Gov’t Accountability Project v. U.S. Dep’t of Treasury, No. 20-2138, 2025 WL 721734 (D.D.C. Mar. 6, 2025) (Chutkan, J.)

Gov’t Accountability Project v. U.S. Dep’t of Treasury, No. 20-2138, 2025 WL 721734 (D.D.C. Mar. 6, 2025) (Chutkan, J.)

Re:  Request for Office of Foreign Asset Controls (“OFAC”) application and license for Delta Crescent Petroleum

Disposition:  Denying defendant’s motion for summary judgment; denying plaintiff’s cross-motion for summary judgment

• Exemption 4:  The court finds that “[f]or the most part, Treasury’s declaration contains the kind of testimony ‘routinely considered when evaluating an agency’s invocation of FOIA exemptions.’”  “[Defendant] obtained the information regarding OFAC’s search for records, . . . Treasury’s practices and procedures for communicating with third-party submitters, . . . and the types of records redacted or withheld, . . . in the course of his official duties or from review of agency records . . . .”  “Such statements may appropriately b[e] considered.” “The problem is that those statements cannot carry Treasury’s burden of proving that the withheld and redacted information is confidential.”  “For that, Defendant largely relies on Delta Crescents’ statements and submissions.” “For instance, in determining whether the documents contained privileged and/or confidential information, Defendant ‘considered the arguments made [by Delta Crescent] pursuant to the submitter notice process,’ . . . and made redactions ‘in keeping with [Delta Crescent’s] explicit representation that . . . such commercial information [was] confidential and not ordinarily disclosed to the public[]’ . . . .”  “Defendant’s ‘second-hand,’ ‘summary accounts’ of Delta Crescent’s statements constitute inadmissible hearsay, which the court will not consider.”  “Without the hearsay, Treasury fails to justify withholding the information.”  “To succeed, it must demonstrate that the particular party – Delta Crescent – customarily and actually treats the particular information subject to the FOIA request as private.”  “But Treasury provides no information about Delta Crescent’s particular practices.”  “Its general statements regarding typical OFAC license applications, applicants, and/or licenses are unhelpful.”  “That other recipients ‘may’ keep the information contained in license applications and licenses confidential does not reveal whether Delta Crescent actually kept ‘license # SY-2019-3631301’ information confidential.”  “Even considering solely the existence of Delta Crescent’s objections, and not the truth of any statements contained therein, that ‘says nothing about whether [Delta Crescent] customarily and actually treats the information as private.’”  “As to other indications of confidentiality, although Treasury appropriately assessed whether OFAC made any express or implied assurances of confidentiality and conducted independent open-source research to determine whether the information is publicly available, it did not disclose the results of those efforts.” “Treasury’s sparse evidence is particularly problematic because GAP argues that some withheld details are publicly available.”  “Treasury redacted the expiration date of Delta Crescent’s license and Delta Crescent’s ‘contractual activities and transactions with third party suppliers’ pursuant to Exemption 4.”
  
  “[Plaintiff] claims that Delta Crescent ‘routinely gives this type of information to the media,’ pointing to articles that it alleges contain the license expiration date, quote from the license, and include details about Delta Crescent’s relationships with third parties.”  “The court cannot rule for [plaintiff], however, because some evidence in the record supports Treasury.”  “Certain documents contain ‘confidential markings on the documents themselves’ and language about implied assurances of confidentiality.”