ORDER DENYING REQUEST FOR REDACTIONS: April 2, 2021
CBCA 6631
SAGE ACQUISITIONS LLC,
Appellant,
v.
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT,
Respondent.
Michael R. Rizzo, Aaron S. Ralph, and Kevin J. Slattum of Pillsbury Winthrop Shaw
Pittman LLP, Los Angeles, CA, counsel for Appellant.
Blythe I. Rodgers, Julie K. Cannatti, and William J. Selinger, Office of the General
Counsel, Department of Housing and Urban Development, Washington, DC, counsel for
Respondent.
GOODMAN, Board Judge.
ORDER
On January 28, 2021, the Board issued a decision dismissing this appeal for lack of
jurisdiction.  Appellant has requested that certain information be redacted from the Board’s
decision before the decision is issued to the public.  We deny appellant’s request.
Background
Appellant filed its notice of appeal on October 11, 2019, attaching as exhibit 2 a
Standard Form 1436 (SF 1436) executed by its chief financial officer, and its termination for
convenience settlement proposal (TSP) dated January 10, 2019, comprised of a sixty-nine-


CBCA 6631 2
page narrative and a two-page table listing forty-nine exhibits.  The exhibits were not
attached to the notice of appeal.
 On November 14, 2019, appellant filed its complaint, which contained references to
various dollar amounts in the SF 1436 and TSP narrative.  That same day, respondent filed
its appeal file as required by Board Rule 4 (48 CFR 6101.4 (2019)).  Exhibit 77 of the appeal
file consisted of 1854 pages, comprised of appellant’s emails dated January 10, 2019,
transmitting with attachments the SF 1436, the TSP, the exhibit list of the TSP, and the forty-
nine exhibits.
On July 1, 2020, respondent filed a motion to dismiss the appeal.  Appellant filed an
opposition to the motion on August 18, 2020, and respondent filed a reply on September 8,
2020.
On October 9, 2020, appellant filed a response to the Board’s order dated October 7,
2020 (which sought clarification of an issue raised in the briefing of the motion to dismiss),
attaching as an exhibit the SF 1436.
On October 15, 2020, more than one year after the appeal was initiated, the parties
filed a motion for the Board to enter a protective order, attaching a joint draft protective
order.  Paragraph 1.a–.d of the joint draft protective order listed various documents produced
by respondent during discovery which respondent designated as protected.  Several
documents were identified by title, and others identified as listed in an email chain.  None
of the documents were identified as having been filed previously with the Board by either
party.  Paragraphs 2 and 3 contained the procedure for designating material as protected
before exchanging it between parties and filing with the Board:
 2.  A party may designate any document, information, or other tangible item
as protected by marking the following words on the face and every subsequent
page of the original or photocopy of the document, information, or other
tangible item, or by delivering at the time of disclosure, production, or filing
to the party to whom disclosure is made written notices that the tangible item
is protected material.  To the extent that the party generating or providing any
document, information, or tangible item wishes to designate it as protected, it
shall do so when it is passed to another party of record or to the Board.  If the
party receiving any document, information, or tangible item wishes to add a
protective designation to the material received, it shall do so within seven
working days of receipt by informing all parties (and the Board, if the material
was submitted to the Board) that it is to be protected.

CBCA 6631 3
3.  The party claiming protection is to identify each portion of the material for
which it is claiming protection.  This may be done either by highlighting or
otherwise marking the material for which protection is sought, or by providing
a separate redacted version of the material, with all protected portions deleted,
with respect to material not protected.  However, any party entering any
protected material into the record or submitting protected material to another
party in response to a proper discovery request is to submit a redacted version
along with the original version.
On October 30, 2020, before the Board adopted the joint protective order, the Board
held a telephone conference with counsel to discuss the procedures for submitting materials
to the Board deemed protected by the parties and marked as protected under the protective
order.  Because of procedures in effect from the COVID-19 pandemic, with Board personnel
working remotely, the Board informed the parties as to the procedures for submitting
protected material to the Board so that it could be stored and accessed separately from the
remainder of the record.  The Board’s order of October 30, 2020, confirming the discussion
in the telephone conference and adopting the parties’ proposed protective order, emphasized
that all protected material shall be submitted to the Board electronically, with each page of
the document designated protected pursuant to the protective order, either on a physical
media or via efile, encrypted and password protected.
After the parties’ protective order was adopted by the Board, neither party submitted
to the Board any materials or documents which they deemed to be protected pursuant to the
protective order.
On November 12, 2020, the Board issued an order directing appellant to answer
inquiries concerning issues raised in the briefing of the motion to dismiss.  That order
referenced various dollar amounts in the SF 1436, the TSP, the briefing of the motion to
dismiss, and the complaint.  On November 20, 2020, appellant responded with a narrative
concerning the calculation of the dollar amounts at issue.  Appellant did not identify its
narrative or any portion of it as protected.
On January 28, 2021, the Board issued a decision to the parties dismissing this appeal
for lack of jurisdiction. Although the parties had made no submission to the Board
identifying material as protected, the Board, as a precaution, issued its opinion under a
protective order with an order stating:
[The] parties may request that the Board redact portions of the decision which
they believe is from material that has been previously designated as protected. 
Accordingly, the parties have until Friday, February 5, 2021 to identify any
portions of the decision that they believe may require redaction.  For each

CBCA 6631 4
proposed redaction, the party is to provide a basis for the Board making the
redaction, including when the material sought to be redacted was previously
designated as protected.
(Emphasis added.)
Appellant filed on February 5, 2021, a request to redact all dollar amounts in the
Board’s decision.  Appellant’s request attached a copy of the Board’s decision with all dollar
amounts redacted, and did not identify the source of the proposed redactions as any material
previously designated as protected.1  In support of its request, appellant stated various legal
arguments and allegations of confidentiality.  On February 11, 2021, respondent submitted
a response to the Board’s order, referencing appellant’s response, stating: “Although the
proposed redactions pertain to information that was not previously marked protected
pursuant to the Protective Order for this appeal, the Agency has no objections to Appellant’s
Proposed Redactions.” 
On February 19, 2021, the Board held a telephone conference to discuss appellant’s
request for redactions.  On March 2, 2021, the Board issued an order requesting
supplementation of appellant’s February 5, 2021, request for redaction, to which appellant
responded on March 8, 2021.
Discussion
This Board’s decision in Yates-Desbuild Joint Venture v. Department of State, CBCA
3350, et al., 15-1 BCA ¶ 36,027, discusses the parameters and operation of protective orders,
with extensive legal citation.  As stated in that decision, blanket protective orders, like the
one issued in this appeal, allow the parties to exchange confidential or sensitive information
in discovery, but limit the exchange to a narrow group of individuals.  Blanket protective
orders allow the parties to protect specific documents that they, in good faith, believe are
entitled to protection.2  Anything less than a document-by-document or very narrowly drawn
category-by-category assessment fails to satisfy the initial good faith review requirement. 
After this “sifting,” and proper designation of materials as protected, a party may then file
1 The Board’s decision had quoted the dollar amounts with citations to the SF
1436, the TSP narrative submitted by both appellant and respondent, the complaint, briefings
of the motion to dismiss, and appellant’s responses to the Board’s orders, all of which had
been previously submitted to the Board without redaction and not designated in whole or in
part as protected material by either party. 
2 In contrast, umbrella protective orders are used to limit all documents produced
to only certain individuals.

CBCA 6631 5
the protected information with the tribunal with the understanding that the public would not
have access to it.  The protective order in this case contains specific procedures for marking
material as protected on a document-by-document basis, including highlighting and redacting
information.  The Board’s order adopting the parties’ protective order included specific
requirements that the parties submit protected material to the Board electronically and
encrypted/password protected, so that it could be kept separate from the remainder of the
record. 
Appellant requests this Board to redact all dollar amounts in the Board’s decision
dismissing the appeal, which was issued three months after the blanket protective order was
issued.  The proposed redactions are not from any material previously marked protected in
this appeal, as neither party submitted material to the Board designated as protected.  In its
request for redaction, appellant did not identify where in the record these dollar amounts
appeared, or any material previously filed with the Board that was designated as protected
pursuant to the protective order and that contained these dollar amounts, as directed by the
Board when the protective order was adopted.  Rather, appellant supported its request for
redaction by stating (1) that the dollar amounts were proprietary and confidential business
data that is exempt from disclosure under exemption 4 of the Freedom of Information Act,
5 U.S.C. § 552(b)(4) (2018), and the Trade Secrets Act, 18 U.S.C. § 1905; (2) that the
Federal Acquisition Regulation establishes that commercial and financial information that
is privileged or confidential includes cost breakdowns, profit, indirect cost rates, and similar
information, see 48 CFR 15.506(e)(3); and (3) that Sage keeps its cost and profit data
confidential and private, as the cover note3 to its January 9 termination settlement proposal
shows,4 and respondent gave no indication it would release this data.  Appellant cites Food
Marketing Institute v. Argus Leader Media, 139 S. Ct. 2356 (2019), for the holding that
commercial or financial information is exempt from disclosure when the owner treats the
information as confidential and the information was provided to the Government under an
assurance of privacy by the agency receiving the information.
Yates-Desbuild emphasizes that the general rule requires openness of judicial
proceedings.  To overcome the presumption that documents filed with a tribunal should be
3 Appellant submitted this document in response to the Board’s order dated
March 2, 2021, which had been previously submitted by respondent in the appeal file.  The
Board could not discern a request for confidentiality in the document.
4 While the Board’s decision identified the sources of the dollar amounts from
documents and pleadings in the record which had not been designated as protected, appellant
only refers to the source of the proposed redactions as the TSP with general allegations of
confidentiality.

CBCA 6631 6
publicly available and to establish good cause for keeping documents under a protective
order, a party seeking protection must demonstrate a particular need for protection.  Broad,
conclusory allegations of harm, unsubstantiated by specific examples or articulated reasoning
are insufficient. Appellant’s arguments lack merit.  While appellant contends that the TSP
was submitted to respondent with the expectation that the Government would keep it
confidential, the Government was not the first to make the TSP a public document.  Rather,
appellant filed the SF 1436 and the TSP as an exhibit to its notice of appeal.  Appellant’s
allegation that it expected respondent to keep these documents confidential based on statute,
regulation, or presumptions described in case law, is inconsistent with appellant’s voluntary,
unprotected filing with the Board of the SF 1436 and TSP when it initiated the appeal.  Also,
when soon thereafter respondent filed the SF 1436, the TSP, and appellant’s exhibits to the
TSP with the Board, appellant did not object.
The Board’s decision dismissing the appeal cited the dollar amounts which appellant
seeks to redact from the SF 1436, the TSP, appellant’s complaint, respondent’s motion to
dismiss the appeal, appellant’s response to the motion, the Board’s orders of inquiry to
appellant, and appellant’s responses to the Board’s orders.  Except for the Board’s second
order of inquiry and appellant’s response to the order, all of these documents and pleadings
were filed with the Board in the one-year period before the parties submitted their request
for a protective order.  Once the protective order was issued, neither party submitted
information to the Board designated as protected, and therefore no portion of the record was
designated as protected while the appeal was pending before the Board.5
Appellant’s broad allegations of confidentiality of the unprotected information it seeks
to redact are inconsistent with its filing of all documents containing the information without
designating the documents as protected pursuant to the protective order.  Respondent’s lack
of opposition to the proposed redactions is inconsistent with its submission of the appeal file
as unprotected.  Appellant has not shown good cause to overcome the assumption of public
access to the information for which it seeks redaction.
5 Appellant could have no expectation of confidentiality of an unprotected
record, as the public has access to the record pursuant to Board Rule 9(e):
Review and copying.  The Clerk makes records for decision, except evidence
submitted under a protective order or in camera, available for review on
reasonable notice during business hours, and provides copies of such available
documents for a reasonable fee.

CBCA 6631 7
Order
Appellant’s request to redact the Board’s decision dismissing the appeal is DENIED.
The decision will be released to the public in its entirety, without redaction.
    Allan H. Goodman        
ALLAN H. GOODMAN
Board Judge