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Case TitleCENTER FOR PUBLIC INTEGRITY v. U.S. SMALL BUSINESS ADMINISTRATION
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2020cv01614
Date Filed2020-06-19
Date ClosedOpen
JudgeJudge James E. Boasberg
PlaintiffCENTER FOR PUBLIC INTEGRITY
Case DescriptionThe Center for Public Integrity submitted a FOIA request to U.S. Small Business Administration for records concerning recipients of the Paycheck Protection Program. CPI also requested expedited processing. The agency acknowledged receipt of the request. The agency denied CPI's request for expedited processing. The agency also told CPI that it would disclose records. However, after hearing nothing further from the agency, CPI filed suit.
Complaint issues: Failure to respond within statutory time limit, Litigation - Attorney's fees

DefendantU.S. SMALL BUSINESS ADMINISTRATION
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Complaint attachment 5
Complaint attachment 6
Complaint attachment 7
Opinion/Order [21]
Opinion/Order [27]
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
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2020-06-191COMPLAINT against All Defendants ( Filing fee $ 400 receipt number ADCDC-7247498) filed by CENTER FOR PUBLIC INTEGRITY. (Attachments: # 1 Exhibit 1 - FOIA Request, # 2 Exhibit 2 - Response SBA-2020-000848, # 3 Exhibit 3 - Response SBA-2020-000849, # 4 Civil Cover Sheet, # 5 Summons SBA, # 6 Summons U.S. Attorney, # 7 Summons Attorney General)(Smith, Peter) (Entered: 06/19/2020)
2020-06-192LCvR 26.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by CENTER FOR PUBLIC INTEGRITY (Smith, Peter) (Entered: 06/19/2020)
2020-06-193NOTICE OF RELATED CASE by CENTER FOR PUBLIC INTEGRITY. Case related to Case No. 20-1240. (Smith, Peter) (Entered: 06/19/2020)
2020-06-194ERRATA to correct signatures by CENTER FOR PUBLIC INTEGRITY 1 Complaint, filed by CENTER FOR PUBLIC INTEGRITY. (Attachments: # 1 Errata Complaint, # 2 Errata Certificate LCvR 7.1, # 3 Errata Notice of Related Case)(Smith, Peter) (Entered: 06/19/2020)
2020-06-23Case assigned to Judge James E. Boasberg. (zmc) (Entered: 06/23/2020)
2020-06-245SUMMONS (3) Issued Electronically as to U.S. SMALL BUSINESS ADMINISTRATION, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Notice and Consent)(zmc) (Entered: 06/24/2020)
2020-06-256RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 6/24/2020. Answer due for ALL FEDERAL DEFENDANTS by 7/24/2020. (Smith, Peter) (Entered: 06/25/2020)
2020-06-307RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. SMALL BUSINESS ADMINISTRATION served on 6/29/2020, RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 6/29/2020. (Attachments: # 1 Exhibit Postal Return Receipt - SBA, # 2 Exhibit Postal Return Receipt - Atty Gen)(Smith, Peter) (Entered: 06/30/2020)
2020-07-248NOTICE of Appearance by James O. Bickford on behalf of U.S. SMALL BUSINESS ADMINISTRATION (Bickford, James) (Entered: 07/24/2020)
2020-07-249ANSWER to Complaint by U.S. SMALL BUSINESS ADMINISTRATION.(Bickford, James) (Entered: 07/24/2020)
2020-07-24MINUTE ORDER: The parties shall confer and submit a proposed briefing schedule by August 10, 2020. So ORDERED by Judge James E. Boasberg on 7/24/2020. (lcjeb1) (Entered: 07/24/2020)
2020-07-24Set/Reset Deadlines: Proposed Briefing Schedule due by 8/10/2020. (znbn) (Entered: 07/27/2020)
2020-08-1010Joint STATUS REPORT by U.S. SMALL BUSINESS ADMINISTRATION. (Bickford, James) (Entered: 08/10/2020)
2020-08-11MINUTE ORDER: The Court ADOPTS the parties' 10 Joint Status Report and ORDERS that: 1) Defendant shall file its motion for summary judgment by August 18, 2020; 2) Plaintiff shall file its cross-motion for summary judgment and opposition to Defendant's motion by September 8, 2020; 3) Defendant shall file its reply in support of its motion and opposition to Plaintiff's cross-motion by September 22, 2020; 4) Plaintiff shall file its reply in support of its cross-motion by September 29, 2020; and 5) the parties shall file a further joint status report by September 11, 2020. So ORDERED by Judge James E. Boasberg on 8/11/2020. (lcjeb1) (Entered: 08/11/2020)
2020-08-11Set/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. Joint Status Report due by 9/11/2020. 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: 08/11/2020)
2020-08-1811MOTION for Partial Summary Judgment by U.S. SMALL BUSINESS ADMINISTRATION (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Text of Proposed Order)(Bickford, James) (Entered: 08/18/2020)
2020-08-1812Vaughn Index from William Manger. (Attachments: # 1 Exhibit L, # 2 Exhibit O, # 3 Exhibit Q, # 4 Exhibit R)(Bickford, James) (Entered: 08/18/2020)
2020-09-0813MOTION for Partial Summary Judgment by CENTER FOR PUBLIC INTEGRITY (Attachments: # 1 Statement of Facts, # 2 Text of Proposed Order)(Smith, Peter) (Entered: 09/08/2020)
2020-09-0814Memorandum in opposition to re 11 MOTION for Partial Summary Judgment filed by CENTER FOR PUBLIC INTEGRITY. (Smith, Peter) (Entered: 09/08/2020)
2020-09-1115Joint STATUS REPORT by U.S. SMALL BUSINESS ADMINISTRATION. (Bickford, James) (Entered: 09/11/2020)
2020-09-14MINUTE ORDER: The Court ADOPTS the parties' 15 Joint Status Report and ORDERS that they shall file a further joint status report by October 12, 2020. So ORDERED by Judge James E. Boasberg on 9/14/2020. (lcjeb1) (Entered: 09/14/2020)
2020-09-14Set/Reset Deadlines: Joint Status Report due by 10/12/2020. (znbn) (Entered: 09/14/2020)
2020-09-2216Memorandum in opposition to re 13 MOTION for Partial Summary Judgment filed by U.S. SMALL BUSINESS ADMINISTRATION. (Attachments: # 1 Second Declaration of William Manger)(Bickford, James) (Entered: 09/22/2020)
2020-09-2217REPLY to opposition to motion re 11 MOTION for Partial Summary Judgment filed by U.S. SMALL BUSINESS ADMINISTRATION. (Attachments: # 1 Second Declaration of William Manger)(Bickford, James) (Entered: 09/22/2020)
2020-09-2918REPLY to opposition to motion re 13 MOTION for Partial Summary Judgment filed by CENTER FOR PUBLIC INTEGRITY. (Smith, Peter) (Entered: 09/29/2020)
2020-10-08MINUTE ORDER: Given that this case and No. 20-1240 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)
2020-10-08Set/Reset Deadlines: Opposition due by 10/13/2020. (znbn) (Entered: 10/09/2020)
2020-10-1319Joint STATUS REPORT by U.S. SMALL BUSINESS ADMINISTRATION. (Bickford, James) (Entered: 10/13/2020)
2020-10-13MINUTE ORDER: The Court ADOPTS the parties' 19 Joint Status Report and ORDERS that they shall file a further joint status report by November 13, 2020. So ORDERED by Judge James E. Boasberg on 10/13/2020. (lcjeb1) (Entered: 10/13/2020)
2020-10-13Set/Reset Deadlines: Joint Status Report due by 11/13/2020. (znbn) (Entered: 10/14/2020)
2020-11-0520ORDER: The Court ORDERS that: 1) Plaintiff's 13 Cross-Motion for Partial Summary Judgment is GRANTED; 2) Defendant's 11 Motion for Partial Summary Judgment is DENIED; and 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. Signed by Judge James E. Boasberg on 11/5/2020. (lcjeb1) (Entered: 11/05/2020)
2020-11-0521MEMORANDUM OPINION re 20 Order on Cross-Motions for Partial Summary Judgment. Signed by Judge James E. Boasberg on 11/5/2020. (lcjeb1) (Entered: 11/05/2020)
2020-11-1222MOTION to Stay re 20 Order on Motion for Partial Summary Judgment,,, by U.S. SMALL BUSINESS ADMINISTRATION (Attachments: # 1 Text of Proposed Order)(Sur, Indraneel) (Entered: 11/12/2020)
2020-11-13MINUTE ORDER: The Court ORDERS that Defendant's 22 Motion to Stay is GRANTED IN PART. The Court grants a temporary stay of its Order requiring Defendant to release the requested information regarding COVID-related loans issued pursuant to the PPP and EIDL program, which stay shall remain in effect until the Court rules on the merits of the Motion to Stay. Plaintiff shall respond to the merits of the Motion to Stay by November 27, 2020. So ORDERED by Judge James E. Boasberg on 11/13/2020. (lcjeb1) (Entered: 11/13/2020)
2020-11-13Set/Reset Deadlines: Responses due by 11/27/2020. (znbn) (Entered: 11/13/2020)
2020-11-1323Joint STATUS REPORT by U.S. SMALL BUSINESS ADMINISTRATION. (Bickford, James) (Entered: 11/13/2020)
2020-11-16MINUTE ORDER: The Court ADOPTS the parties' 23 Joint Status Report and ORDERS that they shall file a further joint status report by December 14, 2020. So ORDERED by Judge James E. Boasberg on 11/16/2020. (lcjeb3) (Entered: 11/16/2020)
2020-11-16Set/Reset Deadlines: Joint Status Report due by 12/14/2020. (znbn) (Entered: 11/16/2020)
2020-11-1924REPLY to opposition to motion re 22 MOTION to Stay re 20 Order on Motion for Partial Summary Judgment,,, filed by U.S. SMALL BUSINESS ADMINISTRATION. (Sur, Indraneel) (Entered: 11/19/2020)
2020-11-1925Memorandum in opposition to re 22 MOTION to Stay re 20 Order on Motion for Partial Summary Judgment,,, filed by CENTER FOR PUBLIC INTEGRITY. (Smith, Peter) (Entered: 11/19/2020)
2020-11-2426ORDER: The Court ORDERS that: 1) The temporary stay is LIFTED; 2) Defendant's 22 Motion to Stay is DENIED; and 3) Defendant shall release the names, addresses, and precise loan amounts for all individuals and entities that obtained COVID-related loans pursuant to the Paycheck Protection Program and Economic Injury Disaster Loans program by December 1, 2020. Signed by Judge James E. Boasberg on 11/24/2020. (lcjeb1) (Entered: 11/24/2020)
2020-11-2427MEMORANDUM OPINION re 26 Order on Motion to Stay. Signed by Judge James E. Boasberg on 11/24/2020. (lcjeb1) (Entered: 11/24/2020)
2020-12-1428Joint STATUS REPORT by U.S. SMALL BUSINESS ADMINISTRATION. (Bickford, James) (Entered: 12/14/2020)
2020-12-15MINUTE ORDER: The Court ADOPTS the parties' 28 Joint Status Report and ORDERS that they shall file a further joint status report by February 5, 2021. So ORDERED by Judge James E. Boasberg on 12/15/2020. (lcjeb1) (Entered: 12/15/2020)
2020-12-15Set/Reset Deadlines: Joint Status Report due by 2/5/2021. (nbn) (Entered: 12/15/2020)
2021-02-0529Joint STATUS REPORT by U.S. SMALL BUSINESS ADMINISTRATION. (Bickford, James) (Entered: 02/05/2021)
2021-02-05MINUTE ORDER: The Court ADOPTS the parties' 29 Joint Status Report and ORDERS that they shall file a further joint status report by March 5, 2021. So ORDERED by Judge James E. Boasberg on 2/5/2021. (lcjeb1) (Entered: 02/05/2021)
2021-02-05Set/Reset Deadlines: Joint Status Report due by 3/5/2021. (nbn) (Entered: 02/08/2021)
2021-03-0530Joint STATUS REPORT by U.S. SMALL BUSINESS ADMINISTRATION. (Bickford, James) (Entered: 03/05/2021)
2021-03-08MINUTE ORDER: The Court ADOPTS the parties' 30 Joint Status Report and ORDERS that they shall file a further joint status report by April 6, 2021. So ORDERED by Judge James E. Boasberg on 3/8/2021. (lcjeb1) (Entered: 03/08/2021)
2021-03-08Set/Reset Deadlines: Joint Status Report due by 4/6/2021. (znbn) (Entered: 03/08/2021)
2021-04-0631Joint STATUS REPORT by U.S. SMALL BUSINESS ADMINISTRATION. (Bickford, James) (Entered: 04/06/2021)
2021-04-07MINUTE ORDER: The Court ADOPTS the parties' 31 Joint Status Report and ORDERS that they shall file a further joint status report by May 5, 2021. So ORDERED by Judge James E. Boasberg on 4/7/2021. (lcjeb1) (Entered: 04/07/2021)
2021-04-07Set/Reset Deadlines: Joint Status Report due by 5/5/2021. (nbn) (Entered: 04/09/2021)
2021-05-0532Joint STATUS REPORT by U.S. SMALL BUSINESS ADMINISTRATION. (Bickford, James) (Entered: 05/05/2021)
2021-05-06MINUTE ORDER: The Court ADOPTS the parties' 32 Joint Status Report and ORDERS that they shall file a further joint status report by June 7, 2021. So ORDERED by Judge James E. Boasberg on 5/6/2021. (lcjeb1) (Entered: 05/06/2021)
2021-05-06Set/Reset Deadlines: Joint Status Report due by 6/7/2021. (nbn) (Entered: 05/10/2021)
2021-06-0733Joint STATUS REPORT by U.S. SMALL BUSINESS ADMINISTRATION. (Bickford, James) (Entered: 06/07/2021)
2021-06-08MINUTE ORDER: The Court ADOPTS the parties' 33 Joint Status Report and ORDERS that they shall file a further joint status report by July 9, 2021. So ORDERED by Judge James E. Boasberg on 6/8/2021. (lcjeb1) (Entered: 06/08/2021)
2021-06-08Set/Reset Deadlines: Joint Status Report due by 7/9/2021 (lsj) (Entered: 06/08/2021)
2021-07-0934Joint STATUS REPORT by U.S. SMALL BUSINESS ADMINISTRATION. (Bickford, James) (Entered: 07/09/2021)
2021-07-12MINUTE ORDER: The Court ADOPTS the parties' 34 Joint Status Report and ORDERS that they shall file a further joint status report by August 10, 2021. So ORDERED by Judge James E. Boasberg on 7/12/2021. (lcjeb1) (Entered: 07/12/2021)
2021-07-12Set/Reset Deadlines: Joint Status Report due by 8/10/2021. (nbn) (Entered: 07/14/2021)
2021-08-1035Joint STATUS REPORT by U.S. SMALL BUSINESS ADMINISTRATION. (Bickford, James) (Entered: 08/10/2021)
2021-08-10MINUTE ORDER: The Court ADOPTS the parties' 35 Joint Status Report and ORDERS that they shall file a further joint status report by September 10, 2021. So ORDERED by Judge James E. Boasberg on 8/10/2021. (lcjeb2) (Entered: 08/10/2021)
2021-08-11Set/Reset Deadlines: Status Report due by 9/10/2021 (lsj) (Entered: 08/11/2021)
2021-09-1036Joint STATUS REPORT by U.S. SMALL BUSINESS ADMINISTRATION. (Bickford, James) (Entered: 09/10/2021)
2021-09-13MINUTE ORDER: The Court ADOPTS the parties' 36 Joint Status Report and ORDERS that they shall file a further joint status report by October 8, 2021. So ORDERED by Judge James E. Boasberg on 9/13/2021. (lcjeb1) (Entered: 09/13/2021)
2021-09-13Set/Reset Deadlines: Joint Status Report due by 10/8/2021. (znbn) (Entered: 09/13/2021)
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