Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

LANDFAIR v. UNITED STATES DEPT. OF THE ARMY

March 27, 1986

STANLEY W. LANDFAIR, Plaintiff,
v.
UNITED STATES DEPARTMENT OF THE ARMY, Defendant


Norma Holloway Johnson, United States District Judge.


The opinion of the court was delivered by: JOHNSON

NORMA HOLLOWAY JOHNSON, UNITED STATES DISTRICT JUDGE

 This is an action under the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1982), as amended by Pub. L. No. 98-620, 98 Stat. 3335 (1984), in which plaintiff seeks disclosure of information maintained in records by defendant pertaining to actions planned or considered by defendant to correct the performance deficiencies of the hydraulic turbines installed by Hitachi America, Ltd. at the Chief Joseph Dam (the Dam) in the State of Washington. Defendant contends that it has released all information capable of being retrieved and proper for disclosure under the FOIA. Presently before the Court is the motion of defendant for summary judgment. After consideration of the motion, the opposition, the memoranda and affidavits submitted by the parties, the Court finds that defendant has properly responded to plaintiff's FOIA request. The Court, therefore, will grant the motion of defendant for summary judgment.

 I.

 With respect to the documents requested in Count I, plaintiff opposes the withholding of ten documents enumerated as exhibits A and B and H through O. Defendant contends that exhibits A and B have been withheld pursuant to FOIA exemption (b)(4) which provides, in short, for the nondisclosure of confidential commercial information obtained by the Government from an outside party. 5 U.S.C. § 552(b)(4). As to exhibits H through O, defendant maintains that they are intra-agency memoranda or letters which reflect the deliberative process of the agency and are thus protected as privileged documents.

 Although plaintiff does not refute the contents of the withheld documents, he asserts his entitlement to those portions of the documents which contain factual information and are segregable from otherwise exempt portions of the documents. See 5 U.S.C. § 552(b). He further argues that he has not been provided with a sufficiently detailed portion of the exhibits which have been redacted. As the scope of his request has been reduced to ten documents, he requests that defendant be directed to provide those documents for the Court's in camera inspection.

 A court will grant a motion for summary judgment only when it is convinced that the moving party has met its burden of establishing that there are no genuine issues of material fact in dispute. Fed. R. Civ. P. 56(c). In order to prevail on a motion for summary judgment in FOIA litigation, "the target agency must show that each identifiable document is wholly exempt from FOIA's inspection requirements." Hydron Laboratories, Inc. v. Environmental Protection Agency, 560 F. Supp. 718, 721 (D.R.I. 1983); Exxon Corporation v. Federal Trade Commission, 213 U.S. App. D.C. 356, 663 F.2d 120, 126 (D.C. Cir. 1980). Moreover, the agency must sustain its burden through the submission of detailed affidavits which identify the documents at issue and explain why they fall under the claimed exemptions. See Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820, 826-28 (D.C. Cir. 1980), cert. denied, 415 U.S. 977, 39 L. Ed. 2d 873, 94 S. Ct. 1564 (1974); Hayden v. National Security Agency, 197 U.S. App. D.C. 224, 608 F.2d 1381, 1387 (D.C. Cir. 1979); cert. denied, 446 U.S. 937, 64 L. Ed. 2d 790, 100 S. Ct. 2156 (1980). Based on the pleadings and affidavits submitted in support of the motion, the Court is convinced that defendant has sustained its burden and the entry of summary judgment in its favor is appropriate.

 II.

 Exemption (b)(4)

 Defendant has provided plaintiff with exhibits A and B with several excisions and maintains that the excluded portions are exempt from disclosure under 5 U.S.C. § 552(b)(4). Exemption (b)(4) protects from disclosure information which is (a) commercial or financial, and (b) obtained from a person, and (c) confidential or privileged. See Gulf & Western Industries, Inc. v. United States, 199 U.S. App. D.C. 1, 615 F.2d 527, 529 (D.C. Cir. 1980). Examples of items generally regarded as commercial or financial information include: business sales statistics, research data, technical designs, overhead and operating costs, and information on financial condition. See Washington Post Co. v. HHS, 223 U.S. App. D.C. 139, 690 F.2d 252, 266 (D.C. Cir. 1982). As to the second of exemption (b)(4)'s specific criteria, the term "person" refers to a wide range of entities, including corporations. Comstock International v. Export-Import Bank, 464 F. Supp. 804, 806 (D.C. Cir. 1979).

 Finally, information qualifies as "confidential" under either test articulated by our Court of Appeals in National Parks and Conservation Association v. Morton, 162 U.S. App. D.C. 223, 498 F.2d 765 (D.D.C. 1974):

 
To summarize, commercial or financial matter is "confidential" for purposes of the exemption if disclosure of the information is likely to have either of the following effects: (1) impair the Government's ability to obtain necessary information in the future; or (2) cause substantial harm to the competitive position of the person from whom the information was obtained.

 Id. at 770 (hereinafter National Parks). In order to withhold information under the first test, the agency must demonstrate that the information was provided voluntarily and that the business entity would not provide it if it were subject to disclosure. See Carlisle Tire & Rubber Co. v. United States Customs Service, Nos. 78-2001, 78-2002, 79-1224, slip op. (D.D.C. November 21, 1979). As to the second test, actual competitive harm need not be demonstrated; evidence of actual competition and the "likelihood ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.