Government Contracts FOIA Exemptions Didn’t Apply to Border Wall Documents
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Wednesday, February 5, 2020

FOIA Exemptions Didn’t Apply to Border Wall Documents

By Government Contracts Editorial Staff

The government’s motion for summary judgment regarding a Freedom of Information Act request for records related to border wall construction was denied in part because the District Court for the District of Columbia found the government did not demonstrate the records were exempt under FOIA Exemptions 5 and 4. The plaintiff, which sought records related to “the first implementation of President Donald Trump’s intention to build an updated border wall,” challenged the government’s reliance on the deliberative process privilege under Exemption 5 (5 USC 522(b)(5)) to redact emails asking questions and expressing concerns about the requests for proposals and to withhold internal documents relating to the border wall. The government also relied on Exemption 4 (5 USC 522(b)(4)) to withhold portions of unsuccessful proposals and redact the emails.

Deliberative Process Privilege. To qualify for the deliberative process privilege under Exemption 5, an intra-agency memorandum must be pre-decisional and deliberative, but the government failed to explain the deliberative process to which the withheld records related, the decision-making authority, and the chronology. More specifically, the government failed to identify the specific final agency decisions to which the withheld documents pertained, made no effort to identify the relation between the documents’ authors and recipients, and failed to establish the documents predated final decisions. In addition, FOIA requires the government to release records that fall within an exemption unless it “reasonably foresees that disclosure would harm an interest protected by an exemption” (§552(a)(8)(A)(i)). Here, the government’s “general explanations” and “boiler plate language” did not satisfy the foreseeable harm requirement.

Confidential Information. The court then considered the government’s reliance on Exemption 4, which applies to “trade secrets and commercial or financial information obtained from a person” that is “privileged or confidential.” The plaintiff conceded the unsuccessful proposals were properly withheld under Exemption 3 but argued the redacted email information, although “commercial” and “obtained from a person,” was not “confidential.” In Food Marketing Inst. v. Argus Leader Media (139 SCt 2356), the Supreme Court recently held that information, whether submitted to the government voluntarily or involuntarily, is confidential under Exemption 4 when it is “both customarily and actually treated as private by its owner,” and, perhaps, “provided to the government under an assurance of privacy.” Here, the declarations on which the government relied to establish that the withheld information was of the type that the submitters customarily treated as private lacked sufficient foundation to support the government’s confidentiality claim. For example, the government did not indicate that the submitters told the government that portions of their questions and concerns were confidential or that there was an understanding that questions and concerns sent to the government’s general point of contact would be kept confidential. (Center for Investigative Reporting v. U.S. Customs and Border Protection, et al., DC DofC, 64 CCF ¶81,820)

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