United States District Court, D. Columbia
[Copyrighted Material Omitted]
CENTER FOR AUTO SAFETY, Plaintiff: Katherine A. Meyer, MEYER
GLITZENSTEIN & EUBANKS LLP, Washington, DC.
U.S. DEPARTMENT OF TREASURY, Defendant: Marina Utgoff
Braswell, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil
Division, Washington, DC.
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,
A. HOWELL, United States District Judge.
plaintiff, Center for Auto Safety (" CAS" ),
requested, under the Freedom of Information Act ("
FOIA" ) , 5 U.S.C. § 552,
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.
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.
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. 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.
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
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.
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.
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.
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.
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
¶ ¶ 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,
to 31 C.F.R. § 1.6, 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
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.
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
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.
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. 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
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).
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." ).
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)).
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
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. 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.
FOIA's Exemption 4
the FOIA, " trade secrets and commercial or financial
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." ), 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.
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
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
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
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
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.
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
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
F.Supp.2d at 35 n.8; see alsoCtr. for Auto