Case Detail

FOIA Project Annotation: Judge Royce Lamberth has ruled that OMB properly invoked Exemption 4 (confidential business information) and Exemption 5 (deliberative process privilege) to withhold portions of records pertaining to the role of the agency's Intellectual Property Enforcement Coordinator in negotiations with representatives of the movie and music industries that resulted in voluntary adoption of a graduated response system to promote legitimate use of copyrighted information and to deter infringing activity. In response to a request by Christopher Soghoian, the agency disclosed 189 pages with redactions and withheld 16 pages entirely. Soghoian filed suit, challenging the agency's Exemption 4 and 5 claims. OMB withheld drafts of a Memorandum of Understanding between the movie and music industry and several leading internet providers, claiming they had been submitted voluntarily. Soghoian argued their submission was not voluntary but constituted a quid pro quo to encourage the government to take further steps to combat copyright infringement. Finding the information was commercial, Lamberth indicated that the agency's Vaughn index explanations "denote [the movie and music industries'] commercial interest in the withheld portions of the documents, as they reflect an allocation of costs surely to impact the commercial status and dealings of the trade associations' members." Lamberth next found the drafts were voluntarily submitted, noting that "unlike other cases where awarding government contracts were necessarily based on submissions, the MoU signatories were not doing business with the government but with each other. As such, their submissions to the government were voluntary for Exemption 4 purposes." Soghoian argued the gist of the MoU had been made public in press accounts. But Lamberth pointed out that "the final MoU released publicly on July 6, 2011 is 20 pages long and contains an additional 16 pages in attachments and signature pages. In contrast, the article allegedly representing that [music industry] members leaked the MoU drafts to the press is under three pages. A review of the article shows that it provides a cursory overview of the detail described in the final MoU and in no way indicates that the author obtained any of the draft copies at issue in this case." Turning to the Exemption 5 claims, Soghoian argued that since IPEC's role was quite limited its ability to claim privilege for documents was likewise limited. Lamberth explained that it made no difference how limited IPEC's role might be as long as the claimed documents were part of the deliberative process. "Although plaintiff points out that private companies contracted to form this voluntary initiative, the Administration's role in negotiations, and the importance of the issue, will certainly result in policy decisions made by the Executive branchâ€"even if they are decisions to wait and see how the system works before implementing regulations of the industry." While Soghoian contended that the agency was required to point to a decision to which the documents contributed, Lamberth indicated that the deliberative process privilege "protects from disclosure those documents that are integral to formulating agency policy, even if the decision regarding that policy has not yet been officially adopted." Finding that records discussing the draft MoU were protected, Lamberth noted that "protecting documents pertaining to the deliberative process here serves the underlying policy objectives of avoiding disclosure of proposed policies prior to their adoption and reducing the possibility of misleading the public by disclosing documents that suggest certain reasons for a future decision that do not ultimately bear upon that decision."
Issues: Exemption 4 - Confidential business information, Exemption 5 - Privileges - Deliberative process privilege - Deliberative

Date Filed	Doc #	Docket Text
2011-12-12	1	COMPLAINT against OFFICE OF MANAGEMENT AND BUDGET ( Filing fee $ 350, receipt number 4616044462) filed by CHRISTOPHER SOGHOIAN. (Attachments: # 1 Civil Cover Sheet)(jf, ) (Entered: 12/13/2011)
2011-12-12		SUMMONS (3) Issued as to OFFICE OF MANAGEMENT AND BUDGET, U.S. Attorney and U.S. Attorney General (jf, ) (Entered: 12/13/2011)
2011-12-16	2	MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Derek Bambauer, :Firm- Brooklyn School of Law, :Address- 250 Joralemon Street, Brooklyn, NY 11201. Phone No. - 718-780-0397. by CHRISTOPHER SOGHOIAN (Attachments: # 1 Affidavit, # 2 Text of Proposed Order)(Hodes, Scott) (Entered: 12/16/2011)
2011-12-19		MINUTE ORDER granting 2 Motion for Leave of Derek Bambauer to Appear Pro Hac Vice only upon condition that the lawyer admitted, or at least one member of the lawyer's firm, undergo CM/ECF training, obtain a CM/ECF username and password, and agree to file papers electronically. No court papers will be mailed to any lawyer. Signed by Judge Amy Berman Jackson on 12/19/2011. (MT) (Entered: 12/19/2011)
2012-01-11	3	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 12/23/2011. Answer due for ALL FEDERAL DEFENDANTS by 1/22/2012. (Hodes, Scott) (Entered: 01/11/2012)
2012-01-11	4	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 12/23/11. (Hodes, Scott) (Entered: 01/11/2012)
2012-01-11	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. OFFICE OF MANAGEMENT AND BUDGET served on 1/3/2012 (Hodes, Scott) (Entered: 01/11/2012)
2012-01-23	6	NOTICE of Appearance by Matthew Josephson on behalf of OFFICE OF MANAGEMENT AND BUDGET (Josephson, Matthew) (Entered: 01/23/2012)
2012-01-23	7	ANSWER to 1 Complaint by OFFICE OF MANAGEMENT AND BUDGET.(Josephson, Matthew) (Entered: 01/23/2012)
2012-01-23	8	ORDER that defendant shall file a dispositive motion or, in the alternative, a report setting forth the document production schedule on or before 2/20/2012. Signed by Judge Amy Berman Jackson on 1/23/2012. (MT) (Entered: 01/23/2012)
2012-01-23		Set/Reset Deadlines: Defendant's dispositive motion or report setting forth the scheduled to which it will complete production of documents to plaintiff is due by 2/20/2012. (jth) (Entered: 01/23/2012)
2012-02-17	9	STATUS REPORT by OFFICE OF MANAGEMENT AND BUDGET. (Attachments: # 1 Text of Proposed Order)(Josephson, Matthew) (Entered: 02/17/2012)
2012-02-21		MINUTE ORDER re 9 Status Report filed by OFFICE OF MANAGEMENT AND BUDGET. The parties are directed to submit a joint status report by 3/16/2012. Signed by Judge Amy Berman Jackson on 2/21/2012. (MT) (Entered: 02/21/2012)
2012-02-22		Set/Reset Deadlines: Joint Status Report due by 3/16/2012. (jth) (Entered: 02/22/2012)
2012-03-16	10	STATUS REPORT by OFFICE OF MANAGEMENT AND BUDGET, CHRISTOPHER SOGHOIAN. (Attachments: # 1 Text of Proposed Order)(Josephson, Matthew) (Entered: 03/16/2012)
2012-03-19		MINUTE ORDER re 10 Status Report filed by CHRISTOPHER SOGHOIAN, OFFICE OF MANAGEMENT AND BUDGET. The parties are directed to submit a joint status report by 3/30/2012 regarding the status of this case and, if necessary, a proposed briefing schedule for the filing of motions for summary judgment. Signed by Judge Amy Berman Jackson on 3/19/2012. (MT) (Entered: 03/19/2012)
2012-03-19		Set/Reset Deadlines: Joint Status Report and/or Proposed Briefing Schedule is due by 3/30/2012. (jth) (Entered: 03/19/2012)
2012-03-30	11	STATUS REPORT by OFFICE OF MANAGEMENT AND BUDGET. (Attachments: # 1 Text of Proposed Order Proposed Scheduling Order)(Josephson, Matthew) (Entered: 03/30/2012)
2012-03-30	12	SCHEDULING ORDER: Defendant's motion for summary judgment will be due 4/27/2012. Plaintiff's opposition to the motion for summary judgment will be due 5/25/2012. Defendant's reply in support of its motion for summary judgment will be due 6/15/2012. Plaintiff's cross-motion for summary judgment will be due 5/25/2012. Defendant's opposition to the cross-motion for summary judgment will be due 6/15/2012. Plaintiff's reply in support of its cross-motion will be due 7/6/2012. Signed by Judge Amy Berman Jackson on 3/30/2012. (MT) (Entered: 03/30/2012)
2012-04-27	13	MOTION for Summary Judgment by OFFICE OF MANAGEMENT AND BUDGET (Attachments: # 1 Statement of Facts, # 2 Memorandum in Support, # 3 Exhibit 1 - Vaughn Index, # 4 Exhibit 2 - Sheckler Declaration, # 5 Exhibit 3 - Espinel Declaration, # 6 Exhibit 4 - FOIA Request, # 7 Exhibit 5 - OMB Response To FOIA Request, # 8 Exhibit 6 - Admin. FOIA Appeal, # 9 Exhibit 7 - OMB Response To Admin. Appeal, # 10 Exhibit 8 - Redacted FOIA Documents, # 11 Text of Proposed Order)(Josephson, Matthew) (Entered: 04/27/2012)
2012-05-25	14	Cross MOTION for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment by CHRISTOPHER SOGHOIAN (Attachments: # 1 Statement of Facts, # 2 Affidavit, # 3 Exhibit, # 4 Text of Proposed Order)(Hodes, Scott) (Entered: 05/25/2012)
2012-05-25	15	Memorandum in opposition to re 13 MOTION for Summary Judgment filed by CHRISTOPHER SOGHOIAN. (Attachments: # 1 Statement of Facts, # 2 Affidavit, # 3 Exhibit, # 4 Text of Proposed Order)(Hodes, Scott) (Entered: 05/25/2012)
2012-06-01	16	MOTION for Extension of Time to File Response/Reply as to 14 Cross MOTION for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment , 13 MOTION for Summary Judgment by OFFICE OF MANAGEMENT AND BUDGET (Attachments: # 1 Text of Proposed Order)(Josephson, Matthew) (Entered: 06/01/2012)
2012-06-01		MINUTE ORDER granting 16 Motion for Extension of Time to File Reply re 13 MOTION for Summary Judgment and opposition to 14 Cross MOTION for Summary Judgment. The reply and opposition to the cross-motion will be due 6/29/2012. The reply to the cross-motion willl be due 7/20/2012. Signed by Judge Amy Berman Jackson on 6/1/2012. (MT) (Entered: 06/01/2012)
2012-06-29	17	Memorandum in opposition to re 14 Cross MOTION for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment and combined reply brief filed by OFFICE OF MANAGEMENT AND BUDGET. (Attachments: # 1 Declaration Ex. 1 - Victoria Sheckler Supplemental, # 2 Text of Proposed Order)(Josephson, Matthew) (Entered: 06/29/2012)
2012-06-29	18	REPLY to opposition to motion re 13 MOTION for Summary Judgment and combined reply brief filed by OFFICE OF MANAGEMENT AND BUDGET. (Attachments: # 1 Declaration Ex. 1 - Victoria Sheckler Supplemental, # 2 Text of Proposed Order)(Josephson, Matthew) (Entered: 06/29/2012)
2012-07-20	19	REPLY to opposition to motion re 14 Cross MOTION for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment filed by CHRISTOPHER SOGHOIAN. (Attachments: # 1 Affidavit, # 2 Exhibit, # 3 Text of Proposed Order)(Hodes, Scott) (Entered: 07/20/2012)
2012-07-20	20	SURREPLY to re 13 MOTION for Summary Judgment filed by CHRISTOPHER SOGHOIAN. (See Docket Entry 19 to view document). (znmw, ) (Entered: 07/23/2012)
2012-07-31	21	MOTION for Leave to File Response To Plaintiff's Request For Discovery by OFFICE OF MANAGEMENT AND BUDGET (Attachments: # 1 Exhibit OMB Response To Plaintiff's Request For Discovery)(Josephson, Matthew) (Entered: 07/31/2012)
2012-07-31		MINUTE ORDER granting 21 Motion for Leave to File. It is ORDERED that defendant's motion for leave to file a response to plaintiff's request for discovery is GRANTED. No reply by plaintiff is necessary. The Clerk is directed to docket Attachment 1 to 21 . Signed by Judge Amy Berman Jackson on 7/31/12. (lcabj1) (Entered: 07/31/2012)
2012-07-31	22	RESPONSE To Plaintiff's Request For Discovery filed by OFFICE OF MANAGEMENT AND BUDGET. (rdj) (Entered: 08/01/2012)
2012-08-10	23	MOTION for Leave to File Reply to Defendant's Response on Request for Discovery by CHRISTOPHER SOGHOIAN (Attachments: # 1 Reply to Plaintiff's Response on Discovery)(Hodes, Scott) (Entered: 08/10/2012)
2012-08-10		MINUTE ORDER denying 23 Motion for Leave to File Reply to Defendant's Response on Request for Discovery. In light of the Court's statement in its Minute Order of July 31, 2012, granting defendant leave to file a response to plaintiff's request for discovery, that "no reply by plaintiff is necessary," plaintiff's motion for leave to file a reply is DENIED. Signed by Judge Amy Berman Jackson on 8/10/12. (lcabj1) (Entered: 08/10/2012)
2012-11-14	24	Case reassigned by consent to Chief Judge Royce C. Lamberth. Judge Amy Berman Jackson no longer assigned to the case. (gt, ) (Entered: 11/14/2012)
2013-03-26	25	ORDER granting 13 Motion for Summary Judgment; denying 14 Motion for Summary Judgment. Signed by Chief Judge Royce C. Lamberth on 03/26/2013. (lcrcl4) (Entered: 03/26/2013)
2013-03-26	26	MEMORANDUM OPINION explaining the Court's reasoning as to 25 , its Order resolving the parties' cross-motions for summary judgment 13 & 14 . Signed by Chief Judge Royce C. Lamberth on 03/26/2013. (lcrcl4) (Entered: 03/26/2013)
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