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Kahn v. Federal Motor Carrier Safety Administration

August 26, 2009



Jeremy Kahn, an attorney proceeding pro se, brings this action against the Federal Motor Carrier Safety Administration ("FMCSA") under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"), seeking to obtain three FMCSA decisions that Kahn contends the FMCSA wrongfully withheld from him in violation of FOIA; namely: P.A.M. Transport, Inc., FMCSA Docket MC-150496 (Oct. 2, 2007) ("P.A.M."); Celadon Trucking Services, Inc., FMCSA Docket MC-185116 (Dec. 28, 2007) ("Celadon"); and Con-Way Truckload, Inc., FMCSA Docket MC-119399 (Jan. 14, 2008) ("Con-Way").*fn1 Before the Court are Kahn's motion for summary judgment [#11] and FMCSA's cross-motion for summary judgment [#24]. Upon consideration of the motions, the oppositions thereto, and the record of this case, the Court concludes that Kahn's motion must be denied, and FMCSA's motion must be granted.


To qualify for federal registration, commercial motor carriers must maintain liability insurance in prescribed amounts. 49 U.S.C. § 13906(a)(1). This security must be sufficient to pay for bodily injury resulting from the negligent operation, maintenance, or use of commercial motor vehicles and for property damage or loss ("BI & PD"). Id. As an alternative to acquiring insurance, commercial motor carriers may qualify as "self-insurer[s]" by showing that they have sufficient financial resources to satisfy certain specified security requirements. Id. at § 13906(d); 49 C.F.R. § 387.309. Specifically: The FMCSA will consider and will approve, subject to appropriate and reasonable conditions, the application of a motor carrier to qualify as a self-insurer, if the carrier furnishes a true and accurate statement of its financial condition and other evidence that establishes to the satisfaction of the FMCSA the ability of the motor carrier to satisfy its obligation for bodily injury liability, property damage liability, or cargo liability. . . . [A]pplicants for authority to self-insure against bodily injury and property damage claims should submit evidence that will allow the FMCSA to determine:

(1) The adequacy of the tangible net worth of the motor carrier in relation to the size of operations and the extent of its request for self-insurance authority.

(2) The existence of a sound self-insurance program.

(3) The existence of an adequate safety program.

(4) Additional information . . . as the FMCSA may require.

49 C.F.R. § 387.309. The FMCSA has administered the self-insurance program since 2000. Until then, the Federal Highway Administration ("FHWA") had administered the program. Before the FHWA, the Interstate Commerce Commission ("ICC") administered the program.

The FMCSA prepares written decisions on applications for self-insurance authorization and publishes notices of these decisions in the FMCSA Register. Whereas the written decisions explain the rationale for FMCSA action, the notices merely state what final action the FMCSA took with respect to a given self-insurance application. The practice of the ICC and the FHWA, and for a time the FMCSA, was to provide the full written self-insurance decisions to the public upon request. In October 2007, the FMCSA reversed course and discontinued the practice of providing full written self-insurance decisions to the public. According to the FMCSA, this practice change was motivated by a concern that the financial information contained in full decisions might expose commercial motor carriers to competitive harm. Therefore, the FMCSA began treating such financial information as confidential and propriety and referring public requests for self-insurance decisions to the FMCSA FOIA office.

The genesis of the instant action is the issuance of three self-insurance decisions: P.A.M., Celadon, and Con-Way. Between October 2007 and January 2008, the FMCSA published notices for each of these decisions. Below the listing of each decision was printed: "Copies of Decisions May Be Purchased by Calling DC News and Data, Inc." Kahn, an attorney who practices before the FMCSA (and who practiced before its predecessor agencies), alleges that he called DC News and Data, Inc., but its telephone number had been disconnected. Thereafter, Kahn sent three separate letters to the FMCSA requesting these decisions. The FMCSA acknowledged receiving these letters but did not immediately provide the decisions. Kahn filed the original complaint in this action in December 2007, after the FMCSA did not provide him with a copy of the P.A.M. decision immediately upon his request. Kahn filed an amended complaint in January 2008, after the FMCSA did not provide him with copies of the Celadon and Con-Way decisions immediately upon his request.

Since Kahn filed his complaints, the FMCSA has provided him with all three of the requested decisions: the Con-Way decision was provided in unredacted form in March 2008; and the Celadon and P.A.M. decisions were provided in redacted form in May 2008. The FMCSA determined that the Con-Way decision did not contain confidential commercial information and therefore provided it without redaction. The FMCSA believed that the Celadon and P.A.M. decisions did contain confidential commercial information. Therefore, the FMCSA notified Celadon and P.A.M. that Kahn had requested copies of their decisions and allowed them an opportunity "to submit any written objections to release" of their decisions. 49 C.F.R. § 7.17(a). Celadon and P.A.M. submitted objections. The FMCSA adopted Celadon's objections, redacted the Celadon decision accordingly, and released the Celadon decision to Kahn.*fn2 The FMCSA determined that P.A.M.'s objections were too broad, adopted narrower redactions, and released the P.A.M. decision to Kahn.*fn3 Notwithstanding the FMCSA's disclosure of these decisions, Kahn persists in this suit. Indeed, Kahn has filed a motion for summary judgment, and the FMCSA has filed a cross motion for summary judgment. The Court now turns to these motions.


Kahn contends he is entitled to the Celadon and P.A.M. decisions in unredacted form under FOIA, 5 U.S.C. § 552(a)(2)(A), which provides: "[e]ach agency, in accordance with published rules, shall make available for public inspection and copying -- final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases[.]" FMCSA contends FOIA does not require it to provide the Celadon and P.A.M. decisions in unredacted form because the decisions contain confidential commercial information and thus fall within FOIA Exemption 4, 5 U.S.C. § 552(b)(4), which provides: "[t]his section does not apply to matters that are -- (4) . . . commercial or financial information obtained from a person and privileged or confidential[.]" The Court agrees with FMCSA and therefore grants its motion for summary judgment.

In a FOIA suit, an agency is entitled to summary judgment once it bears its burden of demonstrating that no material facts are in dispute and that all information that falls within the requests at issue either has been produced, is unidentifiable, or is exempt from disclosure. Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001). A court may award summary judgment to a FOIA defendant solely on the basis of information provided by the agency in sworn statements so long as the agency provides reasonably specific details that justify the nondisclosures and demonstrate that the information withheld logically falls within the claimed exemption unless record evidence or agency bad faith contradicts such statements. Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). To successfully challenge such a showing, a plaintiff must do more than ...

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