Case Detail
| Case Title | Nelson v. United States Army | ||||||||||||||||||||||||||||||||||||||||||
| District | Northern District of Illinois | ||||||||||||||||||||||||||||||||||||||||||
| City | Chicago | ||||||||||||||||||||||||||||||||||||||||||
| Case Number | 1:2010cv01735 | ||||||||||||||||||||||||||||||||||||||||||
| Date Filed | 2010-03-18 | ||||||||||||||||||||||||||||||||||||||||||
| Date Closed | 2011-02-22 | ||||||||||||||||||||||||||||||||||||||||||
| Judge | Honorable Rebecca R. Pallmeyer | ||||||||||||||||||||||||||||||||||||||||||
| Plaintiff | Neal Nelson | ||||||||||||||||||||||||||||||||||||||||||
| Defendant | United States Army | ||||||||||||||||||||||||||||||||||||||||||
| Documents | Docket Complaint Opinion/Order [34] FOIA Project Annotation: A federal court in Illinois has ruled that the Army properly denied a request for information about companies that submitted their products to the Technology Integration Center for evaluation to ensure their products are compatible with the existing Army computer network infrastructure solely because Neal Nelson refused to pay the costs of pre-disclosure notification to submitters. Because the Army considered that the information might fall under Exemption 4 (confidential business information), it decided to send pre-disclosure notification notices to about 30 companies. To accomplish this process, the agency told Nelson he would be required to pay $600. He refused and the agency denied his request. More than a year later, Nelson requested the same information again for the intervening period of time. This time the Army estimated the cost of pre-disclosure notification at $599. Nelson again refused and filed suit. The agency readily admitted that the pr-disclosure notification requirements were contained in Executive Order 12,600, not FOIA itself, although they had long since been incorporated into the agency's FOIA regulations. The only case law the government relied upon was OSHA Data/CIH, Inc. v. Dept of Labor, 220 F.3d 153 (3d Cir. 2000), in which the Third Circuit agreed that the government was not required to bear the cost of notifying thousands of companies at an estimated $1.7 million in pre-disclosure notification costs. Nelson argued that OSHA Data was not applicable because it dealt with information provided by companies, whereas here the information came from the agency itself. The court rejected the claim, noting that "still, the information Plaintiff now seeks was, in fact, provided to the Army by outside commercial vendors and the mere fact that such records may potentially be disclosed to the public under FOIA does not mean the records are already 'public' as Plaintiff suggests." Nelson also argued that the records were unlikely to be exempt under Exemption 4. But the court noted that "under the rationale of OSHA Data, to justify requiring pre-disclosure notification, Defendant needs only to show that disclosing the information could cause the commercial vendors substantial competitive harm." The court also agreed that the agency had calculated the required fees correctly. The court added that "the court is skeptical of Plaintiff's claim that he seeks the information for non-commercial use. To the contrary, Plaintiff has his own private computer testing facility and his request appears to be motivated by the fact that potential customers are seeking out testing from TIC rather than from his laboratory."
Issues: Exemption 4 - Predisclosure notification, Fees - Commitment to pay | ||||||||||||||||||||||||||||||||||||||||||
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