United States District Court, District of Columbia
Randolph D. Moss United States District Judge
This action to enjoin Defendant United States Transportation Command (“USTC”) from publicly releasing information submitted to it by Plaintiff AAR Airlift Group, Inc. (“AAR”)- known as a “reverse” Freedom of Information Act (“FOIA”) case-is presently before the Court on the parties’ cross-motions for summary judgment. See Dkt. 18, 19. AAR asserts that line-item pricing information included in its contract with USTC constitutes “commercial or financial information” that is protected from disclosure under FOIA Exemption 4. Dkt. 1 ¶ 11. USTC responds that AAR has failed to meet its burden to justify the nondisclosure of this information. Dkt. 19 at 5. As explained below, the Court agrees with AAR that the rationale given by USTC in its March 3, 2015, Decision Letter is insufficient to sustain the agency’s decision to disclose the line-item pricing information. The Court, accordingly GRANTS Plaintiff’s motion for summary judgment, Dkt. 18, and DENIES Defendant’s cross-motion for summary judgment, Dkt. 19. The matter is REMANDED to USTC for further consideration in light of this opinion.
The following facts are not in dispute. AAR is a civilian provider of airlift services to the Department of Defense and its constituent agencies, including USTC. Dkt. 1 ¶¶ 2-5. In September 2013, USTC issued a Request for Proposals (“RFP”) to procure passenger and cargo airlift services for the United States Africa Command in Uganda, the Central African Republic, the Democratic Republic of the Congo, and South Sudan. Id. ¶ 6. The Performance Work Statement issued in connection with the RFP explains that the contractor will “provide all personnel, equipment, supplies, transportation, tools, materials, supervision, insurance, life support (e.g., housing, meals[, ] etc., for contractor personnel) and other items and services necessary to operate two fixed-wing aircraft . . . [for] approximately 225 [flying] hours . . . for 24 days per month, ” as well as a “surge” schedule adding approximately 100 flying hours once every three months. Dkt. 1-4 at 3, 5.
On November 27, 2013, USTC awarded the contract, designated Contract Number HTC711-14-D-R026 (“R026 contract”), to AAR. Dkt. 1 ¶ 7. As relevant here, the signed R026 contract specifies pricing for certain services and supplies required to fulfill the contract-known as Contract Line Item Numbers (“CLINs”). See Dkt. 12 at 3-19 (redacted version). The CLINs include unit and/or maximum prices during specified periods of time for supplies and services itemized as “Post Award Conference, ” “Mobilization, ” “Monthly Fixed Operation Costs, ” “Regular Flying Hours, ” “Surge Flying Hours, ” “Fuel EPA Reimbursable, ” “Reimbursables, ” and “Demobilization.” Id.
Around November 26, 2014, USTC advised AAR by letter that it had received a request from Rose Santos of FOIA Group for records “that may result in the release of data in our possession that you released, specifically” the R026 contract. Dkt. 1-4 at 20; Dkt. 1 ¶ 8. The letter explained that AAR was “invited to provide [USTC] justification to withhold the data in question from public release, ” and attached “guidelines that may assist [AAR] in justifying a request that [USTC] not release [AAR’s] information.” Dkt. 1-4 at 20. On December 4, 2014, AAR responded by providing USTC with a redacted copy of the R026 contract, which omitted the dollar amounts of the unit and maximum prices for the CLINs identified above, as well as the total award amount. Dkt. 1-4 at 22; Dkt. 12. In addition to noting that it was providing USTC with a redacted copy of the contract “in response to [USTC’s] letter, ” AAR’s letter also stated that
[AAR] assumes the following with regards to the FOIA request:
1. [AAR’s] proposal and all updates remain AAR . . . confidential and proprietary information and is not to be released . . . .
2. The FOIA request corresponds only to the basic contract, and not to any modifications, task orders, or task order modifications.
Dkt. 1-4 at 22.
On January 20, 2015, USTC e-mailed AAR, stating that it had received AAR’s response but that “[t]he information you provided as justification to withhold your company’s proposal does not show how if released [it] would cause competitive harm. Please provide a more in-depth analysis . . . by 3 February 2015.” Dkt. 1-4 at 24. On January 26, 2015, AAR replied, stating that (1) in its prior response “AAR identified that our proposal, including all updates, remain confidential and proprietary information”; (2) “AAR properly marked our proposal in accordance with FAR 3.104-4, ” which restricts the disclosure of contractor bid or proposal information and source selection information; and (3) “[d]isclosure of the proposal . . . would cause irreparable harm as it includes competition sensitive information regarding technical, pricing, and business operations that are unique and specific to AAR . . . .” Id.
On March 3, 2015, USTC notified AAR by letter of its decision to release the R026 contract to the FOIA Group. Dkt. 1-4 at 26 (“Decision Letter”). It explained that it had “reviewed [AAR’s] response, the requested information, and the applicable law” and that “AAR did not address the contract itself which was the subject of the FOIA request, but rather addressed the proposal, which was not incorporated into the contract.” Id. It also stated that it would refrain from disclosing the contract for five business days following AAR’s receipt of the Decision Letter so that AAR could seek an injunction against public disclosure of the contract. Id.
On March 15, 2015, Plaintiff filed the instant action. Dkt. 1. Plaintiff sought a temporary restraining order (“TRO”) and preliminary injunction against public release of the R026 contract, as well as permanent injunctive relief. Id.; Dkt. 2. The Court held a hearing on Plaintiff’s motion for preliminary relief on March 16, 2015. March 16, 2015, Minute Order. At the hearing, both parties agreed to the entry of an injunction against disclosure of the contract until December 16, 2015, in order to permit adjudication of the case on the merits. Dkt. 6; Dkt. 61-1 at 1-2. The Court, accordingly, denied as moot Plaintiff’s Application for a TRO and Motion for Preliminary Injunction, Dkt. 2, and entered an order enjoining the public release of the R026 contract “and all other related documents and memoranda within the scope of FOIA request 14-34” until otherwise ordered ...