1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Plainti ff

, v. Civil Action No. 1:18-cv-03022 (CJN) U.S. DEPARTMENT OF COMMERCE, De f

endant

.

MEMORANDUM OPINION Citizens for Responsibility and E thics in Washington (“CREW”) r equested pursuant to the Freedom of Information Act tw o categories of records from the U.S. Department of Commerce: “[a]ll co mmunication between former White House adv isor to the Commerce Department Eric Branstad and former Trump campaign official Ric k Gates from January 20, 2017[,] to March 1, 2018,” and “[a]ll communication[s] sent or received by Branstad that mention[ ] the defense firm Circinus.” See generallyPl.’s Statement of U ndisputed Material Facts in Supp. of Cross-Mot. for Summ. J. (“Pl. ’s SOMF”) ¶¶ 1–2 , ECF No. 15-4 at 2. Commerce withheld certain inf ormation under FOIA Exemptions 4, 5, and 6, id. ¶ 4, and both Parties have moved for summary judgment, see generallyDef.’s Mot. for Summ. J., ECF No. 14; Pl.’s Cross-Mot. for Summ. J ., ECF No. 15. For the reasons sta ted below, the Court grants in part and denies in part both Cross-Motions. I. Background On August 2, 2018, CREW submitted a F OIA request to Commerce se eking the two categories of information identif ied above. CREW states that i t is interested i n the requested2 communications because, CREW clai ms, Gates contacted Branstad o n behalf of the defense firm Circinus while Branstad worke d at Commerce. Compl. ¶ 8, ECF No . 1. And CREW notes that “Gates reportedly considered Branstad a ‘contact’ at Commerce w ho could help secure the agency’s endorsement of lucrativ e defense work by Circinus for the Romanian government.” Pl.’s Mem. in Supp. of Cross-Mot . (“Pl.’s Mem.”) at 2 (citing id. ), ECF No. 15-1. Commerce produced 165 pages of res ponsive records and withheld other responsive records under FOIA Exemptions 4, 5, and 6. See Pl.’s SOMF ¶¶ 3–4. Commerce argues that its searches were adequate; that its withholdings are lawful; and t hat it complied with FOIA’s segregability requirement. See generally Def.’s Mem. of P. & A . in Supp. of Def.’s Mot. (“Def.’s Mem.”), ECF No. 14 at 6. CREW challenges only Commerc e’s assertion of Exemptions 4 and 5 regardi ng specific documents. See generallyPl.’s Mem. Because CREW does not oppose summary judgment on the adequacy of the search, Commerce’s decision to withhold of certain informati on under Exemption 6, or whether C ommerce complied with FOIA’s segregability requirement , the Court gran ts judgment in favor of Commerce on those grounds. II. Analysis “FOIA . . . [requires] that an age ncy disclose records on reque st, unless they fall within one of nine [narrow] exemptions.” Milner v. Dep’t of the Navy , 562 U.S. 562, 565 (2011). “FOIA mandates a ‘strong presumpt ion in favor of disclosure,’” Nat’l Ass’n of Home Builders v. Norton , 309 F.3d 26, 32 (D.C. Cir. 2002) (quoting U.S. Dep’t of State v. Ray , 502 U.S. 164, 173 (1991))—so much so that, unlike Ad ministrative Pr ocedure Act la wsuits, in which agency actions are subject to arbitrary a nd capricious review, FOIA “e xpressly places the burden ‘on the agency to sustain its action’ a nd directs district courts to ‘d etermine the matter de novo,’” U.S.3 Dep’t of Justice v. Reporters Comm. for Freedom of the Press , 489 U.S. 749, 756 (1989) (quoting 5 U.S.C. § 552(a)(4)(B)). A. Deliberative Process Privilege Commerce has withheld two records as covered by the deliberativ e process privilege recognized under Exemption 5: (1) a May 1, 2017 email in whicha Commerce official discusses draft congressional testimony of t he Director of the Census Bur eau John Thompson; and (2) the draft congressional testimony its elf, which was attached to the email. Decl. of Brian D. Lieberman (“Lieberman Decl.”) ¶ 23, ECF No. 14-1. CREW does no t dispute that these documents might normally fit with in the deliberative process pr ivilege, which “protects ‘documents reflecting advisory opinions, recommendations[,] and deliberations comprising part of a process by which governmental decisions and policies are f ormulated.’” Abtew v. U.S. Dep’t of Homeland Sec. , 808 F.3d 895, 898 (D.C. Cir. 2015) (quoting NLRB v. Sears, Roebuck & Co. , 421 U.S. 132, 150 (1975)). But, CREW argues, Commerce waived the privilege after Branstad forwarded the e mail to Gates, a third party outs ide of the government, and asked him to print the email and attach ment for Commerce Secretary Wi lbur Ross at the home of Tom Barrack, another non-governmental third party. Pl.’s Mem. at 5 . In particular, Branstad asked Gates, “Can we print this at Tom[ Barrack’s] house for [Secreta ry] Ross – almost there.” Pl.’s Ex. 1 at 00137, ECF No. 15-2. Gat es responded, “Yes. Will do now.” Id. And then he added, “Got them all for you.” Id. A “voluntary disclosure . . . to unne cessary third parties” wai ves the “deliberative process privilege” as to “the document o r information specifically rele ased.” In re Sealed Case , 121 F.3d 729, 741 (D.C. Cir. 1997). Commerce ar gues, however, that “[t] here was no intentional, voluntary disclosure to unnecessary third parties on the part o f [Commerce].” Def.’s Reply at 9, ECF No. 18. According to Commerc e, “there has been no disclosu re at all, since there is no4 evidence that Mr. Gates looked a t anything in the email beyond Mr. Branstad’s request at the top of the email that he print it out, along with the attachment.” Id. The Court disagrees. When analyzing waiver, the focus is notwhether the recipient review ed the disclosed information; instead, it is whether a disclos ure occurred in the first place

. See In re Sealed Case , 121 F.3d at 741. As a result, whether Gates reviewed or looked at the e mail and the draft testimony is irrelevant. Commerce next argues that “to the extent there was a disclosure ,” Branstad’s sending of the documents to Gates did not constitute a voluntary disclosur e to an unnecessary third party because “Gates became a necessary person to be the conduit to r eceive the information.” Def.’s Reply at 9. But even assuming that Gates was a necessary third party (i.e., that it was necessary to send Gates the email and test imony in order for those docume nts to be printed for Secretary Ross), the government has failed to demonstrate that it attempt ed to protect the i nformation after its disclosure. An agency must ta ke steps to protect privilege d material that is commensurate with the breadth of the pri vilege it seeks to claim. 1 Commerce has ushered no facts exhibiting that it took any action whatsoeve r to remedy Branstad’s disclos ure to Gates (who again was not a government employee at the time)— including investigating the di sclosure, contacting the individuals involved, or otherwise attempting to ensure that th e privileged materials were not

1 Some courts have looked to Feder al Rule of Evidence 502 for gu idance over waiver in the deliberative process privilege context, see, e.g. , Bayliss v. N.J. State Police , 622 F. App’x 182, 186 (3d Cir. 2015) (holding that the deliberative process privi lege was not waived “because the disclosure was inadvertent, a nd the State took reasonable steps in preventing and rectifying the disclosure” (citing Fed. R. E vid. 502(b)); however, as other ju dges have noted, the text of Rule 502 is expressly limited to the a ttorney-client privilege and w ork-product protection and should not be extended to the deliber ative process privilege, see, e.g. , Mannina v. District of Columbia , No. 15-cv-931, 2019 WL 1993780, at *8 (D.D.C. May 6, 2019); see also Fed. R. Evid. R. 502 advisory committee notes (subdiv. g ) (“The rule’s coverage is l imited to attorney-client privilege and work product. The operation of waiver by disclosure, as ap plied to other evidentiary privileges, remains a questi on of federal co mmon law.”).5 further disclosed. As the D.C. C ircuit has repeatedly held in the attorney-client privilege context, “[t]he courts will grant no great er protection to those who ass ert the privilege than their own precautions warrant.” In re Grand Jury , 475 F.3d 1299, 1305 (D.C. Cir. 2007) (citation omitted). 2 The present record reflects that Commerce took no precautions

. In the alternative, C ommerce argues that the disclosure by Bran stad was unauthorized, e.g., Lieberman Decl. ¶ 24, and t hus Commerce “should not be pr ejudiced by the actions of an employee engaged in an unauthoriz ed act, especially in light of the well established recognition of the importance of protecting the government’s decision-makin g process,” Def.’s Reply at 10–11 (citing NLRB , 421 U.S. at 148–51). While that may be true, Commerce has pr esented no evidence that it attempted t o remedy the unauthorized disclo sure once it was discovered. Indeed, even if Commerce discovere d Branstad’s disclosure only as a result of its search for records responsive to CREW’s FOIA request, Commerce apparently took no steps to rectify the unauthorized disclosure . Commerce has thus waived any claim to deliberative process privilege over the May 1, 2017 email and the attached draft congressional testimony. B. Confidential Business Information Commerce has also withheld under Ex emption 4 information that i t contends is protected confidential business information about Cir cinus. Lieberman De cl. ¶¶ 17–21. “Exemption 4 shields from mandatory disclosure ‘commercial or financial info rmation obtaine d from a person and privilege or confidential.’” Food Mktg Inst. v. Argus Leader Media , 139 S. Ct. 2356, 2362 (2019) (quoting 5 U.S.C. § 552(b)(4)). In Argus Leader , the Supreme Court identified “two

2 While the scope of potential waiv er is narrower in the deliber ative process context, the same general principles of privilege apply. See In re Sealed Case , 121 F.3d at 741 (discussing the differences between the scope of waiver in the attorney-client and deliberative process privilege contexts).6 conditions that might be required f or information communicated to another to be considered confidential” under Exemption 4, id. at 2363: the information is “[ 1] customarily and actually treated as private by its owner and [2] provided to the governm ent under an assurance of privacy.” Id. at 2366. The Court held that the first is a necessary conditi on but left unresolved whether the second is also necessary. Id. at 2363 (“[T]here’s no need to resolve that question in this case because the retailers before us clearly satisfy this condition too.”). Here, CREW concedes that the fi rst condition is me t and challen ges only whether Commerce meets the second. See Pl.’s Mem. at 8–11. CREW argues that Exemption 4 “requires a governmental assurance of confidentiality” because “the [Supreme] Court favorably cited several . . . cases that do s upport such a requirement, i ncluding two from this Circuit.” Id. at 9. Commerce contests whether such an assurance is required, but also argues that the assurance can be express or imp lied, and that here an implied a ssurance was made to Circinus. Def.’s Reply at 4–7. In the Court’s view, Commerce ha s established that its withhold ing was proper. Assuming that Exemption 4 can be s atisfied here only if Commerc e gave Circinus some assurance of confid ential treatment, Argus Leader , 139 S. Ct. at 2366, that assurance of confidentiality could have been e ither express or implied. In U.S. Department of Justice v. Landano , the Supreme Court interpreted the term “confidentiality” as u sed in Exemption 7(D), which in certain circumstances p rotects the iden tity of confide ntial sources used in law enforcement, and held that “the question is not whether the requested document is of the type that the agency usually treats as confidential, but whether the particular source spoke with an understanding that the communication would rem ain confidential.” 508 U.S. 1 65, 171–72 (1993) (emphasis altered). As a result, the Supreme Court note d, “[t]he precise question before7 us, then, is how the Government can meet its burden of showing that a source provided information on an implied assurance of confidentiality.” Id. at 172 (emphasis added). Implied assurances of confidentiality can therefore satisfy Exemption 7 (D), and the same idea should apply here. See Law v. Siegel , 571 U.S. 415, 422 (2014) (stating the “ ‘normal rule of statut ory construction’ that words repeat ed in different pa rts of the sam e statute generally have the same meaning.” (citations omitted)); Sorenson v. Secretary of the Treasury , 475 U.S. 851, 860 (1986) (“The normal rule of statutory c onstruction assume s that ‘ident ical words used in different parts of the same act are intended to ha ve the same meaning.’” (citat ion omitted)). R ecent guidance issued by the Department of Justi ce’s Office of Information Pol icy came to the same conclusion, explaining that, “in the contex t of Exemption 4, agencies can l ook to the context in which the information was provided to the gov ernment to det ermine if ther e was an implied assurance of confidentiality.” Office of Information Policy, Exemption 4 After the Su preme Court’s Ruling in Food Marking Institute v. Argus L eader Media, U.S. Dep’t of Jus tice, https://www.justice.gov/ oip/exemption-4-after-supreme-c ourts-ruling-food-marketing-inst itute-v-argus-leader-media (last updated Oct. 4, 2019). Here, Commerce states that “the information withheld consists o f confidential commercial information Circinus used in its comme rcial and busi ness activities to provide defense/military contracting and related services on an interna tional basis.” Def.’s Reply at 6 (citing Lieberman Decl. ¶ 19). I t further notes that “public d issemination of the information withheld would give insight to c ompetitors of Circinus’s pursui t of opportunities with a particular foreign government, its capabilities[, ] and the mann er in which it markets its capabilities.” Suppl. Decl. of B rian D. Lieberman ¶ 6, ECF No. 17-2. And in Commerce’s view, [i]f Circinus or any other business could not be assured that [Commerce] would treat as confidential information about its8 commercial plans and operations submitted to [Commerce] to support the business in its effort s, then [Commerce] would not be able to sustain the trust of the American business community, w hich is vital to [Commerce’s] mission to facilitate the growth of American commerce domestically and abroad. [Commerce] has been able to sustain this trust because businesses understand t hat [Commerce] carefully guards sensitive commercial information an d only uses it to further [Commerce] efforts to help these busine sses expand their reach. Id. ¶ 7. The context in which Circi nus provided Commerce informat ion—to grow its business in foreign markets—supports the notion that it di d so under an imp lied assurance of confidentiality. Without such an assurance, compa nies like Circinus would not se ek Commerce’s assistance because the information they provided could be revealed by simp ly submitting a FOIA request. The information thus could easil y fall into the hands of compet itors or other entities that sought it. CREW disagrees and argues that “ Commerce has failed to demonstr ate that the ‘specific circumstances’ here warrant fi nding an implied assurance of con fidentiality.” Pl.’s Reply at 7. In its view, Commerce has fail ed to justify the withholding bas ed on the specific factors laid out by the Office of Informa tion Policy guidance. E.g. id. (arguing that Comm erce did not provide details about its historical “treatment of similar information” and “its broader treatment of information related t o the program or ini tiative to which the i nformation relates” (quoting Office of Information Policy, Exemption 4 , supra )). But the guidance i ssued by the Office of Information Policy on Exemption 4 is just that—guidance. In th e Court’s view, Commerce has demonstrated that the document s were provided by Circinus under and implied assurance of confidentiality. CREW is correct, however, that Co mmerce must provide any inform ation to CREW that it withheld under Exemption 4 yet has elsewhere disclosed to CR EW or is otherwise available in the public domain. As CREW states , “[i]nsofar as the identity of the foreign government, as well9 as Commerce’s endorse ment of Circinus to pr ovide defense work f or that government, are already in the public domain, the identity cannot be deemed con fidential under Exemption 4.” Id. at 8. Beyond this specific info rmation, the record does not r eflect that other information that Commerce has withheld under Exem ption 4 has been disclosed else where, and CREW does not argue to the contrary. III. Conclusion For the reasons discussed above, C ommerce’s Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART and CREW’s Cross-Motion is GRANTED IN PART and DENIED IN PART . An Order consistent with this Memorandum Opinion will be issued contemporaneously.

DATE: August 14, 2020 CARL J. NICHOLS United States District Judge