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Center for Auto Safety v. U.S. Department of Treasury

United States District Court, D. Columbia

September 30, 2015

CENTER FOR AUTO SAFETY, Plaintiff,
v.
U.S. DEPARTMENT OF TREASURY, et al., Defendants

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[Copyrighted Material Omitted]

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          For CENTER FOR AUTO SAFETY, Plaintiff: Katherine A. Meyer, MEYER GLITZENSTEIN & EUBANKS LLP, Washington, DC.

         For U.S. DEPARTMENT OF TREASURY, Defendant: Marina Utgoff Braswell, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.

         For GENERAL MOTORS LLC, Intervenor Defendant: Andrew C. Lillie, LEAD ATTORNEY, PRO HAC VICE, HOGAN LOVELLS U.S. LLP, Denver, CO; Justin Aaron Savage, LEAD ATTORNEY, HOGAN LOVELLS, Washington, DC.

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         MEMORANDUM OPINION

         BERYL A. HOWELL, United States District Judge.

         The plaintiff, Center for Auto Safety (" CAS" ), requested, under the Freedom of Information Act (" FOIA" ) , 5 U.S.C. ยง 552,

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documents related to the 2009 Chrysler and General Motors bankruptcies. The defendant, the United States Department of the Treasury (" Treasury" ) has released to the plaintiff over 65,000 pages of records but continues to withhold approximately 452 documents in whole and 90 documents in part at the request of the defendant-intervenor General Motors LLC (" GM" ) and 284 documents in whole or in part at the request of Chrysler Group LLC (" Chrysler" ). Treasury contends that the withheld documents are exempt from release pursuant to Exemption 4 of the FOIA, 5 U.S.C. § 552(b)(4), because they contain confidential commercial or financial information likely to impair the government's ability to obtain necessary information in the future and likely to cause substantial competitive harm to GM and Chrysler. The plaintiff challenges the majority of the withholdings, arguing that the defendants' Vaughn indices are insufficiently descriptive and the defendants have not sufficiently shown that the information withheld is confidential.

         Pending before the Court are cross-motions for summary judgment: (1) a joint motion for summary judgment brought by Treasury and GM (" Jt. Mot." ), ECF No. 36, and (2) a cross-motion for summary judgment brought by CAS (" Pl.'s Mot." ), ECF No. 40. For the reasons discussed below, the defendants' motion is granted in part and denied in part, and the plaintiff's cross-motion is denied without prejudice.

         I. BACKGROUND

         In the fall of 2008, in response to economic instability, Congress enacted the Emergency Economic Stabilization Act (" EESA" ). Defs.' Mot., Ex. 1, Decl. of Kathleen Cochrane (" Cochrane Decl." ) ¶ 26, ECF No. 36-1. The EESA established the Office of Financial Stability (" OFS" ), which implemented the Troubled Asset Relief Program (" TARP" ). Id. Pursuant to the TARP, Treasury established the Automotive Industry Financing Program (" AIFP" ) and, through 2009, provided billions of dollars of loans to entities associated with GM and Chrysler.[1] Id. ¶ ¶ 26-28; Pl.'s Statement of Material Facts as to Which There is No Genuine Issue & Pl.'s Resp. to Defs.' Statement of Material Facts (" Pl.'s SMF" ) ¶ ¶ 18-19, ECF No. 40; Defs.' Resp. to Pl.'s Statement of Material Facts as to Which There is No Genuine Issue (" Defs.' Resp. SMF" ) ¶ ¶ 18-19, ECF No. 48-1. In connection with the loans, GM and Chrysler entities were required to implement restructuring plans, see Cochrane Decl. ¶ ¶ 27-28; Pl.'s SMF ¶ ¶ 29-30; Defs.' Resp. SMF ¶ ¶ 29-30, and in February 2009, President Obama established the Auto Task Force (" Task Force" ) to review the viability of the restructuring plans, Cochrane Decl. ¶ 30.

         The government provided an initial loan to General Motors Corporation (" Old GM," now known as " Motors Liquidation Company" ), which filed for bankruptcy, on June 1, 2009, as part of its restructuring. Id. ¶ 27. Pursuant to Section 363 of the Bankruptcy Code, 11 U.S.C. § 363, a newly formed entity, General Motors LLC (" GM" ), the defendant-intervenor in this lawsuit, purchased most of the assets and some of the liabilities of Old GM (" GM Section 363 Sale" ). Id. ; Pl.'s SMF ¶ ¶ 3, 11; Defs.' Resp. SMF ¶ ¶ 3, 11. Similarly, Chrysler LLC (" Old Chrysler," now known as " Old Carco" ) filed for bankruptcy in April 2009, and in June 2009, the newly

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formed entity, Chrysler Group LLC (" Chrysler" ) purchased most of the assets and some of the liabilities of Old Chrysler (" Chrysler Section 363 Sale" ). Cochrane Decl. ¶ 28; Pl.'s SMF ¶ ¶ 4, 12; Defs.' Resp. SMF ¶ 4, 4 n.1, 12. As part of the Section 363 Sales, GM and Chrysler were not required to assume certain liabilities that were left with Old GM and Old Chrysler. Pl.'s SMF ¶ ¶ 11-12; Defs.' Resp. SMF ¶ ¶ 11-12. This aspect of the auto industry bailout is the principal focus of the FOIA request at issue.

         The plaintiff, CAS, is " a nationwide nonprofit consumer advocacy organization . . . . work[ing] toward improved safety, environmental responsibility, and fair dealing in the automotive industry and marketplace." Compl. ¶ 4, ECF No. 1; Pl.'s Mot., Ex. R (" FOIA Req." ) at 1, ECF No. 42-10. On June 8, 2009, CAS requested under the FOIA: " All e-mail correspondence since January 1, 2009, in any way related to the Chrysler and General Motors bankruptcies, the events preceding those bankruptcies, and the federal government's roles in and deliberations concerning those matters." FOIA Req. at 1; see also Compl. ¶ 18; Defs.' Statement of Material Facts as to Which There is No Genuine Issue (" Defs.' SMF" ) ¶ 1, ECF No. 36; Pl.'s SMF ¶ ¶ A.1, B.1; Defs.' Resp. SMF ¶ 1. The request included " all . . . e-mails generated and/or received by the Department of the Treasury and . . . Brian Deese[,] Ed Montgomery[,] Ron Bloom[,] Steven Rattner[,] Matthew Feldman[,] [and] Timothy Geithner[.]" FOIA Req. at 1; see also Compl. ¶ 19; Defs.' SMF ¶ 1. CAS also requested a waiver of the fees and costs associated with processing its request. Compl. ¶ 20.

         The plaintiff's FOIA request was prompted by concern about the liabilities left with the old, bankrupt companies, which allegedly have left consumers injured by defectively manufactured cars without recourse. See Pl.'s Mem. Supp. Mot. Summ. J. & Opp'n Defs.' Mot. Summ. J. (" Pl.'s Mem." ) at 1, 16, 19, ECF No. 40. According to the plaintiff, " in exchange for the bailout funds[,]" GM and Chrysler were allowed to leave liabilities, " including the need to compensate consumers injured by defective cars manufactured by General Motors and Chrysler[,]" with the old, bankrupt companies which do not have " the necessary funds to compensate victims of such accidents and incidents and their families." Id. at 1 (emphasis omitted). The plaintiff is concerned about the government's role in allegedly " requiring the 'new' Chrysler and GM to leave behind potential liabilities vis-à-vis consumers who have been both physically and economically injured by defective products manufactured by the 'old' GM and Chrysler." Id. at 16.

         Almost two years after the plaintiff made its FOIA request, around March 2011, Treasury had identified 170,000 pages of documents responsive to the plaintiff's request but denied the plaintiff's fee waiver request, which denial was appealed by CAS. Compl. ¶ ¶ 23-25. Then, on June 7, 2011, having received no response to its appeal, see id. ¶ ¶ 28-29, CAS filed the Complaint in this action requesting declaratory and injunctive relief, see id. at 10-11.

         On December 16, 2011, the parties filed a Voluntary Stipulation of Partial Settlement and Proposed Order for Further Proceedings (" Stipulation" ), ECF No. 12, which the Court granted, see Minute Order, Dec. 19, 2011. Per the Stipulation, Treasury agreed to waive the fees associated with the plaintiff's FOIA request and to produce, on a rolling basis for twelve months, certain records retrieved from its files that were dated between January 1, 2009 and August 27, 2009. Stipulation

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¶ ¶ 1, 3-6; Defs.' SMF ¶ 2; Pl.'s SMF ¶ B.2. Thus, by agreement, the plaintiff's FOIA request came to include documents dated through August 27, 2009.

         Pursuant to 31 C.F.R. § 1.6,[2] Treasury provided GM and Chrysler with opportunities to review and object to the disclosure of documents Treasury identified as responsive to the plaintiff's FOIA request. Cochrane Decl. ¶ 34. According to the parties' opening briefs, although negotiations narrowed the scope of the parties' dispute, GM continues to object to Treasury's release of a total of 452 whole documents and 90 partially redacted documents--a total of 542 documents, Cochrane Decl. ¶ 24; Pl.'s SMF ¶ A.2; Defs.' Resp. SMF ¶ 2, and Chrysler continues to object to Treasury's release of 284 documents in whole or in part, Pl.'s SMF ¶ A.2; Defs.' Resp. SMF ¶ 2. Consequently, a total of 542 GM documents and 284 Chrysler documents may remain in dispute, see Cochrane Decl. ¶ 24, although the parties suggest slightly different numbers in the course of their briefing.[3]

         The records withheld that remain at issue consist of email communications between Treasury and either GM or Chrysler, or between business advisors and legal representatives of Treasury, GM and Chrysler and related attachments to those emails. Defs.' SMF ¶ 6; Pl.'s SMF ¶ B.6. Some of the information pertains to Old GM and Old Chrysler and liabilities that were left with these entities as a result of the Section 363 Sales. Pl.'s SMF ¶ ¶ 10, 13; Defs.' Resp. SMF ¶ ¶ 10, 13. All of the information was generated by or provided to Treasury between January and August 2009 and most was required by Treasury when deciding whether to provide federal funding to GM and Chrysler under the TARP. Pl.'s SMF ¶ ¶ 16, 28; Defs.' Resp. SMF ¶ ¶ 16, 28. Treasury has submitted two separate Vaughn indices for the documents at issue, one for the disputed GM documents, see Jt. Mot., Ex. 2, Decl. of Laura L. Fitzpatrick (" GM Decl." ), Ex. D (" GM Vaughn Index" ), ECF No. 36-2, and one for the disputed Chrysler documents, see id., Ex. 3, Decl. of Chrysler Group LLC (" Chrysler Decl." ), Ex. A (" Chrysler Vaughn Index" ), ECF No. 36-3, each of which was initially created by GM and Chrysler, respectively, at Treasury's request, see Cochrane Decl. ¶ ¶ 17-24.

         II. LEGAL STANDARD

         Congress enacted the FOIA as a means " to open agency action to the light of public scrutiny," ACLU v. United States DOJ, 750 F.3d 927, 929, 409 U.S.App.D.C. 431 (D.C. Cir. 2014) (quoting Dep't of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976)), and " to promote the 'broad disclosure of Government records' by generally requiring federal agencies to make their records available to

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the public on request," DiBacco v. U.S. Army, 795 F.3d 178, 183 (D.C. Cir. 2015) (citing United States DOJ v. Julian, 486 U.S. 1, 8, 108 S.Ct. 1606, 100 L.Ed.2d 1 (1988)). As the Supreme Court has " consistently recognized[,] [] the basic objective of the Act is disclosure." Chrysler Corp. v. Brown, 441 U.S. 281, 290, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979). At the same time, the statute represents a " balance [of] the public's interest in governmental transparency against legitimate governmental and private interests that could be harmed by release of certain types of information." United Techs. Corp., Pratt & Whitney Div. v. United States DOD, 601 F.3d 557, 559, 390 U.S.App.D.C. 136 (D.C. Cir. 2010) (internal quotation marks and citations omitted). Reflecting that balance, the FOIA contains nine exemptions set forth in 5 U.S.C. § 552(b), which " are explicitly made exclusive and must be narrowly construed." Milner v. Dep't of the Navy, 562 U.S. 562, 565, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011) (internal quotation marks and citations omitted) (citing FBI v. Abramson, 456 U.S. 615, 630, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982)); see Murphy v. Exec. Office for U.S. Attys., 789 F.3d 204, 206 (D.C. Cir. 2015); Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice ( CREW ), 746 F.3d 1082, 1088, 409 U.S.App.D.C. 113 (D.C. Cir. 2014); Pub. Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865, 869, 389 U.S.App.D.C. 356 (D.C. Cir. 2010). " [T]hese limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act." Rose, 425 U.S. at 361.

         The agency invoking an exemption to the FOIA has the burden " to establish that the requested information is exempt." Fed. Open Mkt. Comm. of Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 352, 99 S.Ct. 2800, 61 L.Ed.2d 587 (1979); see U.S. Dep't of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 755, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989); DiBacco, 795 F.3d at 195; CREW, 746 F.3d at 1088; Elec. Frontier Found. v. United States DOJ, 739 F.3d 1, 7, 408 U.S.App.D.C. 1 (D.C. Cir. 2014); Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55, 57, 357 U.S.App.D.C. 217 (D.C. Cir. 2003). In order to carry this burden, an agency must submit sufficiently detailed affidavits or declarations, a Vaughn index of the withheld documents, or both, to demonstrate that the government has analyzed carefully any material withheld, to enable the court to fulfill its duty of ruling on the applicability of the exemption, and to enable the adversary system to operate by giving the requester as much information as possible, on the basis of which the requester's case may be presented to the trial court.[4] See Oglesby v. U.S. Dep't of Army, 79 F.3d 1172, 1176, 316 U.S.App.D.C. 372 (D.C. Cir. 1996) (" The description and explanation the agency offers should reveal as much detail as possible as to the nature of the document, without actually disclosing information that deserves protection . . . . [which] serves the purpose of providing the requestor with a realistic opportunity to challenge the agency's decision." (citation omitted)); see also CREW, 746 F.3d at 1088 (" The agency may carry that burden by submitting affidavits that 'describe 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.'" (quoting Larson v. U.S. Dep't of State, 565 F.3d 857, 862, 385 U.S.App.D.C. 394 (D.C. Cir. 2009)). While " an agency's

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task is not herculean[,]" it must " describe the justifications for nondisclosure with reasonably specific detail and demonstrate that the information withheld logically falls within the claimed exemption." Murphy, 789 F.3d at 209 (internal quotation marks omitted) (citing Larson, 565 F.3d at 862).

         The FOIA provides federal courts with the power to " enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant," 5 U.S.C. § 552(a)(4)(B), and " directs district courts to determine de novo whether non-disclosure was permissible," Elec. Privacy Info. Ctr. v. U.S. Dep't of Homeland Sec., 777 F.3d 518, 522, 414 U.S.App.D.C. 151 (D.C. Cir. 2015). A district court must review the Vaughn index and any supporting declarations " to verify the validity of each claimed exemption." Summers v. U.S. Dep't of Justice, 140 F.3d 1077, 1080, 329 U.S.App.D.C. 358 (D.C. Cir. 1998). Moreover, a district court has an " affirmative duty" to consider whether the agency has produced all segregable, non-exempt information. Elliott v. U.S. Dep't of Agric., 596 F.3d 842, 851, 389 U.S.App.D.C. 272 (D.C. Cir. 2010) (referring to court's " affirmative duty to consider the segregability issue sua sponte " ) (quoting Morley v. CIA, 508 F.3d 1108, 1123, 378 U.S.App.D.C. 411 (D.C. Cir. 2007)); Stolt-Nielsen Transp. Grp. Ltd. v. United States, 534 F.3d 728, 734, 383 U.S.App.D.C. 1 (D.C. Cir. 2008) (" [B]efore approving the application of a FOIA exemption, the district court must make specific findings of segregability regarding the documents to be withheld." ) (quoting Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1116, 377 U.S.App.D.C. 460 (D.C. Cir. 2007)); Trans-Pac. Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1028, 336 U.S.App.D.C. 189 (D.C. Cir. 1999) (" [W]e believe that the District Court had an affirmative duty to consider the segregability issue sua sponte. . . . even if the issue has not been specifically raised by the FOIA plaintiff." ); see also 5 U.S.C. § 552(b) (" Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection." ).

         Summary judgment is appropriate when " there is no genuine dispute as to any material fact." Fed.R.Civ.P. 56. " In FOIA cases, summary judgment may be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith." Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215, 406 U.S.App.D.C. 440 (D.C. Cir. 2013) (internal quotation marks omitted) (quoting Consumer Fed'n of Am. v. U.S. Dep't of Agric., 455 F.3d 283, 287, 372 U.S.App.D.C. 198 (D.C. Cir. 2006)). " Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears 'logical' or 'plausible.'" Judicial Watch, Inc. v. United States DOD, 715 F.3d 937, 941, 404 U.S.App.D.C. 462 (D.C. Cir. 2013) (quoting ACLU v. United States DOD, 628 F.3d 612, 619, 393 U.S.App.D.C. 384 (D.C. Cir. 2011)); Larson, 565 F.3d at 862 (quoting Wolf v. CIA, 473 F.3d 370, 374-75, 374 U.S.App.D.C. 230 (D.C. Cir. 2007)).

         III. DISCUSSION

         Treasury has categorized the withheld GM and Chrysler documents into nine topical categories: (1) GM and Chrysler confidential financial data; (2) GM and Chrysler compensation and benefits information; (3) GM transactions; (4) GM dealers and dealer networks; (5) GM manufacturing and operations; (6) GM European operations and Opel; (7) Chrysler confidential tax and legal liability information; (8) Chrysler confidential operational, labor, and manufacturing information; and (9) Chrysler draft transactional materials. See Jt. Mem. Supp. Mot. Summ. J. (" Jt. Mem." ) at 15-24, ECF No. 36. The plaintiff challenges the withholding under

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Exemption 4 of the documents on two main grounds. First, the plaintiff argues the defendants failed to show that Treasury obtained the withheld information from GM or Chrysler. Second, the plaintiff argues the release of the information would in no way impair Treasury's ability to obtain information in the future, nor is it likely to cause GM or Chrysler substantial competitive harm, and, therefore, the information is not confidential.[5] In making these arguments, the plaintiff emphasizes that the Vaughn indices generally provide insufficient information to make a determination as to whether the defendants properly withheld documents under Exemption 4. Each of the plaintiff's arguments is addressed in detail below following review of the Exemption 4 legal framework and the information the plaintiff has clarified it does not seek. For the reasons discussed below, and in light of the deficiencies in the defendants' papers, the defendants will be instructed to submit a revised Vaughn index and/or amended declarations, subjecting both the parties and this Court to another round of summary judgment briefing.[6]

         A. FOIA's Exemption 4

         Under the FOIA, " trade secrets and commercial or financial information obtained

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from a person" that is " privileged or confidential" may be withheld from disclosure. 5 U.S.C. § 552(b)(4). Where, as here, the documents are not trade secrets, see Cochrane Decl. ¶ 35 (" Treasury has not withheld any information as a trade secret under Exemption 4." ),[7] to sustain the burden of showing that Exemption 4 was properly applied, an agency must establish that the withheld records are " (1) commercial or financial, (2) obtained from a person, and (3) privileged or confidential." Pub. Citizen Health Research Grp. v. FDA, 704 F.2d 1280, 1290, 227 U.S.App.D.C. 151 (D.C. Cir. 1983). The parties do not dispute that the first requirement of this test is met. See Jt. Opp'n & Reply at 14; see generally Pl.'s Mem.

         With respect to the second requirement, the statute makes clear that a " 'person' includes an individual, partnership, corporation, association, or public or private organization other than an agency." 5 U.S.C. § 551(2) (emphasis added). Information " generated within the Government" is not " obtained from a person" and, thus, does not fall under the exemption. Bd. of Trade v. Commodity Futures Trading Comm'n, 627 F.2d 392, 404, 200 U.S.App.D.C. 339 (D.C. Cir. 1980), abrogated on other grounds by U.S. Dep't of State v. Wash. Post Co., 456 U.S. 595, 102 S.Ct. 1957, 72 L.Ed.2d 358 (1982); see also Soucie v. David, 448 F.2d 1067, 1079 n.47, 145 U.S.App.D.C. 144 (D.C. Cir. 1971) (" The exemption for confidential information is available only with respect to information received from sources outside the Government[,]" and applies " only to the extent [the document] contains private information given confidentially . . . or information obtained from nongovernmental parties on a confidential basis." ); Grumman Aircraft Engineering Corp. v. Renegotiation Board, 425 F.2d 578, 582, 138 U.S.App.D.C. 147 (D.C. Cir. 1970) (" [Exemption 4] . . . encompass[es] only information received from person outside the Government." ).

         With respect to the third requirement of the test, under which withheld records must be " privileged or confidential," the defendants do not withhold any documents as " privileged." Thus, the parties dispute only whether the documents are " confidential." The standard for determining whether information is confidential differs depending on whether the information was voluntarily or involuntarily submitted to the agency.

         A two-prong test is used to determine whether information involuntarily submitted to a Federal agency is " confidential" for FOIA purposes: whether release of the records would (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." Nat'l Parks & Conserv. Ass'n v. Morton, 498 F.2d 765, 770, 162 U.S.App.D.C. 223 (D.C. Cir. 1974) (" National Parks " ); accord Jurewicz v. U.S. Dep't of Agric., 741 F.3d 1326, 1331, 408 U.S.App.D.C. 271 (D.C. Cir. 2014). With respect to the first prong, " the governmental impact inquiry . . . focus[es] on the possible effect of disclosure on [the] quality" of the information. Ctr. for Auto Safety v. Nat'l Highway Traffic Safety Admin., 244 F.3d 144, 148, 345 U.S.App.D.C. 248 (D.C. Cir. 2001) (quoting Critical

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Mass. Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 878, 298 U.S.App.D.C. 8 (D.C. Cir. 1992)). For the second prong, " [s]ubstantial competitive harm" is " limited to harm flowing from the affirmative use of proprietary information by competitors," Pub. Citizen Health Research Grp., 704 F.2d at 1291 n.30 (emphasis in original); see Jurewicz, 741 F.3d at 1331 (same), and " requires a showing of both actual competition and a likelihood of substantial competitive injury," Jurewicz, 741 F.3d at 1331. " In reviewing an agency's determination as to substantial competitive harm," courts " recognize that 'predictive judgements are not capable of exact proof,' and . . . generally defer to the agency's predictive judgments as to 'the repercussions of disclosure.'" United Techs. Corp., 601 F.3d at 563 (citations omitted).

         The bar is lower for withholding confidential information voluntarily provided to the Government, making withholding an easier burden for the agency to meet: voluntarily submitted information need only be " of a kind that would customarily not be released to the public by the person from whom it was obtained" to be withheld as confidential. Critical Mass, 975 F.2d at 878. " [I]n assessing customary disclosure, the court will consider how the particular party customarily treats the information, not how the industry as a whole treats the information." Ctr. for Auto Safety, 244 F.3d at 148. " A party can voluntarily make protected disclosures of information, and as long as the disclosures are not made to the general public, such disclosures do not constitute customary disclosures." Id.

         A threshold question in this case is which standard applies in evaluating the agency's withholding under Exemption 4: the standard applicable to voluntarily or involuntarily submitted documents? " For purposes of Exemption 4, information provided to the government because it is required for participation in a voluntary government program is treated as mandatory, as opposed to a voluntary, submission of information." Judicial Watch, Inc. v. U.S. Dep't of Treasury, 796 F.Supp.2d 13, 35 n.8 (D.D.C.2011); see also Ctr. for Auto Safety, 244 F.3d at 149 (holding that when an agency has " actual legal authority" to compel production of information, such production is not voluntary for the purposes of the FOIA); Pub. Citizen Health Research Grp. v. FDA, 964 F.Supp. 413, 414 n. 1 (D.D.C. 1997) (" Information is submitted involuntarily, however, if it is supplied pursuant to statute, regulation or some less formal mandate." ).

         In this case, while the defendants summarily contend that some of the disputed documents were voluntarily provided to Treasury, see Jt. Mem. at 12 (arguing some of the disputed information qualifies for Exemption 4 protection under the Critical Mass test); Cochrane Decl. at 9 n.3 (" Some of the information provided by GM and Chrysler may not have been required in connection with their loan applications, and would therefore be considered voluntarily submitted." ), the defendants point to no particular documents and litigate only based on the involuntary standard, see Cochrane Decl. at 9 n.3 (" Treasury believes that all of the withheld information satisfies the stricture standard applied to mandatorily-submitted documents, and will therefore litigate only based upon this higher standard." ). Moreover, the defendants do not dispute that any information turned over by GM and Chrysler to Treasury was submitted by the companies in their efforts to secure funding under TARP. Therefore, the withheld documents are considered involuntarily submitted, and the ordinary National Parks standard must be applied. See Judicial Watch, Inc. v. U.S. Dep't of Treasury, 796

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          F.Supp.2d at 35 n.8; see alsoCtr. for Auto ...


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