Case Detail

FOIA Project Annotation: Judge Carl Nichols has ruled that the Department of Commerce has failed to justify its invocation of Exemption 5 (privileges) in response to a request from CREW for records concerning communications between former White House advisor to the Commerce Department Eric Branstad and former Trump campaign official Rick Gates mentioning the defense firm Circinus, but that the agency appropriately withheld records under Exemption 4 (confidential business information). The agency disclosed 165 pages of responsive records, withholding others under Exemption 4, Exemption 5, and Exemption 6 (invasion of privacy). CREW did not challenge the Exemption 6 redactions. The agency withheld two records under the deliberative process privilege. But CREW argued that the privilege was waived when the agency shared the records with Gates, who was a non-governmental third party. The agency claimed Gates did not review the email but just forwarded it as requested. Nichols found that irrelevant. He pointed out that "when analyzing waiver, the focus is not whether the recipient reviewed the disclosed information; instead, it is whether a disclosure occurred in the first place." Commerce also argued the email was protected by the attorney-client privilege because Gates was a necessary conduit to delivering the email. Again, Nichols disagreed, noting that "even assuming that Gates was a necessary third party, the government has failed to demonstrate that it attempted to protect the information after its disclosure. An agency must take steps to protect privileged material that is commensurate with the breadth of the privilege it seeks to claim." Turning to the Exemption 4 claim, Nichols noted that under the recent Supreme Court decision in Food Marketing Institute v. Argus Leader Media, 139 S. Ct. 2356 (2019), information was protected under Exemption 4 if it was commercial and the business submitted the information to the agency with a reasonable expectation of confidentiality. CREW acknowledged that the records were commercial but argued that the agency had not provided an assurance of confidentiality. Nichols found the agency had sufficiently shown that it provided an implicit assurance of confidentiality. He pointed out that "the context in which Circinus provided Commerce information â€" to grow its business in foreign markets â€" supports the notion that it did so under an implied assurance of confidentiality. Without such an assurance, companies liked Circinus would not seek Commerce's assistance because the information they provided could be revealed by simply submitting a FOIA request." However, Nichols agreed with CREW that since the name of the foreign government mentioned had been publicly disclosed, the agency was required to disclose that information.
Issues: Exemption 5 - Inter- or intra-agency record, Exemption 5 - Privileges - Attorney-client privilege, Exemption 4 - Confidential business information

Date Filed	Doc #	Docket Text
2018-12-20	1	COMPLAINT against U.S. DEPARTMENT OF COMMERCE ( Filing fee $ 400 receipt number 0090-5851553) filed by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (Attachments: # 1 Civil Cover Sheet, # 2 Summons U.S. Department of Commerce, # 3 Summons Attorney General, # 4 Summons U.S. Attorney)(Sus, Nikhel) (Entered: 12/20/2018)
2018-12-20	2	LCvR 26.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON (Sus, Nikhel) (Entered: 12/20/2018)
2018-12-21		Case Assigned to Judge James E. Boasberg. (zsb) (Entered: 12/21/2018)
2018-12-21	3	SUMMONS (3) Issued Electronically as to U.S. DEPARTMENT OF COMMERCE, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Notice and Consent)(zsb) (Entered: 12/21/2018)
2019-01-31	4	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. DEPARTMENT OF COMMERCE served on 1/29/2019, RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 1/28/19., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 1/7/2019. ( Answer due for ALL FEDERAL DEFENDANTS by 2/6/2019.) (Sus, Nikhel) (Entered: 01/31/2019)
2019-02-06	5	NOTICE of Appearance by Marina Utgoff Braswell on behalf of U.S. DEPARTMENT OF COMMERCE (Braswell, Marina) (Entered: 02/06/2019)
2019-02-06	6	Unopposed MOTION for Extension of Time to File Answer re 1 Complaint, by U.S. DEPARTMENT OF COMMERCE (Braswell, Marina) (Entered: 02/06/2019)
2019-02-06		MINUTE ORDER: The Court ORDERS that Defendant's Unopposed 6 Motion for Extension of Time to File is GRANTED and that it shall file its Answer or other response to the Complaint by February 27, 2019. So ORDERED by Judge James E. Boasberg on 2/6/2019. (lcjeb3) (Entered: 02/06/2019)
2019-02-06		Set/Reset Deadlines: Answer due by 2/27/2019 (lsj) (Entered: 02/06/2019)
2019-02-27	7	ANSWER to Complaint by U.S. DEPARTMENT OF COMMERCE.(Braswell, Marina) (Entered: 02/27/2019)
2019-02-28		MINUTE ORDER: The Court ORDERS that the parties shall confer and submit a joint proposed briefing schedule by March 14, 2019. So ORDERED by Judge James E. Boasberg on 2/28/2019. (lcjeb3) (Entered: 02/28/2019)
2019-02-28		Set/Reset Deadlines: Joint Proposed Briefing Schedule due by 3/14/2019. (znbn) (Entered: 02/28/2019)
2019-03-14	8	Joint STATUS REPORT by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (Sus, Nikhel) (Entered: 03/14/2019)
2019-03-14		MINUTE ORDER: The Court ADOPTS the parties' 8 Joint Status Report and ORDERS that they shall file another Joint Status Report on or before April 10, 2019. Signed by Judge James E. Boasberg on 3/14/2019. (lcjeb3) (Entered: 03/14/2019)
2019-03-14		Set/Reset Deadlines: Joint Status Report due by 4/10/2019. (znbn) (Entered: 03/15/2019)
2019-04-10	9	Joint STATUS REPORT by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (Sus, Nikhel) (Entered: 04/10/2019)
2019-04-11		STAYED PURSUANT TO THE MINUTE ORDER FILED ON 5/20/19.....MINUTE ORDER: The Court ADOPTS the parties' 9 Joint Status Report and ORDERS that the following schedule shall govern future proceedings: 1) Defendant shall file its motion for summary judgment by May 23, 2019; 2) Plaintiff shall file its opposition and cross-motion for summary judgment by June 27, 2019; 3) Defendant shall file its reply and opposition to the cross-motion by August 1, 2019; and 4) Plaintiff shall file its reply in support of its cross-motion by August 22, 2019. So ORDERED by Judge James E. Boasberg on 4/11/2019. (lcjeb3) Modified on 5/22/2019 (znbn). (Entered: 04/11/2019)
2019-04-11		Set/Reset Deadlines: Summary Judgment motions due by 5/23/2019. Response to Motion for Summary Judgment due by 6/27/2019. Cross Motions due by 6/27/2019. Reply to Motion for Summary Judgment due by 8/1/2019. Response to Cross Motions due by 8/1/2019. Reply to Cross Motions due by 8/22/2019. (znbn) (Entered: 04/12/2019)
2019-05-20	10	Unopposed MOTION to Stay re Order,, by U.S. DEPARTMENT OF COMMERCE (Braswell, Marina) (Entered: 05/20/2019)
2019-05-20		MINUTE ORDER: The Court ORDERS that: 1) Defendant's Unopposed 10 Motion to Stay Briefing Schedule is GRANTED; 2) the Briefing schedule entered on April 11, 2019, is STAYED; and 3) the parties shall file a joint status report on or before June 17, 2019. So ORDERED by Judge James E. Boasberg on 5/20/2019. (lcjeb3) (Entered: 05/20/2019)
2019-05-20		Set/Reset Deadlines: Joint Status Report due by 6/17/2019 (lsj) (Entered: 05/20/2019)
2019-06-17	11	Joint STATUS REPORT by U.S. DEPARTMENT OF COMMERCE. (Braswell, Marina) (Entered: 06/17/2019)
2019-06-18		MINUTE ORDER: The Court ADOPTS the parties' 11 Joint Status Report and ORDERS that the following schedule shall govern subsequent proceedings: 1) Defendant shall file its Motion for Summary Judgment on or before July 25, 2019; 2) Plaintiff shall file its Opposition and Cross-Motion for Summary Judgment on or before August 28, 2019; 3) Defendant shall file its Reply in support of its Motion and its Opposition to Plaintiff's Cross-Motion on or before September 27, 2019; and 4) Plaintiff shall file its Reply in support of its Cross-Motion on or before October 18, 2019. So ORDERED by Judge James E. Boasberg on 6/18/2019. (lcjeb3) (Entered: 06/18/2019)
2019-06-18		Set/Reset Deadlines: Summary Judgment motions due by 7/25/2019. Response to Motion for Summary Judgment due by 8/28/2019. Cross Motions due by 8/28/2019. Reply to Motion for Summary Judgment due by 9/27/2019. Response to Cross Motions due by 9/27/2019. Reply to Cross Motions due by 10/18/2019. (znbn) (Entered: 06/19/2019)
2019-06-24		Case directly reassigned to Judge Carl J. Nichols. Judge James E. Boasberg is no longer assigned to the case. (rj) (Entered: 06/24/2019)
2019-07-25	12	Unopposed MOTION to Amend/Correct Order,, by U.S. DEPARTMENT OF COMMERCE (Braswell, Marina) (Entered: 07/25/2019)
2019-07-26	13	Unopposed MOTION to Amend/Correct Order,, Further by U.S. DEPARTMENT OF COMMERCE (Braswell, Marina) (Entered: 07/26/2019)
2019-07-31		MINUTE ORDER. Upon consideration of Defendant's 13 Unopposed Motion to Further Amend Briefing Schedule, it is hereby ORDERED that the deadlines (1) for Defendant's Summary Judgment Motion is extended to July 31, 2019; (2) for Plaintiff's Opposition and Cross-Motion is extended to September 4, 2019; (3) for Defendant's Opposition and Reply is extended to October 3, 2019; and (4) for Plaintiff's Reply is extended to October 24, 2019. Signed by Judge Carl J. Nichols on July 31, 2019. (lccjn1) (Entered: 07/31/2019)
2019-07-31	14	MOTION for Summary Judgment by U.S. DEPARTMENT OF COMMERCE (Attachments: # 1 Lieberman Declaration, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8)(Braswell, Marina) (Entered: 07/31/2019)
2019-08-01		Set/Reset Deadlines: Defendant's Summary Judgment Motion due by 7/31/2019. Plaintiff Opposition And Cross-Motion due by 9/4/2019. Defendant Opposition And Reply due by 10/03/2019. Plaintiff Reply due by 10/24/2019. (mac) (Entered: 08/01/2019)
2019-09-04	15	Cross MOTION for Summary Judgment by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Statement of Facts, # 5 Text of Proposed Order)(Sus, Nikhel) (Entered: 09/04/2019)
2019-09-04	16	Memorandum in opposition to re 14 MOTION for Summary Judgment filed by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (Sus, Nikhel) (Entered: 09/04/2019)
2019-10-03	17	Memorandum in opposition to re 15 Cross MOTION for Summary Judgment filed by U.S. DEPARTMENT OF COMMERCE. (Attachments: # 1 Exhibit 1, # 2 Supplemental Lieberman Declaration, # 3 Branstad declaration)(Braswell, Marina) (Entered: 10/03/2019)
2019-10-03	18	REPLY to opposition to motion re 14 MOTION for Summary Judgment filed by U.S. DEPARTMENT OF COMMERCE. (Attachments: # 1 Exhibit 1, # 2 Supplemental Lieberman declaration, # 3 Branstad Declaration)(Braswell, Marina) (Entered: 10/03/2019)
2019-10-23	19	REPLY to opposition to motion re 15 Cross MOTION for Summary Judgment , 14 MOTION for Summary Judgment filed by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (Sus, Nikhel) (Entered: 10/23/2019)
2020-03-02		MINUTE ORDER. After review of Defendant's 14 Motion for Summary Judgment and Plaintiff's 15 Cross-Motion for Summary Judgment, it is hereby ORDERED that a hearing on the Motions is scheduled for March 17, 2020, at 10 AM in Courtroom 19. Signed by Judge Carl J. Nichols on March 2, 2020. (lccjn1) (Entered: 03/02/2020)
2020-03-02		Set/Reset Deadlines/Hearings: Motion Hearing re 14 and 15 set for 3/17/2020 at 10:00 AM in Courtroom 19 before Judge Carl J. Nichols. (zcdw) (Entered: 03/12/2020)
2020-03-16		MINUTE ORDER. It is hereby ORDERED that the hearing scheduled for tomorrow, March 17, 2020, at 10 AM is postponed until further notice from the Court. Signed by Judge Carl J. Nichols on March 16, 2020. (lccjn1) (Entered: 03/16/2020)
2020-05-28	20	NOTICE OF SUBSTITUTION OF COUNSEL by Michael A. Tilghman on behalf of U.S. DEPARTMENT OF COMMERCE Substituting for attorney Marina Utgoff Braswell (Tilghman, Michael) (Entered: 05/28/2020)
2020-08-14	21	MEMORANDUM OPINION. Signed by Judge Carl J. Nichols on August 14, 2020. (lccjn1) (Entered: 08/14/2020)
2020-08-14	22	ORDER. Signed by Judge Carl J. Nichols on August 14, 2020. (lccjn1) (Entered: 08/14/2020)
2020-10-13	23	NOTICE OF APPEAL TO DC CIRCUIT COURT as to 21 Memorandum & Opinion, 22 Order on Motion for Summary Judgment, by U.S. DEPARTMENT OF COMMERCE. Fee Status: No Fee Paid. Parties have been notified. (Tilghman, Michael) (Entered: 10/13/2020)
2020-10-14	24	Transmission of the Notice of Appeal, Order Appealed (Memorandum Opinion), and Docket Sheet to US Court of Appeals. The Court of Appeals docketing fee was not paid because the appeal was filed by the government re 23 Notice of Appeal to DC Circuit Court. (eg) (Entered: 10/14/2020)
2020-10-16		USCA Case Number 20-5307 for 23 Notice of Appeal to DC Circuit Court filed by U.S. DEPARTMENT OF COMMERCE. (zrdj) (Entered: 10/19/2020)
2021-02-08	25	MANDATE of USCA as to 23 Notice of Appeal to DC Circuit Court filed by U.S. DEPARTMENT OF COMMERCE ; USCA Case Number 20-5307. (Attachments: # 1 Order)(zeg) (Entered: 02/08/2021)
2021-02-16		MINUTE ORDER. In light of the D.C. Circuits Order granting Defendant's Consent Motion to Voluntarily Dismiss Appeal, it is hereby ORDERED that the Parties shall file a joint status report informing the Court of how the Parties intend to proceed in this matter by March 5, 2021. Signed by Judge Carl J. Nichols on February 16, 2021. (lccjn1) (Entered: 02/16/2021)
2021-02-16		Set/Reset Deadlines: Joint Status Report due by 3/5/2021. (zcal) (Entered: 02/17/2021)
2021-03-05	26	Joint STATUS REPORT by U.S. DEPARTMENT OF COMMERCE. (Tilghman, Michael) (Entered: 03/05/2021)
2021-03-30	27	STIPULATION of Dismissal by U.S. DEPARTMENT OF COMMERCE. (Tilghman, Michael) (Entered: 03/30/2021)
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