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Soghoian v. Office of Management & Budget

United States District Court, District of Columbia

March 26, 2013


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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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For OFFICE OF MANAGEMENT AND BUDGET, Defendant: Matthew Josephson, LEAD ATTORNEY, DEPARTMENT OF JUSTICE, Civil Division, Federal Programs Branch, Washington, DC.

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Royce C. Lamberth, Chief United States District Judge.

Before the Court are the parties' cross-motions for summary judgment concerning a Freedom of Information Act (" FOIA" ) request for records held by the Office of Management and Budget (" OMB" ). ECF Nos. 13 and 14. The Court will grant summary judgment in favor of the defendant, OMB, and deny the plaintiff's motion.


In the summer of 2012, representatives of the movie and music industries adopted measures to reduce online copyright infringement with substantial input from the Obama Administration. Pl.'s Opp'n to Def.'s Mot. for Summ. J. & Cross-Mot. for Summ. J. (" Pl.'s Opp'n" ) 1, ECF No. 14; Def.'s Mot. for Summ. J. (" Def.'s Mot." ) 2, ECF No. 13. The OMB's Intellectual Property Enforcement Coordinator (" IPEC" ), acting within her statutorily prescribed authority, contributed to the negotiations. Def.'s Mot. 1-2. These negotiations ultimately led to the voluntary adoption by private parties of a " graduated response" system, which employs a " progressively escalating response system" that promotes legitimate use of copyrighted information and deters infringing activity. Id. at 2.

Plaintiff, Christopher Soghoian, submitted a FOIA request to the OMB in June 2011 seeking disclosure of documents relating to the graduated response system. Def.'s Mot. Ex. 4, FOIA Request (" Request" ), ECF No. 13-6. Specifically, plaintiff requested:

[C]opies of all communications, documents and notes from meetings related to discussions between the Office of the U.S. Intellectual Property Enforcement Coordinator and any federal agency, the National Cable and Telecommunications Association (NCTA), AT& T, Verizon, Time Warner Cable, CableVision, Charter

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Communications, Comcast, and Qwest Communications, The Recording Industry Association of America (RIAA) and Motion Picture Association of America (MPAA), and any individual record and movie studios regarding " graduated responses" to subscriber copyright infringement.

Request 1. Plaintiff narrowed the scope of his request to " all records created between December 1, 2009 and June 22, 2011." Id. OMB responded to plaintiff's request in September 2011 by disclosing 189 pages of responsive documents while withholding sixteen pages in full pursuant to 5 U.S.C. § 552(b)(5) and portions of additional documents pursuant to § § 552(b)(4)-(6). Def.'s Mot. Ex. 5, OMB Response (" Response" ), ECF No. 13-7; Def.'s Statement of Facts, ECF No. 13.

Plaintiff filed an administrative appeal in October 2011 challenging OMB's decision to withhold disclosure of certain information under FOIA Exemptions 4 and 5. Def.'s Mot. Ex. 6, Administrative Appeal 1, ECF No. 13-8. In December 2011, OMB released additional portions of eighteen pages and continued to withhold only one page in full pursuant to Exemption 5, as well as portions of 59 pages under Exemptions 4, 5, and 6. Def.'s Mot. Ex. 7, Appeal Response, ECF No. 13-9.

Plaintiff filed this action in December 2011 alleging that OMB " has wrongfully withheld agency records requested by plaintiff, and has failed to comply with the statutory time limit under FOIA for rendering decisions on plaintiff's administrative appeal." Compl. ¶ 20, ECF No. 1. Plaintiff does not challenge (1) the adequacy of OMB's search for responsive documents, (2) redactions made pursuant to Exemption 6, or (3) redactions made of non-responsive material. Pl.'s Opp'n 5; Def.'s Statement of Facts 2. Plaintiff instead confines his challenge to OMB's decision to withhold documents under Exemptions 4 and 5. Def.'s Statement of Facts 2.


Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment must be granted when " there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citing Fed.R.Civ.P. 56(c)). FOIA actions are typically and appropriately resolved on summary judgment. See Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 527, 395 U.S. App. D.C. 155 (D.C. Cir. 2011). District courts may grant summary judgment to an agency if the information provided in the agency's declarations describe " the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738, 211 U.S. App. D.C. 135 (D.C. Cir. 1981).

The Freedom of Information Act, 5 U.S.C. § 552, requires federal agencies to grant public access to certain records within agency control. " FOIA is often explained as a means for citizens to 'know what their Government is up to.'" NARA v. Favish, 541 U.S. 157, 171-72, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004) (quoting DOJ v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989)). FOIA also provides exemptions from the disclosure requirement; these exemptions are to be " narrowly construed." FBI v. Abramson, 456 U.S. 615, 630, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982). Exemptions 4 and 5

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are relevant to this case and are described in greater detail below.

District courts review agencies' decisions to withhold records de novo, and agencies have the burden to justify nondisclosure of certain documents. 5 U.S.C. § 552(a)(4)(B)-(C); Quinon v. FBI, 86 F.3d 1222, 1227, 318 U.S. App. D.C. 228 (D.C. Cir. 1996). Thus, the government " ultimately has the onus of proving that the documents are exempt from disclosure." Pub. Citizen Health Research Grp. v. FDA, 185 F.3d 898, 904, 337 U.S. App. D.C. 343 (D.C. Cir. 1999) (internal quotations and modifications omitted). An agency may rely on affidavits, declarations, a Vaughn index, in camera review, or a combination of these options to satisfy its burden.

A Vaughn index indicates what FOIA exemptions the agency claims for each withheld or redacted document and contains a justification for its decision to withhold that information. Vaughn v. Rosen, 484 F.2d 820, 827, 157 U.S. App. D.C. 340 (D.C. Cir. 1973). While agency affidavits are " accorded a presumption of good faith," SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200, 288 U.S. App. D.C. 324 (D.C. Cir. 1991), they must " provide[] a relatively detailed justification, specifically identify[ing] the reasons why a particular exemption is relevant and correlate[ing] those claims with the particular part of a withheld document to which they apply," Judicial Watch, Inc. v. FDA, 449 F.3d 141, 146 (D.C. Cir. 2006). Further, " [i]f a document contains exempt information, the agency must still release 'any reasonably segregable portion' after deletion of the nondisclosable portions." Oglesby v. U.S. Dep't of the Army, 79 F.3d 1172, 1176, 316 U.S. App. D.C. 372 (D.C. Cir. 1996) (citing 5 U.S.C. § 552(b)).

Defendant's Vaughn index includes a Bates number for each document, the document's date, a description of the document, the relevant FOIA exemption, and a description of the information withheld. Def.'s Mot. Ex. 1, Vaughn Index (" Vaughn Index" ), ECF No. 13-3. Defendant also provided copies of each redacted document, providing some context for the redactions. Def.'s Mot. Ex. 8, Redacted FOIA Documents (" Redacted Documents" ), ECF No. 13-10.


Exemption 4 permits nondisclosure of information accurately characterized as " trade secrets and commercial or financial information obtained from a person and privileged or confidential." 5 U.S.C. § 552(b)(4). Information is exempt only if it (1) involves trade secrets or is commercial or financial, (2) is obtained from a person, and (3) is privileged or confidential. See Pub. Citizen Health Research Grp. v. FDA, 704 F.2d 1280, 1290, 227 U.S. App. D.C. 151 (D.C. Cir. 1983). Exemption 4 balances the strong public interest in favor of disclosure against the right of private businesses to protect sensitive information. Nat'l Parks & Conservation Ass'n v. Morton, 498 F.2d 765, 768-69, 162 U.S. App. D.C. 223 (D.C. Cir. 1974).

OMB's decision to withhold portions of documents under Exemption 4 stemmed from its classification of that information as commercial, obtained from a person, and privileged or confidential. Def.'s Mot. 5. Plaintiff concedes that the Memorandum of Understanding (" MoU" ) drafts at issue were obtained from a person. Pl.'s Opp'n 7. Thus, the disputed issues are ...

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