit 16 to Tobin Decl., # 19 Exhibit 17 to Tobin Decl., # 20 Exhibit 18 to Tobin Decl., # 21 Exhibit 19 to Tobin Decl., # 22 Exhibit 20 to Tobin Decl., # 23 Exhibit 21 to Tobin Decl., # 24 Exhibit 22 to Tobin Decl., # 25 Exhibit 23 to Tobin Decl., # 26 Exhibit 24 to Tobin Decl., # 27 Exhibit 25 to Tobin Decl., # 28 Exhibit 26 to Tobin Decl., # 29 Exhibit 27 to Tobin Decl., # 30 Exhibit 28 to Tobin Decl., # 31 Exhibit 29 to Tobin Decl., # 32 Exhibit 30 to Tobin Decl., # 33 Text of Proposed Order)(Tobin, Charles) (Entered: 09/08/2020)
2020-09-08	18	Cross MOTION for Summary Judgment by AMERICAN BROADCASTING COMPANIES, INC., AMERICAN CITY BUSINESS JOURNALS, ASSOCIATED PRESS, BLOOMBERG L.P., CABLE NEWS NETWORK, INC., CENTER FOR INVESTIGATIVE REPORTING, DOW JONES & COMPANY, INC., NBCUNIVERSAL MEDIA, LLC, NEW YORK TIMES COMPANY, PRO PUBLICA, INC., WP COMPANY LLC (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Declaration of Charles D. Tobin, # 4 Exhibit 1 to Tobin Decl., # 5 Exhibit 2 to Tobin Decl., # 6 Exhibit 3 to Tobin Decl., # 7 Exhibit 4 to Tobin Decl., # 8 Exhibit 5 to Tobin Decl., # 9 Exhibit 6 to Tobin Decl., # 10 Exhibit 7 to Tobin Decl., # 11 Exhibit 8 to Tobin Decl., # 12 Exhibit 9 to Tobin Decl., # 13 Exhibit 10 to Tobin Decl., # 14 Exhibit 11 to Tobin Decl., # 15 Exhibit 12 to Tobin Decl., # 16 Exhibit 13 to Tobin Decl., # 17 Exhibit 14 to Tobin Decl., # 18 Exhibit 15 to Tobin Decl., # 19 Exhibit 16 to Tobin Decl., # 20 Exhibit 17 to Tobin Decl., # 21 Exhibit 18 to Tobin Decl., # 22 Exhibit 19 to Tobin Decl., # 23 Exhibit 20 to Tobin Decl., # 24 Exhibit 21 to Tobin Decl., # 25 Exhibit 22 to Tobin Decl., # 26 Exhibit 23 to Tobin Decl., # 27 Exhibit 24 to Tobin Decl., # 28 Exhibit 25 to Tobin Decl., # 29 Exhibit 26 to Tobin Decl., # 30 Exhibit 27 to Tobin Decl., # 31 Exhibit 28 to Tobin Decl., # 32 Exhibit 29 to Tobin Decl., # 33 Exhibit 30 to Tobin Decl., # 34 Text of Proposed Order)(Tobin, Charles) (Entered: 09/08/2020)
2020-09-22	19	REPLY to opposition to motion re 14 MOTION for Summary Judgment filed by U.S. SMALL BUSINESS ADMINISTRATION. (Sur, Indraneel) (Entered: 09/22/2020)
2020-09-22	20	Memorandum in opposition to re 18 Cross MOTION for Summary Judgment filed by U.S. SMALL BUSINESS ADMINISTRATION. (Attachments: # 1 Statement of Facts Def Resp to Pls SOMF, # 2 Declaration 2d Declaration of William Manger, # 3 Text of Proposed Order)(Sur, Indraneel) (Entered: 09/22/2020)
2020-09-29	21	REPLY to opposition to motion re 18 Cross MOTION for Summary Judgment filed by AMERICAN BROADCASTING COMPANIES, INC., AMERICAN CITY BUSINESS JOURNALS, ASSOCIATED PRESS, BLOOMBERG L.P., CABLE NEWS NETWORK, INC., CENTER FOR INVESTIGATIVE REPORTING, DOW JONES & COMPANY, INC., NBCUNIVERSAL MEDIA, LLC, NEW YORK TIMES COMPANY, PRO PUBLICA, INC., WP COMPANY LLC. (Tobin, Charles) (Entered: 09/29/2020)
2020-10-08		MINUTE ORDER: Given that this case and No. 20-1614 present the identical factual and legal issues, the Court ORDERS that any party that opposes consolidation of the cases shall file such opposition by October 13, 2020. So ORDERED by Judge James E. Boasberg on 10/8/2020. (lcjeb1) (Entered: 10/08/2020)
2020-10-08		Set/Reset Deadlines: Opposition due by 10/13/2020. (nbn) (Entered: 10/09/2020)
2020-11-05	22	ORDER: The Court ORDERS that: 1) Plaintiffs' 18 Cross-Motion for Summary Judgment is GRANTED; 2) Defendant's 14 Motion for Summary Judgment is DENIED; 3) Defendant shall release the names, addresses, and precise loan amounts of all individuals and entities that obtained COVID-related loans pursuant to the Paycheck Protection Program and Economic Injury Disaster Loans program by November 19, 2020; and 4) Judgment is ENTERED in favor of Plaintiffs. Signed by Judge James E. Boasberg on 11/5/2020. (lcjeb1) (Entered: 11/05/2020)
2020-11-05	23	MEMORANDUM OPINION re 22 Order on Cross-Motions for Summary Judgment. Signed by Judge James E. Boasberg on 11/5/2020. (lcjeb1) (Entered: 11/05/2020)
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