American Small Business League v. Department of Defense

Background

This order reviewed whether the Department of Defense complied with two earlier summary judgment orders in the League’s Freedom of Information Act case. The League had requested records concerning Lockheed Martin’s and Sikorsky Aircraft’s compliance with small-business subcontracting plans, as well as communications between the government and Sikorsky during an earlier related FOIA case. The government withheld or redacted records under FOIA Exemptions 4 and 5. After winning partial relief in the earlier summary judgment proceedings, the League moved to compel additional production.

The court reviewed the parties’ briefing, conducted an in-camera review—meaning a private review by the judge—of five documents, and held a telephone hearing. The court stated that it would not reconsider the issues decided in the earlier orders; it would decide only whether the government had followed those orders.

FOIA Exemption 4

Exemption 4 protects certain privileged or confidential commercial or financial information obtained from a person. The earlier order had limited the exemption to information originating from the companies themselves. It had ruled that government assessments and evaluations—such as ratings, compliance findings, assessments of report accuracy, and recommendations—were government information and could not be withheld under that exemption.

The court found that some redactions in the compliance reports were proper. These included company spending data, subcontracting goals, expenditures, dates, small-business names, contract values, descriptions of company practices, and specific company activity. But the court found that other redactions were too broad because they concealed the government’s qualitative analysis of the companies’ data. The government had to disclose reasonably separable evaluations, conclusions, ratings, and recommendations while continuing to protect the companies’ underlying numerical and other company-originated information.

The court ordered the government to release updated versions of the compliance reports using the approach shown in the opinion’s examples. It declined to order the reports disclosed in their entirety because some company information remained properly protected.

FOIA Exemption 5 and joint-defense communications

Exemption 5 protects certain interagency or intra-agency memorandums and letters that would not be available to a party in litigation with the agency. The earlier order held that government communications with Sikorsky concerning a joint litigation strategy could qualify for protection under the common-interest doctrine, but only if a genuine joint-defense agreement existed when the communications occurred.

The court explained that a written agreement was not required. However, parallel conduct, general cooperation, or indications of a shared strategy were not enough. The government had to show an agreement through an offer and acceptance, or through objective conduct showing assent. The agreement also had to have a clear start and end date and a public-interest justification, and it had to precede the communications being withheld.

The government failed to establish that a joint-defense agreement began on November 17, 2014, or on January 21, 2015. The court therefore ordered disclosure of the communications from November 17 through 23, 2014, and from January 21, 2015, through March 30, 2017. The government did establish a legitimate agreement for the period from September 11 through October 11, 2017; communications from that period could remain redacted. It also established an agreement from November 15, 2017, through March 5, 2018, based on objective conduct including joint discovery planning and joint drafting of a summary judgment motion; communications from that period could also remain redacted.

Disposition

The motion to compel was GRANTED IN PART AND DENIED IN PART. The government was ordered to disclose updated redacted compliance reports consistent with the opinion and to disclose communications not actually covered by a legitimate joint-defense agreement. The order stated that these disclosures were to be completed by July 2.