Case Detail

FOIA Project Annotation: Judge James Boasberg has ruled that the Department of the Army has not yet shown that copyrighted material is protected under Exemption 4 (commercial and confidential) in responding to a FOIA request from Sarah Naumes, a Ph.D. student in the Department of Politics at York University in Toronto, Canada. Naumes requested all versions of the Global Assessment Tool (GAT) questionnaire dating from 2008 to the present, including questionnaires designed for soldiers, spouses, and Army civilians. She also requested the informed consent forms utilized with different versions of GAT, and a list of recommendations given under the ArmyFit portal. The GAT is an online survey on the ArmyFit portal combining objective health and fitness metrics with survey-based questions that provide the user with a variety of scores and metrics for personalized self-development training in a variety of formats. In response to Naumes' queries as to why the processing of her request was taking so long, the Army admitted that its FOIA officer position had been vacant for a period of time. Ten months later, the officer handling her case told her he thought the Army had already responded to her request. After having waited two and a half years without any response, Naumes filed suit. The agency responded to the first two portions of her request, disclosing 773 GAT survey questions but withholding 534 others under Exemption 4. All informed-consent forms were produced since they were included with the surveys themselves. A list of recommendations was disclosed, containing five pages of screenshots. Naumes complained about the excessive amount of time the Army took in responding to her request. Although he expressed sympathy for her plight, Boasberg noted that "the only penalty warranted here is to prohibit the Army from relying on administrative exhaustion, which it does not do anyway." Naumes faulted the agency's search because it did not find a survey on basic training that she believed existed. However, Boasberg agreed that the agency had consulted with a subject matter expert who confirmed that there was no separate basic training survey. Approving of the agency's search, Boasberg noted that "despite the confusion about the different categories of the GAT, Defendant has described a good-faith effort to identity this document. Having determined that a fourth category of the GAT for Basic Training did not exist, it was 'under no duty to disclose documents not in its possession,' which would include any associated informed-consent forms." Naumes argued that the agency should have provided her with links included in the screenshots of the recommendations. While the agency claimed this would require it to create a record, Boasberg indicated that "since those files can be accessed and provided to Plaintiff without the creation of new records, the Court will order that Defendant produce the webpages identified at the relevant links in the screenshots already produced to Plaintiff. The Army need not, however, create a list of all recommendations given to anyone who has taken the GAT." Addressing the Army's Exemption 4 claim, Boasberg explained that "the crux of this case is whether Exemption 4 protects the withholding of 534 GAT survey questions that come from copyrighted sources. The Army does not hold the copyright to these sources; rather, the copyright is held by the publishers or other creators of the sources." He pointed out that "for the questions to remain redacted, they must satisfy each prong of the exemption, which the Army claims the questions do because they are copyrighted." Assessing the copyright holder's interest, he indicated that "the copyright holder thus naturally has a commercial interest in the information that he seeks to protect," concluding that "the materials satisfy the first prong inasmuch as routine release of copyrighted information through FOIA requests would undermine the market for the creator's work in much the same way that the release of other types of commercial information could inflict competitive harm." But to be protected under Exemption 4, information must be obtained from a third party and is not protected if the information has been incorporated by the agency as part of its own analysis. Indicating that the Army had not sufficiently distinguished the case here, Boasberg noted that "the court will thus require that the Army provide supplemental briefing as to how, if at all, the questions were adapted from the copyrighted sources." He agreed with Naumes that many of the questions were based on materials readily available online. He pointed out that "the Army must thus release the withheld questions from any sources available publicly at no charge." As to the other copyright holders, Boasberg explained that "it is the better path to request the Army to confer with the copyright holders for the remaining non-public source materials about whether they in fact treat those materials as confidential." Boasberg rejected Naumes' argument that the agency must show that people who took the GAT were themselves bound by confidentiality agreements. Instead, he indicated that "although some tests are registered as 'secure tests' to shield copyright materials, it is not required that a test have been registered for the underlying material involved to receive copyright protection." Boasberg also found the Army had shown disclosure could cause foreseeable harm, noting that "defendant has sufficiently laid out the basis of its foreseeable harm from disclosing copyright information." He rejected Naumes' claim that as a student she was covered by the fair-use doctrine. Instead, he explained that "the applicability of the fair-use doctrine specifically to Plaintiff's dissertation research thus cannot outweigh Defendant's determination of foreseeable harm when the material is to be released to the public overall."
Issues: Exemption 4 - Confidential business information

FOIA Project Annotation: Judge James Boasberg has ruled that the Department of the Army properly withheld three sets of questions from a survey the Army administers to assess the well-being of its employees and soldiers because the academic researcher who developed the three questions claimed they were confidential under Exemption 4 (commercial and confidential). Sarah Naumes, a Ph.D. candidate at York University in Toronto, conducts academic research exploring the military perception of vulnerability and trauma. In pursuit of her research, Naumes requested records from the Army seeking all versions of the Global Assessment Took (GAT) questionnaire dating from 2008 to the present, an online survey used by the Army to gain insight into solider resiliency. The GAT questions come from various scales (a set of questions), at least some of which are developed by civilian scientists or scholars, and some of which are protected by copyright. After hearing nothing further for two years, Naumes filed suit. As a result, the Army released two sets of documents to Naumes. The Army released only 773 of the GAT questions and withheld 534 of them â€" those that came from copyrights sources â€" under Exemption 4. While Boasberg agreed with the agency that the copyrighted questions satisfied the commercial or financial requirement in Exemption 4, he could not conclude that the Army had satisfied the confidential and privileged prong of the exemption. He told the Army to provide more information on whether the specific copyright holders treated their questions as confidential. The Army provided Boasberg with that information. By the time he ruled, only one researcher, Dr. Nansook Park, continued to insist that her questions were confidential. Naumes argued that since all the other copyright holders had agreed to disclose their questions to Naumes, Park's insistence on maintaining the confidentiality of her questions should be considered suspect. However, Boasberg noted that "such a position assumes without explanation that consenting to the release of copyrighted material is equivalent to relinquishing any commercial interest in that material. But a copyright holder might well consent to lowering barriers to access her information even while retaining a strong commercial interest in protecting that work from publication or distribution. Beyond that, though, even were Naumes correct that some copyright holders had minimal commercial interest in their information, that would not necessarily mean that Park specifically lacked such an interest." Boasberg noted that under the Argua Media test, information from a submitter was confidential if the owner did not customarily release the information to the public. He pointed out that "the answer is plainly no." He added that "apparently, Park has yet to disclose her scales to any entity or individual other than the Army. Her declaration thus provides sufficient evidence that she does not 'customarily' release them to the general public. That is all it takes to satisfy Exemption 4's confidentiality requirement in this Circuit."
Issues: Exemption 4 - Confidential business information

Date Filed	Doc #	Docket Text
2021-06-22	1	COMPLAINT against DEPARTMENT OF THE ARMY ( Filing fee $ 402 receipt number ADCDC-8546401) filed by SARAH KATHERINE NAUMES. (Attachments: # 1 Civil Cover Sheet, # 2 Summons Army, # 3 Summons USAG, # 4 Summons USAO, # 5 Exhibit A, # 6 Exhibit B, # 7 Exhibit C, # 8 Exhibit D, # 9 Exhibit E, # 10 Exhibit F, # 11 Exhibit G, # 12 Exhibit H, # 13 Exhibit I, # 14 Exhibit J, # 15 Exhibit K, # 16 Exhibit L, # 17 Exhibit M, # 18 Exhibit N)(Sorenson, C.) (Attachment 1 replaced on 6/23/2021) (adh, ). (Entered: 06/22/2021)
2021-06-22		Case Assigned to Judge James E. Boasberg. (zsb) (Entered: 06/22/2021)
2021-06-23	2	SUMMONS (3) Issued Electronically as to DEPARTMENT OF THE ARMY, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice and Consent)(adh, ) (Entered: 06/23/2021)
2021-07-21	3	NOTICE of Appearance by Jessica B. Colsia on behalf of DEPARTMENT OF THE ARMY (Colsia, Jessica) (Entered: 07/21/2021)
2021-07-26	4	ANSWER to Complaint by DEPARTMENT OF THE ARMY.(Colsia, Jessica) (Entered: 07/26/2021)
2021-07-26	5	Joint STATUS REPORT by DEPARTMENT OF THE ARMY. (Colsia, Jessica) (Entered: 07/26/2021)
2021-07-26		MINUTE ORDER: The Court ADOPTS the parties' 5 Joint Status Report and ORDERS that they shall file a further joint status report by September 17, 2021. So ORDERED by Judge James E. Boasberg on 07/26/2021. (lcjeb1) (Entered: 07/26/2021)
2021-07-26		Set/Reset Deadlines: Joint Status Report due by 9/17/2021. (nbn) (Entered: 07/27/2021)
2021-09-07	6	Joint STATUS REPORT by DEPARTMENT OF THE ARMY. (Attachments: # 1 Text of Proposed Order)(Colsia, Jessica) (Entered: 09/07/2021)
2021-09-07		MINUTE ORDER: The Court ADOPTS the parties' 6 Joint Status Report and ORDERS that: 1) Defendant shall file its Motion for Summary Judgment by October 26, 2021; 2) Plaintiff shall file her Cross-Motion for Summary Judgment and Opposition by November 23, 2021; 3) Defendant shall file its Opposition and Reply by December 21, 2021; and 4) Plaintiff shall file her Reply by January 14, 2022. So ORDERED by Judge James E. Boasberg on 9/7/2021. (lcjeb3) (Entered: 09/07/2021)
2021-09-07		Set/Reset Deadlines: Summary Judgment motions due by 10/26/2021. Response to Motion for Summary Judgment due by 11/23/2021. Cross Motions due by 11/23/2021. Reply to Motion for Summary Judgment due by 12/21/2021. Response to Cross Motions due by 12/21/2021. Reply to Cross Motions due by 1/14/2022. (nbn) (Entered: 09/08/2021)
2021-10-26	7	MOTION for Summary Judgment by DEPARTMENT OF THE ARMY. (Attachments: # 1 Statement of Facts, # 2 Memorandum in Support, # 3 Exhibit 3 - Declaration, # 4 Exhibit 4 - Vaughn Index, # 5 Text of Proposed Order)(Colsia, Jessica) (Entered: 10/26/2021)
2021-11-19	8	CERTIFICATE OF SERVICE by SARAH KATHERINE NAUMES . (Sorenson, C.) (Entered: 11/19/2021)
2021-11-19	11	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 6/28/2021. ( Answer due for ALL FEDERAL DEFENDANTS by 7/28/2021.), RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 7/1/2021., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. DEPARTMENT OF THE ARMY served on 6/28/2021. (See Docket Entry 8 to view document) (ztth) (Entered: 11/24/2021)
2021-11-23	9	RESPONSE re 7 MOTION for Summary Judgment filed by SARAH KATHERINE NAUMES. (Attachments: # 1 Declaration Sarah Naumes, # 2 Exhibit 101, # 3 Exhibit 102, # 4 Exhibit 103, # 5 Exhibit 104, # 6 Exhibit 105, # 7 Exhibit 106, # 8 Exhibit 107, # 9 Exhibit 108, # 10 Exhibit 109, # 11 Exhibit 110, # 12 Exhibit 111, # 13 Exhibit 112, # 14 Exhibit 113, # 15 Exhibit 114, # 16 Exhibit 115, # 17 Exhibit 116, # 18 Exhibit 117, # 19 Statement of Facts, # 20 Memorandum in Support, # 21 Text of Proposed Order)(Sorenson, C.) (Entered: 11/23/2021)
2021-11-23	10	Cross MOTION for Summary Judgment by SARAH KATHERINE NAUMES. (Attachments: # 1 Declaration Sarah Naumes, # 2 Exhibit 101, # 3 Exhibit 102, # 4 Exhibit 103, # 5 Exhibit 104, # 6 Exhibit 105, # 7 Exhibit 106, # 8 Exhibit 107, # 9 Exhibit 108, # 10 Exhibit 109, # 11 Exhibit 110, # 12 Exhibit 111, # 13 Exhibit 112, # 14 Exhibit 113, # 15 Exhibit 114, # 16 Exhibit 115, # 17 Exhibit 116, # 18 Exhibit 117, # 19 Statement of Facts, # 20 Memorandum in Support, # 21 Text of Proposed Order)(Sorenson, C.) (Entered: 11/23/2021)
2021-12-21	12	REPLY to opposition to motion re 7 MOTION for Summary Judgment filed by DEPARTMENT OF THE ARMY. (Attachments: # 1 Declaration)(Colsia, Jessica) (Entered: 12/21/2021)
2021-12-21	13	Memorandum in opposition to re 10 Cross MOTION for Summary Judgment filed by DEPARTMENT OF THE ARMY. (Attachments: # 1 Declaration)(Colsia, Jessica) (Entered: 12/21/2021)
2022-01-14	14	REPLY to opposition to motion re 10 Cross MOTION for Summary Judgment filed by SARAH KATHERINE NAUMES. (Sorenson, C.) (Entered: 01/14/2022)
2022-02-28	15	ORDER: For the reasons set forth in the accompanying Memorandum Opinion, the Court ORDERS that: 1) Defendant's Motion for Summary Judgment and Plaintiff's Cross-Motion for Summary Judgment are GRANTED IN PART and DENIED IN PART; 2) Defendant shall search for and release the pages offering Spiritual, Family Fitness, Social Fitness, and Physical Fitness Dimension Recommendations by March 14, 2022; 3) Defendant shall release the GAT survey questions that derive from sources available to the general public by March 14, 2022; 4) Defendant shall contact the copyright holders for the survey questions in the remaining non-public sources and inform the Court as to their position on release by March 14, 2022; and 5) Defendant shall provide supplemental briefing as to how the GAT survey questions are assembled from the underlying sources by March 14, 2022. Signed by Judge James E. Boasberg on 2/28/2022. (lcjeb2) (Entered: 02/28/2022)
2022-02-28	16	MEMORANDUM OPINION re. Order 15 on Cross-Motions for Summary Judgment. Signed by Judge James E. Boasberg on 2/28/2022. (lcjeb2) (Entered: 02/28/2022)
2022-02-28		Set/Reset Deadlines: Defendant shall search for and release the pages offering Spiritual, Family Fitness, Social Fitness, and Physical Fitness Dimension Recommendations by March 14, 2022; Defendant shall release the GAT survey questions that derive from sources available to the general public by March 14, 2022; Defendant shall contact the copyright holders for the survey questions in the remaining non-public sources and inform the Court as to their position on release by March 14, 2022; and Defendant shall provide supplemental briefing as to how the GAT survey questions are assembled from the underlying sources by March 14, 2022. (nbn) (Entered: 03/01/2022)
2022-03-14	17	NOTICE of Appearance by John Haberland on behalf of DEPARTMENT OF THE ARMY (Haberland, John) (Entered: 03/14/2022)
2022-03-14	18	SUPPLEMENTAL MEMORANDUM to re 15 Order on Motion for Summary Judgment,,,,,,, filed by DEPARTMENT OF THE ARMY. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit, # 3 Exhibit, # 4 Appendix)(Haberland, John) (Entered: 03/14/2022)
2022-03-14	19	WITHDRAWN PURSUANT TO NOTICE FILED ON 3/18/2022.....MOTION to Stay Production of Recommendations by DEPARTMENT OF THE ARMY. (Attachments: # 1 Text of Proposed Order)(Haberland, John); Modified on 3/18/2022 (ztth). (Entered: 03/14/2022)
2022-03-18	20	WITHDRAWAL of Motion by DEPARTMENT OF THE ARMY re 19 MOTION to Stay Production of Recommendations filed by DEPARTMENT OF THE ARMY . (Haberland, John) (Entered: 03/18/2022)
2022-03-18	21	SUPPLEMENTAL MEMORANDUM to 15 Order on Motion for Summary Judgment, filed by DEPARTMENT OF THE ARMY. See Docket Entry 20 to view document. (ztth) (Entered: 03/18/2022)
2022-03-21		MINUTE ORDER: In light of Defendant's 18 Supplemental Memorandum, the Court ORDERS that Plaintiff shall respond by April 4, 2022. The Court further ORDERS that Defendant shall file a status report regarding further responses from copyright holders by April 20, 2022. So ORDERED by Judge James E. Boasberg on 3/21/2022. (lcjeb2) (Entered: 03/21/2022)
2022-03-21		Set/Reset Deadlines: Responses due by 4/4/2022. Status Report due by 4/20/2022. (znbn) (Entered: 03/21/2022)
2022-04-04	22	RESPONSE re 19 MOTION to Stay Production of Recommendations filed by SARAH KATHERINE NAUMES. (Attachments: # 1 Declaration Second Decl Naumes)(Sorenson, C.) (Entered: 04/04/2022)
2022-04-11		MINUTE ORDER: Having reviewed the parties' 18 and 22 supplemental submissions, the Court ORDERS that Defendant shall submit a further status report regarding its ongoing contact with the copyright holders by May 11, 2022. In the interim, Defendant shall provide to Plaintiff any questions derived from sources where the copyright holder has already consented to release per the Appendix attached to the [18-2] Declaration of Major Carrie Donoho. So ORDERED by Judge James E. Boasberg on 4/11/2022. (lcjeb2) (Entered: 04/11/2022)
2022-04-11		Set/Reset Deadlines: Status Report due by 5/11/2022. (nbn) (Entered: 04/12/2022)
2022-05-10	23	STATUS REPORT by DEPARTMENT OF THE ARMY. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit, # 3 Exhibit)(Haberland, John) (Entered: 05/10/2022)
2022-05-10		MINUTE ORDER: The Court ADOPTS Defendant's 23 Status Report and ORDERS that it shall file a further joint status report by June 10, 2022. So ORDERED by Judge James E. Boasberg on 5/10/2022. (lcjeb2) (Entered: 05/10/2022)
2022-05-10		Set/Reset Deadlines: Joint Status Report due by 6/10/2022. (nbn) (Entered: 05/11/2022)
2022-06-09	24	Joint STATUS REPORT by DEPARTMENT OF THE ARMY. (Attachments: # 1 Text of Proposed Order)(Haberland, John) (Entered: 06/09/2022)
2022-06-10		MINUTE ORDER: The Court ADOPTS the parties' Joint 24 Status Report and proposed briefing schedule. The Court ORDERS that: 1) Defendant will file its Motion to Dismiss by August 5, 2022; 2) Plaintiff will file her Opposition to Defendant's Motion by September 7, 2022; 3) Defendant will file its Reply by September 23, 2022; and 4) The parties will file a Joint Status Report by November 1, 2022. So ORDERED by Judge James E. Boasberg on 6/10/2022. (lcjeb2) (Entered: 06/10/2022)
2022-06-10		Set/Reset Deadlines: Dispositive Motions due by 8/5/2022. Response to Dispositive Motions due by 9/7/2022. Reply to Dispositive Motions due by 9/23/2022. Joint Status Report due by 11/1/2022 (lsj) (Entered: 06/10/2022)
2022-08-05	25	Second MOTION for Summary Judgment by DEPARTMENT OF THE ARMY. (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Text of Proposed Order, # 4 Exhibit)(Haberland, John) (Entered: 08/05/2022)
2022-08-23	26	Unopposed MOTION for Extension of Time to file Plaintiff's Opposition and Defendant's Reply by SARAH KATHERINE NAUMES. (Attachments: # 1 Text of Proposed Order)(Sorenson, C.) (Entered: 08/23/2022)
2022-08-24		MINUTE ORDER GRANTING Consent 26 Motion for Extension of Time. The Court ORDERS that: 1) Plaintiff shall file its Opposition to Defendant's Motion for Summary Judgment by October 11, 2022; and 2) Defendant shall file its Reply to Plaintiff's Opposition by November 1, 2022. So ORDERED by Judge James E. Boasberg on 8/24/2022. (lcjeb2) (Entered: 08/24/2022)
2022-08-24		Set/Reset Deadlines: Response to Motion for Summary Judgment due by 10/11/2022. Reply to Motion for Summary Judgment due by 11/1/2022. (nbn) (Entered: 08/24/2022)
2022-09-28	27	Joint MOTION for Extension of Time to file JSR by DEPARTMENT OF THE ARMY. (Attachments: # 1 Text of Proposed Order)(Haberland, John) (Entered: 09/28/2022)
2022-09-28		MINUTE ORDER: The Court ORDERS that: 1) The Joint 27 Motion for Extension of Time is GRANTED; and 2) The Court ORDERS that the parties shall file a joint status report by January 4, 2023. So ORDERED by Judge James E. Boasberg on 9/28/2022. (lcjeb2) (Entered: 09/28/2022)
2022-09-28		Set/Reset Deadlines: Joint Status Report due by 1/4/2023. (nbn) (Entered: 09/29/2022)
2022-10-11	28	Memorandum in opposition to re 25 Motion for Summary Judgment filed by SARAH KATHERINE NAUMES. (Attachments: # 1 Text of Proposed Order, # 2 Statement of Facts, # 3 Declaration of Dr. MacLeish, # 4 Declaration of Dr. Martin, # 5 Declaration of Dr. Kieran, # 6 Declaration of Ms. Naumes, # 7 Exhibit 301, # 8 Exhibit 302, # 9 Exhibit 303, # 10 Exhibit 304, # 11 Exhibit 305)(Sorenson, C.) (Entered: 10/11/2022)
2022-10-24	29	Consent MOTION for Extension of Time to File Response/Reply as to 25 Second MOTION for Summary Judgment by DEPARTMENT OF THE ARMY. (Attachments: # 1 Text of Proposed Order)(Haberland, John) (Entered: 10/24/2022)
2022-10-24		MINUTE ORDER: The Court ORDERS that: 1) The Consent 29 Motion for Extension of Time is GRANTED; 2) Defendant shall file its reply in support of its motion for summary judgment by November 23, 2022; and 3) The parties shall file a joint status report by February 3, 2023. So ORDERED by Judge James E. Boasberg on 10/24/2022. (lcjeb2) (Entered: 10/24/2022)
2022-10-24		Set/Reset Deadlines: Response to Motion for Summary Judgment due by 11/23/2022. Reply to Motion for Summary Judgment due by 2/3/2023. (nbn) (Entered: 10/25/2022)
2022-11-22	30	REPLY to opposition to motion re 25 Motion for Summary Judgment filed by DEPARTMENT OF THE ARMY. (Haberland, John) Modified docket relationship on 11/22/2022 (zed). (Entered: 11/22/2022)
2022-12-07		MINUTE ORDER: The Court ORDERS that the parties shall appear for a hearing via zoom on Defendant's Second Motion for Summary Judgment on December 14, 2022, at 2:00 p.m. The parties shall be prepared to address issues regarding Fair Use as well as the ramifications of Plaintiff's obtaining the full and unredacted GAT, as discussed in her Opposition at page 22. So ORDERED by Judge James E. Boasberg on 12/7/2022. (lcjeb1) (Entered: 12/07/2022)
2022-12-07		Set/Reset Hearings: Motion Hearing set for 12/14/2022 at 02:00 PM in Telephonic/VTC before Judge James E. Boasberg. (nbn) (Entered: 12/07/2022)
2022-12-14		Minute Entry for proceedings held before Judge James E. Boasberg: Motion Hearing held via Zoom on 12/14/2022 re 25 Second MOTION for Summary Judgment filed by DEPARTMENT OF THE ARMY. Oral arguments heard. (Court Reporter Lisa Griffith) (nbn) (Entered: 12/14/2022)
2022-12-19	31	ORDER: For the reasons set forth in the accompanying Memorandum Opinion, the Court ORDERS that: 1) Defendant's Renewed Motion for Summary Judgment is GRANTED; and 2) Judgment is ENTERED in favor of Defendant. Signed by Judge James E. Boasberg on 12/19/2022. (lcjeb1) (Entered: 12/19/2022)
2022-12-19	32	MEMORANDUM OPINION re. 31 Order on Renewed Motion for Summary Judgment. Signed by Judge James E. Boasberg on 12/19/2022. (lcjeb1) (Entered: 12/19/2022)
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