UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

THE ASSOCIATED PRESS, )
Plaimiff, §
)
v. )
)
) Criminal No. 15~cv-345 (RJL)
U.S. DEPARTMENT OF STATE, )
Defendant, and §
) F I L E D
BAE SYSTEMS PLC,
) Nov 01 2016
BAE sYsTEMs, INC., ) mm U 3 m m
Defendant-Intervenors. § C°""S for the olstr|ctof Colvl|b|a
MEMORANDUM OPINION

 

(November_/, 2016) [Dkt. ## 85, 86, 91]

Currently pending before this Court are the parties’ cross-motions for partial
summary judgment on a sample of 38 documents withheld in part or in Whole under
asserted Freedom of Information Act exemptions See Def.’s Mot for Partial Summ. J.
[Dkt. # 86]; Def.-Intervenors’ Mot. for Partial Summ. J. [Dkt. # 85]; Pl’s Cross-Mot. for
Partial Summ. J. [Dkt. # 91.] Upon consideration of the motions, record, and relevant
law, and after reviewing unredacted copies of the documents in camera, the Court
upholds the Withholdings, GRANTS defendant’s Motion for Partial Summary Judgment,
GRANTS defendant-intervenors’ Joint Motion for Partial Summary Judgment, and

DENIES plaintiffs Cross-Motion for Partial Summary Judgment.

BACKGROUND

Plaintiff Associated Press (“AP”) filed this action under the Freedom of
Information Act, 5 U.S.C. § 552 (“FOIA”), seeking, in part, to compel the United States
Department of State (“the State Department”) to produce documents regarding the State
Department’s 2011 decision to enter into a negotiated civil settlement with BAE Systems
plc (collectively with BAE Systems, Inc., “BAES”). Although the State Department has
already searched for and produced records responsive to AP’s request, it has withheld
documents in part, or in whole, on the grounds that the withheld information is subject to
FOIA’s statutory exemptions AP challenged the State Department’s withholdings, and
the parties agreed to litigate the challenged withholdings through motions for partial

summary judgment that address a sample of 38 withheld or redacted documents
STANDARD OF REVIEW

The Court will grant summary judgment “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). In a FOIA action, the agency and aligned intervenors are
“entitled to summary judgment if no material facts are in dispute and if it demonstrates
‘that each document that falls within the class requested either has been produced . . . or

933

is wholly exempt from the [FOIA’s] inspection requirements Stua’ents Agaz'nst
Genocide v. Dep't ofState, 257 F.3d 828, 833 (D.C. Cir. 2001) (quoting Goland v. CIA,

607 F.2d 339, 352 (D.C. Cir. 1978) (alteration in original)).

ANALYSIS

Due to the time-sensitive nature of AP’s requests, and in light of the fact that the
Court has reviewed the disputed documents in camera, I do not have the luxury of
drafting a lengthy opinion that addresses every withholding in granular detail. A

summary describing my reasoning will have to do.

As an initial matter, 1 agree with the State Department’s legal arguments for
withholding information pursuant to FOIA Exemptions 3, 5, and 6, and I find that the
State Department appropriately applied those exemptions to the sample documents
Furthermore, l find that State produced all reasonably segregable information contained
in the sample documents that was not subject to a statutory exemption and that no further

non-exempt material is subject to release in the sample documents

The parties disagree about the appropriate standard governing the Exemption 4
withholdings, and specifically dispute whether the information BAES submitted to the
State Department was provided voluntarily or involuntarily. I find that BAES was not
required to submit the documents to the State Department, that the State Departmth
lacked the authority to compel their production, and that the submitted documents are
therefore subject to the “voluntary” standard set forth in Critical Mass Energy Project v.
NRC, 975 F.2d 871 (D.C. Cir. 1992). Upon reviewing the motions, the Vaughn index,
and the documents themselves I find that the withheld information meets that standard,
since it “is of a kind that would customarily not be released to the public” by BAES, and

is therefore appropriately withheld. Id. at 879. See also M/A-Com lnfo. Systems v. U.S.

Dep’l of Health and Human Servs., 656 F. Supp. 691, 692 (D.D.C. 1986) (upholding
Exemption 4 withholdings for commercial information produced “in confidence” to

agency during the course of debarment settlement negotiations).

Nevertheless, even if the documents at issue were provided to State involuntarily,
the withheld information would still meet the higher standard set forth in Nat’l Parks
Conservalion Assoc. v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974), as disclosure of the
withheld documents at issue would either hinder the government’s ability to obtain
similar information in future settlement negotiations or would likely cause substantial
competitive harm to BAES. Therefore, l find that the State Department properly

withheld information pursuant to FOlA Exemption 4.
CONCLUSION

Forth the reasons set forth above, the withheld information in the sample set of 38
documents is exempt from production pursuant to FOIA’s statutory exemptions, and that
State and BAES are entitled to summary judgment as to the sample set of 38 documents
Therefore, defendant’s and defendant-intervenors’ motions for partial summary judgment
are GRANTED, and plaintiffs motion for partial summary judgment is DENIED. An

Order consistent with this decision accompanies this Memorandum Opinion.

RICHARD J. L O
United States Dis ' Judge

