                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                            JAN 06 2017
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
AMERICAN SMALL BUSINESS                          No.   15-15120
LEAGUE,
                                                 D.C. No. 3:14-cv-02166-WHA
              Plaintiff-Appellee,

 v.                                              MEMORANDUM*

DEPARTMENT OF DEFENSE,

              Defendant-Appellant,

 and

SIKORSKY AIRCRAFT
CORPORATION,

              Intervenor-Defendant.



AMERICAN SMALL BUSINESS                          No.   15-15121
LEAGUE,
                                                 D.C. No. 3:14-cv-02166-WHA
              Plaintiff-Appellee,

 v.

DEPARTMENT OF DEFENSE,


       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
              Defendant,

 and

SIKORSKY AIRCRAFT
CORPORATION,

              Intervenor-Defendant-
              Appellant.


                    Appeal from the United States District Court
                      for the Northern District of California
                     William Alsup, District Judge, Presiding

                     Argued and Submitted December 14, 2016
                             San Francisco, California

Before: KOZINSKI, BYBEE, and N.R. SMITH, Circuit Judges.

       The U.S. Department of Defense (the Department) and Sikorsky Aircraft

Corporation (Sikorsky) appeal the district court’s order requiring the production of

Sikorsky’s entire Comprehensive Small Business Subcontracting Plan under the

Freedom of Information Act (FOIA). We review the ruling below de novo, Animal

Legal Def. Fund v. U.S. Food & Drug Admin., 836 F.3d 987, 988 (9th Cir. 2016)

(en banc) (per curiam), and conclude that the district court erred in holding that

none of the information currently redacted from the Plan is protected from

disclosure under Exemption 4 or Exemption 6 of FOIA.



                                           2
      1.     Exemption 4 assures companies doing business with the government

that their “trade secrets and commercial or financial information [that is] privileged

or confidential” will not be revealed to third parties. 5 U.S.C. § 552(b)(4).

Commercial information is considered “confidential” if “there is (1) actual

competition in the relevant market, and (2) a likelihood of substantial competitive

injury if the information were released.” Lion Raisins v. U.S. Dep’t of Agric., 354

F.3d 1072, 1079 (9th Cir. 2004) (citing G.C. Micro Corp. v. Def. Logistics Agency,

33 F.3d 1109, 1113 (9th Cir. 1994)), overruled on other grounds by Animal Legal

Def. Fund, 836 F.3d at 989. The government need not show, however, that

disclosure would cause “actual competitive harm.” Id. (quoting G.C. Micro Corp.,

33 F.3d at 1113).

      The Department at least created a genuine issue of fact as to whether most of

its redactions qualified for Exemption 4. The Department submitted a declaration

from Sikorsky’s director of supply management (1) identifying the entities with

which Sikorsky competes for government defense contracts and (2) averring that

those entities could use the redacted information to gain a significant competitive

advantage over Sikorsky. Nothing more is required to gain protection from

disclosure under Exemption 4, and the district court erred in ruling otherwise. See

G.C. Micro Corp., 33 F.3d at 1111 (indicating that information similar to the


                                           3
redacted information here would be subject to Exemption 4); Bowen v. U.S. Food

& Drug Admin., 925 F.2d 1225, 1227–28 (9th Cir. 1991) (holding that an affidavit

with the following description of sensitive information was sufficiently specific to

trigger Exemption 4: “trade secret information regarding the manufacturing

formulas and processes, as well as quality control and internal security measures,

of private business entities”).

      2.     The Department also created a genuine issue of fact as to whether the

remaining redactions, which encompass Sikorsky employees’ business contact

information and signatures, were proper under Exemption 6. See 5 U.S.C.

§ 552(b)(6). Although the employees’ privacy interests in that information are

small, they are not trivial because culprits could use the information for such

purposes as harassment or forgery. See Elec. Frontier Found. v. Office of the Dir.

of Nat’l Intelligence, 639 F.3d 876, 887–88 (9th Cir. 2010). We can identify no

countervailing public interest sufficient to justify disclosure in these circumstances,

especially since the Department already disclosed the names of all employees

mentioned in the Plan. See id.

      REVERSED.




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