Besson v. Dep't of Com., No. 18-02527, 2020 WL 4500894 (D.D.C. Aug. 5, 2020) (Mehta, J.)

Besson v. Dep't of Com., No. 18-02527, 2020 WL 4500894 (D.D.C. Aug. 5, 2020) (Mehta, J.)

Re:  Request for Cooperative Research and Development Agreement ("CRADA") between National Institute of Standards and Technology and private telecommunications company

Disposition:  Granting in part and denying in part defendant's renewed motion for summary judgment; granting in part and denying in part plaintiff's renewed cross-motion for summary judgment

• Exemption 4:  The court notes that "there is no dispute that the withheld information was 'obtained from a person,' and that it is not a trade secret or privileged."  "Thus, the two questions before the court are:  (1) whether the information is commercial or financial; and (2), if so, whether it is confidential."  The court first finds that "Defendant . . . has failed to establish that the names of [the private telecommunications company] employees appearing in the CRADA qualify as 'commercial' information for purposes of Exemption 4."  The court explains that "it is not clear what commercial consequences [the company] risks from disclosure of its employees' names."  "[The company] says that disclosure would reveal information about this particular team, but it does not adequately explain how this information, if revealed, would 'provide third parties with insight into [the company's] business strategy' or its technical capabilities."  "All other information withheld under Exemption 4 qualifies as commercial or financial information" and "Plaintiff does not contend otherwise."  This information "include[s] 'the listing of the specialized technical equipment [the company] provided,' as well as [the company's] monetary contribution.'"  Second, the court finds that "[i]n this case, Defendant satisfies the . . . standard for confidentiality, at least, with respect to its withholdings from the Collaborator Contribution and Collaborator's Funding Contribution sections."  "The withheld information in those sections 'is both customarily and actually treated as private' by [the private telecommunications company]."  "It 'describes monetary and non-monetary contributions' made to the project by [the company] and 'reflects sensitive commercial and financial data of [the company],' which the company 'does not publicly disclose' and 'has kept this category of information private.'"  "[Defendant] confirms that [the company] has kept the information in question 'closely held.'"  "The court reaches a different conclusion, however, as to the Statement of Work section."  The court finds that it appears that "some portion of the Statement of Work is contained 'in public documents.'"  "That information therefore is arguably not 'actually [ ] treated as private' . . . ."  "Accordingly, the court will deny Defendant's motion for summary judgment with respect to the Statement of Work, but afford the agency the opportunity to show that the entirety of the Statement of Work is subject to Exemption 4 protection, even though some of that Statement may be public."  "As to the remaining portions of the CRADA that [the private telecommunications company] has in fact kept closely held, [the court finds that] context shows that the information was supplied under an implied assurance of confidentiality."
   
• Exemption 6:  "On the present record, the court cannot accept Defendant's withholding of [the private telecommunications company's] employee names under Exemption 6."  The court finds that "Defendant has not established even a de minimis personal privacy interest in the names of [the company's] employees appearing in the CRADA."  "[The company] itself disclaims any substantial personal privacy interest in the name of the person who signed the CRADA on [the company's] behalf."  "As for the employees staffed on the project, Defendant offers only the conclusory assertion that the disclosure of their names could subject them to 'unwanted and unnecessary personal contact and harassment from third parties.'"  "But Defendant offers no reason to believe that disclosure likely will lead to such an 'unwarranted' invasion of privacy."  Additionally, the court finds that "[t]here is nothing particularly controversial, political, or newsworthy about the CRADA or its subject matter, or the fact of being employed with [the company] – at least nothing brought to the court's attention."  "Defendant thus has failed to demonstrate that disclosure of [the company's] employee names would compromise a substantial privacy interest, and so Exemption 6 does not apply at the threshold."  "The court therefore need not balance the public interest."