United States District Court, District of Columbia
P. Mehta United States District Judge.
case concerns a Freedom of Information Act
(“FOIA”) request for records relating to a
Defendant Department of Energy (“DOE”)
investigation into lobbying activities of Sandia Corporation
(“Sandia”), a contractor hired by DOE to operate
Sandia National Laboratory, a government-owned nuclear
facility. In 2009, certain officials of Sandia and its parent
company, Lockheed Martin Corporation, devised a plan to lobby
Congress and other federal officials to renew Sandia's
contract with DOE without competitive bidding. An
investigation by DOE's Office of Inspector General later
revealed that the plan was developed and carried out with
taxpayer funds, in violation of federal law. Sandia
eventually reached a civil settlement with the U.S.
Department of Justice.
Center for Public Integrity brought this FOIA action against
DOE, seeking to compel the disclosure of records concerning
the agency's investigation of Sandia. In response to
Plaintiff's FOIA request, DOE produced some records in
full, some in part, and withheld others in their entirety
under certain statutory exemptions. Plaintiff challenges
Defendant's reliance on these exemptions. This court
resolved some of Plaintiff's challenges when it ruled
upon the parties' initial cross-motions for summary
judgment. See Ctr. for Pub. Integrity v. U.S. Dep't
of Energy, 234 F.Supp.3d 65 (D.D.C. 2017). In its
previous Opinion, the court held that Defendant properly
withheld information under FOIA Exemptions 3, 7(E), and 7(F),
as well as certain information under Exemptions 4, 6, and
7(C). Id. at 71. The court also found, however, that
Defendant did not provide sufficient justification with
respect to certain other information withheld under FOIA
Exemptions 4, 6, and 7(C). See Id. Similarly, the
court held that Defendant did not adequately justify its
efforts to segregate and release all non-exempt records.
Id. at 84. The court gave the agency an opportunity
to supplement its declarations to address these deficiencies.
Id. at 71, 84.
before the court are the parties' renewed cross-motions
for summary judgment. Upon consideration of the parties'
submissions and the present record, the court finds Defendant
may rely on Exemption 4 to withhold the e-mail communications
between Sandia and its legal counsel, except those portions
that the agency has officially disclosed through public
releases. The court also concludes that Defendant has now
provided sufficient justification for its redaction of names
and other identifying information pursuant to Exemption 7(C),
except as to those names that the agency has officially
acknowledged through FOIA disclosures. The court therefore
grants the parties' motions in part and denies them in
National Laboratory (“SNL”) is one of three
nuclear laboratories falling under the auspices of Defendant
Department of Energy (“DOE”) and its
sub-component, the National Nuclear Security Administration
(“NNSA”). See NNSA's Mot. for
Partial Summ. J., ECF No. 26 [hereinafter Def.'s Second
Mot. for Partial Summ. J.], at 7; Def.'s Second Mot. for
Partial Summ. J., Decl. of James Eanes, ECF No. 26-1
[hereinafter Initial Eanes Decl.], ¶ 2; Def.'s Mot.
for Extension of Time to File NNSA's Mot. for Partial
Summ. J., ECF No. 23 [hereinafter Def.'s Mot. for Ext. of
Time], at 1; Compl., ECF No. 1, ¶ 5; Answer, ECF No. 8,
¶ 5. SNL is owned by the federal government and forms a
part of NNSA's nuclear weapons complex. DOE's Mot.
for Partial Summ. J., ECF No. 22 [hereinafter Def.'s
First Mot. for Partial Summ. J.], Exs. to Decl. of Adrienne
Martin, ECF No. 22-2 [hereinafter OIG Report, at 8. SNL is not
run, however, by federal employees; rather, its operations
are outsourced to a government contractor. In 1993, following
a competitive bidding process, DOE awarded the contract to
operate SNL to Sandia Corporation (“Sandia”), a
wholly owned subsidiary of Lockheed Martin Corporation
(“Lockheed Martin”). Id.
in 2009, Lockheed Martin and Sandia officials grew concerned
about renewing the contract to operate SNL, which was set to
expire in 2012. Pl.'s Renewed Cross-Mot. for Summ. J.
& Opp'n to Def.'s Mot. for Summ. J., ECF No. 42
[hereinafter Pl.'s Cross-Mot. & Opp'n], at 2.
Under the contract, DOE paid Sandia approximately $2 billion
annually to run the nuclear lab. Id.; cf.
OIG Report at 8. Lockheed Martin and Sandia officials hoped
to renew the contract without competitive bidding, so they
devised a lobbying strategy to secure a contract renewal on a
no-bid basis, which included hiring outside consultants.
Pl.'s Cross-Mot. & Opp'n at 2; cf. OIG
Report at 9-11.
2013, NNSA conducted a preliminary review of documentation
regarding consultant activities between SNL and Heather
Wilson, LLC. OIG Report at 8. Based on that review, NNSA
alleged that “SNL impermissibly attempted to influence
an extension to the Sandia Corporation contract and engaged
Ms. Wilson, ” a former member of the U.S. House of
Representatives, “in these activities.”
Id. This allegation, in turn, launched a special
inquiry by DOE's Office of Inspector General
(“OIG”). Id. During the OIG inquiry,
Sandia took the position that its activities did not violate
federal law. See Id. at 12.
published the results of its investigation in November 2014.
In its Report, OIG concluded that “SNL used Federal
contract funds to engage in activities that were intended to
influence the extension of Sandia Corporation's contract
with [DOE], ” in violation of federal law. Id.
at 8-9; see also Id. at 9 (citing 31 U.S.C. §
1352(a)(1), and 48 C.F.R. § 31.205-22(6)). Specifically,
OIG found that (1) “SNL formed an in-house Contract
Strategy Team and utilized consultants” to develop
“a plan to secure a non-competitive bid
extension” of Sandia's contract with DOE, “an
essential element of [which] was to influence members of
Congress and Federal officials”; (2) “SNL
employees, funded directly or indirectly with Federal
resources, were actively engaged in implementing the plan of
the Contract Strategy Team and closely coordinated with
[Lockheed Martin] officials during this effort”; and
(3) in addition to its contract extension efforts, SNL
disregarded concerns that its provision of certain
information to the New Mexico Congressional Delegation could
be construed as lobbying, and continued to make suggestions
to Congress. See Id. at 9-12. OIG offered a series
of recommendations in its Report, including that DOE
management take steps to ensure SNL contractors would not
interface with government customers or legislators in order
to obtain Sandia business and to recover any costs determined
to be unallowable. Id. at 13. DOE management
concurred with the Report's findings and identified
actions to address OIG's recommendations. See
lobbying activities also drew the attention of the U.S.
Department of Justice (“DOJ”). Following an
investigation, DOJ announced in August 2015 that Sandia had
agreed to pay $4, 790, 042 to settle alleged violations of
the Byrd Amendment and False Claims Act for its use of
federal funds to lobby Congress and federal agencies.
Pl.'s Cross-Mot. & Opp'n at 6; Sandia
Corporation Agrees to Pay $4.7 Million to Resolve Allegations
Related to Lobbying Activities, U.S. Dep't of
Justice (Aug. 21, 2015),
Sandia did not make any admission of liability as part of the
November 2014, Plaintiff Center for Public Integrity
submitted a FOIA request to DOE to produce, in sum and
substance, all records relating to OIG's investigation of
Sandia. The history of Plaintiff's FOIA request is fully
set forth in the court's earlier Opinion, so the court
does not repeat it here. See generally Ctr. for Pub.
Integrity, 234 F.Supp.3d at 72. For present purposes, it
suffices to say that DOE withheld certain material, described
in greater detail below, on the basis of FOIA Exemptions 4
and 7(C). Those withholdings are the subject of the
parties' renewed cross-motions for summary judgment.
STANDARD OF REVIEW
FOIA cases are appropriately resolved on motions for summary
judgment. Brayton v. Office of the U.S. Trade
Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). A
court must grant summary judgment “if the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A dispute is “genuine” only
if a reasonable fact-finder could find for the nonmoving
party, and a fact is “material” only if it is
capable of affecting the outcome of litigation. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
“Unlike the review of other agency action that must be
upheld if supported by substantial evidence and not arbitrary
or capricious, the FOIA expressly places the burden ‘on
the agency to sustain its action' and directs the
district courts to ‘determine the matter de
novo.'” U.S. Dep't of Justice v. Reporters
Comm. for Freedom of Press, 489 U.S. 749, 755 (1989)
(quoting 5 U.S.C. § 552(a)(4)(B)).
agency bears the burden of proving that it withheld certain
materials responsive to a plaintiff's FOIA request
pursuant to a statutory exemption. Citizens for Pub.
Responsibility & Ethics in Wash. v. U.S. Dep't of
Justice, 746 F.3d 1082, 1088 (D.C. Cir. 2014)
[hereinafter CREW I]. “The agency may carry
that burden by submitting affidavits that ‘describe the
justification 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.'” Id. (quoting
Larson v. Dep't of State, 565 F.3d 857, 862
(D.C. Cir. 2009)). “To successfully challenge an
agency's showing that it complied with the FOIA, the
plaintiff must come forward with specific facts demonstrating
that there is a genuine issue with respect to whether the
agency has improperly withheld extant agency records.”
Span v. U.S. Dep't of Justice, 696 F.Supp.2d
113, 119 (D.D.C. 2010) (internal quotation marks omitted).
parties' renewed cross-motions for summary judgment
present three issues for resolution: (1) whether Defendant
properly withheld e-mails between Sandia officials and the
company's legal counsel pursuant to Exemption 4; (2)
whether Defendant properly redacted the names and other
identifying information of certain individuals pursuant to
Exemption 7(C); and (3) whether Defendant satisfied its
obligation to produce all reasonably segregable material. The
court will address each of these issues in turn, starting
with the parties' dispute over the applicability of
case, large portions of two e-mail strings between Sandia
managers and Sandia legal counsel remain at issue under
Exemption 4. Def.'s Renewed Mot. for Summ. J., ECF No. 41
[hereinafter Def.'s Mot.], at 6-7; Def.'s Mot.,
Def.'s Statement of Material Facts Not in Dispute, ECF
No. 41-4 [hereinafter Def.'s Stmt. of Facts], ¶ 8.
See generally Notice of Filing of Exs. in Supp. of
Def.'s Mot. for Partial Summ. J., ECF No. 27, Ex. H, ECF
No. 27-7. Exemption 4 permits an agency to withhold
“trade secrets and commercial or financial information
[that is] obtained from a person and [is] privileged or
confidential.” 5 U.S.C. § 552(b)(4). As written,
the exemption contains two threshold requirements-“the
information must be (1) ‘obtained from a person'
and (2) ‘commercial or financial.'” Wash.
Post Co. v. U.S. Dep't of Health & Human Servs.,
690 F.2d 252, 266 (D.C. Cir. 1982) [hereinafter Wash.
Post I]. If these threshold requirements are met, then
the court must determine if the information is
“privileged or confidential.” Id.
4's threshold elements are not at issue. Plaintiff does
not question whether the material withheld pursuant to
Exemption 4 was “obtained from a person.”
See Pl.'s Cross-Mot. for Summ. J. &
Opp'n to Def.'s Mots. for Summ. J., ECF No. 30
[hereinafter Pl.'s Initial Cross- Mot.], at 8; see
also 5 U.S.C. § 551(2) (defining
“person” to include a “corporation”).
Similarly, Plaintiff agrees with Defendant that the e-mails
withheld contain “commercial” information.
See Pl.'s Initial Cross-Mot. at 8; see
also Def.'s Second Mot. for Partial Summ. J. at 17
(“The documents include . . . emails regarding
commercial information.”); cf. Pl.'s
Cross-Mot & Opp'n at 4-5 (solely addressing
privilege); Pl.'s Reply to Def.'s Opp'n to
Pl.'s Renewed Cross-Mot. for Summ. J., ECF No. 46
[hereinafter Pl.'s Reply], at 1-3 (same). Thus, the sole
dispute pertains to the redacted material's privileged or
confidential character. As to the former ground, Defendant
specifically claims that the redactions to the e-mails are
protected from disclosure by the attorney-client privilege.
Def.'s Mot. at 6-8.
court previously held that Defendant's declarations fell
“well short of establishing attorney-client
privilege” because they lacked the necessary factual
detail to decide certain key issues, including (1) whether
Sandia's counsel was providing legal, as opposed to
business, advice to Sandia managers, and (2) whether Sandia
waived the privilege through third-party disclosure. Ctr.
for Pub. Integrity, 234 F.Supp.3d at 77. Defendant's
supplemental declaration responds to these shortcomings.
First, Defendant's declarant, James Eanes, a Sandia
employee responsible for managing Sandia's interactions
with NNSA, see Initial Eanes Decl. ¶¶ 1,
3, explains that the purpose of the e-mails was to secure
legal advice of Sandia's counsel regarding the
interpretation of applicable law and contractual
requirements. See Def.'s Mot. at 7; Def.'s
Mot., Decl. of James Eanes in Supp. of Def.'s Mot. for
Summ. J., ECF No. 41-2 [hereinafter Suppl. Eanes Decl.],
¶ 3. Specifically, he states that “[t]he email
thread relates to Sandia management's request for legal
advice regarding the permissible extent to which it could
undertake certain contract completion strategies, to include
funds available for those strategies.” Suppl. Eanes
Decl. ¶ 5. Additionally, Eanes notes that the e-mail
threads contain “two privilege notifications consistent
with the assertion of the Attorney-Client Privilege and/or
Attorney Work Product Immunity.” Id. ¶ 4.
part, Plaintiff does not challenge the applicability of the
attorney-client privilege in the Exemption 4 context or the
agency's insistence that the e-mails qualify as
attorney-client communications. See Pl.'s
Cross-Mot. & Opp'n at 4-5. Instead, Plaintiff focuses
solely on the issue of waiver. It argues that Sandia waived the
attorney-client privilege by voluntarily producing the
e-mails in full to OIG. Cf. Id. at 5. Thus,
according to Plaintiff, Exemption 4 cannot shield e-mails
that lost their privileged character years ago. The court
D.C. Circuit adheres to a “strict rule on waiver”
of the attorney-client privilege. SEC v. Lavin, 111
F.3d 921, 929 (D.C. Cir. 1997). That rule requires the holder
of the privilege to “zealously protect the privileged
materials, taking all reasonable steps to prevent their
disclosure.” Id. “[A]ny voluntary
disclosure by the holder of such a privilege is inconsistent
with the confidential relationship and thus waives the
privilege.” In re Subpoenas Duces Tecum, 738
F.2d 1367, 1369 (D.C. Cir. 1984) (quoting Permian Corp.
v. United States, 665 F.2d 1214, 1219 (D.C. Cir. 1981)).
“Voluntary disclosure, ” in turn, “means
the documents were not judicially compelled.”
Jordan v. U.S. Dep't of Labor, No. 16-1868, 2017
WL 3382057, at *11 (D.D.C. Aug. 4, 2017) (quoting Chubb
Integrated Sys. v. Nat'l Bank of Wash., 103 F.R.D.
52, 63 n.2 (D.D.C. 1984)).
strict rule on waiver applies with equal force when the
voluntary disclosure is made to a federal agency. In
Permian, the D.C. Circuit held that the subject of a
Securities and Exchange Commission (“SEC”)
investigation had “destroyed the confidential
status” of privileged communications by voluntarily
disclosing them to the SEC. 665 F.2d at 1219. The subject of
the investigation tried to block the SEC from sharing the
communications with another agency, asserting that it had
disclosed the privileged records to the SEC for a limited
purpose, but the Circuit rejected that argument. See
Id. at 1220-21. The court explained:
The client cannot be permitted to pick and choose among his
opponents, waiving the privilege for some and resurrecting
the claim of confidentiality to obstruct others, or to invoke
the privilege as to communications whose confidentiality he
has already compromised for his own benefit. . . . The
attorney-client privilege is not designed for such tactical
Id. at 1221. Since Permian, the Circuit has
consistently held parties to have waived privileged
communications that are voluntarily disclosed to government
agencies. See United States v. White, 887 F.2d 267,
271 (D.C. Cir. 1989) (“Under the law of this circuit, a
defendant can waive his attorney-client privilege by
releasing documents to . . . an investigative body at the
pretrial stage.”); In re Subpoenas Duces
Tecum, 738 F.2d at 1370 (holding that party had
“willingly sacrificed its attorney-client
confidentiality by voluntarily disclosing” privileged
material to the SEC); see also In re Grand Jury
Investigation, Misc. Action No. 17-2336 (BAH), 2017 WL
4898143, at *11 (D.D.C. Oct. 2, 2017) (citing cases).
Defendant admits that Sandia produced the e-mails to OIG
“without any legal compulsion on behalf of the
OIG.” Def.'s Second Mot. for Partial Summ. J. at
17-18. At oral argument, Defendant further admitted that, at
the time Sandia disclosed the e-mails to OIG, it did so
without redacting any communication deemed confidential, and
that Sandia did not attempt to claw back the e-mails at the
time of disclosure or upon the completion of the OIG's
investigation. See Hr'g Tr. (draft), Dec. 15,
2017 [hereinafter Tr.], at 8-11. To compound matters, OIG
directly quoted from portions of both e-mails in the publicly
disclosed “Memorandum for the Secretary, ”
see OIG Report at 12; supra note 3, but
Sandia never objected to OIG's public release of its
attorney-client communications, cf. Tr. at 67. And
there is more. In its official Report, OIG described and
quoted from the e-mails to an even greater extent than done
in the Memorandum for the Secretary. OIG Report at 27.
Although not publicly disclosed at first, see Tr. at
68-69, Defendant produced the ...