Case Detail
| Case Title | The Center for Investigative Reporting (CIR) v. Department of Labor | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| District | Northern District of California | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| City | Oakland | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Case Number | 4:2018cv02414 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Date Filed | 2018-04-23 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Date Closed | 2019-03-04 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Judge | Magistrate Judge Donna M. Ryu | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Plaintiff | The Center for Investigative Reporting | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Plaintiff | Jennifer Gollan | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Case Description | Jennifer Gollan, a staff reporter for "Reveal," produced by the Center for Investigative Reporting, submitted a FOIA request to the Occupational Safety and Health Administration for data submitted under the Injury Tracking Application pursuant to the agency's final rule to improve such reporting. CIR also requested expedited processing and a fee waiver. The agency acknowledged receipt of the request. The agency told Gollan that it had located 237,000 records responsive to her request but was withholding them under Exemption 7(E) (investigative methods and techniques). CIR filed an administrative appeal. The agency acknowledged receipt of the appeal, but after hearing nothing further from the agency, CIR filed suit. Complaint issues: Failure to respond within statutory time limit, Litigation - Attorney's fees | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Defendant | Department of Labor | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Documents | Docket Complaint Complaint attachment 1 Complaint attachment 2 Complaint attachment 3 Complaint attachment 4 Complaint attachment 5 Complaint attachment 6 Opinion/Order [19] Opinion/Order [41] FOIA Project Annotation: When the Supreme Court agreed to hear Food Marketing Institute v. Argus Leader Media, specifically challenging whether the substantial competitive harm test first developed in 1974 by the D.C. Circuit in National Parks & Conservation Association v. Morton, 498 F.2d 765 (D.C. Cir. 1974) was supported by the plain language of Exemption 4 (confidential business information), many FOIA observers assumed that if the Supreme Court threw out the substantial harm test it would be considerably easier for business submitters to persuade agencies to withhold such information because it was customarily treated as confidential. However, while the Supreme Court's decision last year in Food Marketing Institute v. Argus Media Leader, 139 S. Ct. 2356 (2019), concluded that the substantial competitive harm test was not supported by the plain language of Exemption 4, the decision failed to resolve a host of other unanswered issues about what constituted commercial information and what elements were required to establish confidentiality. Two recent decisions from the Northern District of California illustrate some of the hurdles that agencies still face in convincing courts that records are both commercial and confidential for purposes of Exemption 4. While both cases focus on the confidentiality of records, they also deal with aspects of what constitutes commercial information. The first case involved FOIA requests from Jennifer Gollan, a reporter for the Center for Investigative Reporting, to the Occupational Health and Safety Administration for records contained on OSHA Forms 300, 300A, and 301 pertaining to the reporting of workplace injuries and illnesses. OSHA's search yielded 237,000 potentially responsive records. OSHA initially decided to withhold all the records on the basis of Exemption 7(E) (investigative methods or techniques), but after Gollan filed an administrative appeal of that denial claim, the agency invoked Exemption 4 instead. The agency claimed that the information was confidential because in the 2014 rulemaking process, employers and trade groups contended that they considered such information to constitute confidential commercial information. But Magistrate Judge Donna Ryu pointed out that "as Food Marketing makes clear, the court must examine whether the information actually is kept and treated as confidential, not whether the submitter considers it to be so. Food Marketing involved store-level Supplemental Nutrition Assistance Program (SNAP) data. The court concluded that the information was confidential within the meaning of Exemption 4 because the owners of the SNAP data customarily kept and treated the information as confidential." Ryu noted that "in contrast, here, the rulemaking comments relied upon by [the Department of Labor] reflect the owners' subjective view of the nature of the information, which is not the test for confidentiality under Food Marketing. The comments do not speak to how the owners keep and treat the Form 300A information; instead, they focus on the reasons why the owners oppose the release of the information. Therefore, the comments are minimally probative." Further, the Form 300As were required to be posted where employees could see them. This, Ryu observed, meant that "there are no restrictions on further dissemination of Form 300A information. . .Therefore, the Form 300A information is both readily observable by and shared with employees, who have the right to make the information public." While OSHA argued that it had changed its policy on posting, meaning the data was not readily available, Ryu pointed out that guidance on how to apply the Food Marketing standards posted by the Office of Information Policy in October 2019 indicated that "information loses its character of confidentiality where there is an express agency notification that submitted information will be publicly disclosed." Ryu explained that "even if DOL had established that the Form 300A information is 'customarily treated as private by its owners,' the information ceased to be confidential upon submission to the government pursuant to Department of Justice guidelines." The other case involved continuing litigation by the American Small Business League for records pertaining to plans submitted by defense contractors to hire small business subcontractors as part of Defense Department contracts. ASBL had asked District Court Judge William Alsup to review three compliance reviews submitted by Sikorsky in camera to determine if Exemption 4 claims made by Sikorsky and the agency were appropriate. Alsup indicated that "plenty of information within the compliance reports does appear to be bare company information. . .The government appropriately redacted this information." He observed that "Sikorsky's fiscal year 2013 review appropriately redacts several pages plainly reciting Sikorsky's internal procedures for accomplishing its small business subcontracting goals, though disclosing the resulting government evaluations. It also appropriately redacts tables listing specific subcontracts and subcontracting in various categories year-over-year." However, throughout the ASBL litigation, Alsup had distinguished between the confidentiality of information submitted by defense contractors pertaining to their small business subcontracting plans and the government's subsequent analysis of that information. In this instance, Alsup pointed out that "recall that evaluations â€" e.g., a finding 'that an SB goal was not met because the company failed to meet the SB goal by a certain percentage' â€" remains the government's." Alsup provided an example of a paragraph which Sikorsky had heavily redacted. Explaining why the redactions were inappropriate, Alsup pointed out that "though the conclusions of the government's own evaluations have been disclosed, it appears that the government's analysis remains redacted. This cannot be." He added that "the quantitative values, the amount of money flowing through Sikorsky to small businesses (whether given in absolute dollars or percentages of total revenue) remains company information. But the qualitative assessments of hard data remain the government's evaluation of Sikorsky. So, the current redactions unnecessarily shield valuable qualitative government assessments. The November order's recognition that the government need not painstakingly redact word by word did not invite lackadaisical over-redaction. . .The company's numbers and the government's analysis remain segregable with reasonable effort." Alsup also rejected DOD's claim that because a joint-defense agreement existed with Sikorsky as of 2015, discussions of the joint defense were protected under Exemption 5 (privileges). Instead, he indicated that the joint-defense agreement did not exist until 2017. He noted that "the two must have reached an agreement to jointly appeal. And, once again, the government points to no offer to jointly appeal and no acceptance of the offer. Without both, no agreement can exist."
Issues: Exemption 4 - Confidential business information | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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