244 F.3d 144 (D.C. Cir. 2001)
Center for Auto Safety, Appellantv.National Highway Traffic Safety Administration, et al., Appellees
No. 00-5128
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 6, 2001Decided March 30, 2001

Appeal from the United States District Court  for the District of Columbia (No. 99cv01759)
Allison M. Zieve argued the cause for appellant.  With her  on the briefs was Michael Tankersley.
Lisa S. Goldfluss, Assistant United States Attorney, argued the cause for appellee National Highway Traffic Safety  Administration.  With her on the brief were Wilma A. Lewis,  United States Attorney, R. Craig Lawrence, Assistant United  States Attorney, Lloyd S. Guerci, Assistant Chief Counsel for Litigation, National Highway Traffic Safety Administration,  and Enid Rubenstein, Attorney.
Erika Z. Jones argued the cause for appellees Volvo Cars  of North America, Inc., et al.  With her on the brief were  Adam C. Sloane, Karen L. Manos, Paul Jackson Rice,  Christopher H. Grigorian, Scott T. Kragie, and Andrew W.  Cohen.
Before:  Edwards, Chief Judge, Ginsburg and Tatel,  Circuit Judges.
Opinion for the Court filed by Chief Judge Edwards.
Edwards, Chief Judge:


1
In December 1997, the National  Highway Traffic Safety Administration ("NHTSA") issued an  Information Request to nine airbag manufacturers and importers seeking information on airbag systems used in years  1990-98.  Subsequently, the Center for Auto Safety ("Center") sought access to the information pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (1994). NHTSA released some of the information to the Center, but  asserted that the remaining submissions were protected from  disclosure under Exemption 4 of FOIA, 5 U.S.C. § 552(b)(4)  (1994), which excludes from disclosure "trade secrets and  commercial or financial information obtained from a person  and privileged or confidential."


2
The Center filed suit in District Court, asserting that the  disputed documents were subject to disclosure under FOIA,  because the submissions to the Government had been mandatory and disclosure of the information would not cause impairment to the Government or substantial competitive harm to  the respondents.  The Center also submitted evidence purporting to demonstrate that the intervenor-defendants had  customarily disclosed information of the same type at issue  here.


3
On summary judgment, the District Court found that,  because NHTSA's Information Request violated the Paperwork Reduction Act, 44 U.S.C. § 3501 (1994), NHTSA had no  authority to enforce the request, and as a result the submissions should be considered voluntary.  Center for Auto Safety v. Nat'l Highway Traffic Safety Admin., 93 F.Supp.2d 1, 16-17 (D.D.C. Feb. 28, 2000) ("Mem. Op.").  The  District Court found that some of the disputed documents  qualified as trade secrets, and therefore were protected as  such from disclosure.  Analyzing the remaining information  as voluntary submissions, the District Court evaluated the  submissions under the standards laid out in Critical Mass  Energy Project v. Nuclear Regulatory Commission, 975 F.2d  871 (D.C. Cir. 1992), and Niagara Mohawk Power Corp. v.  United States Department of Energy, 169 F.3d 16 (D.C. Cir.  1999).  Pursuant to Critical Mass, the District Court considered whether, in the past, the manufacturers and importers  had customarily disclosed the same type of information at  issue here, and determined that they had not.


4
We agree with the District Court that, because NHTSA  violated the Paperwork Reduction Act, the agency's Information Request was not enforceable.  Accordingly, because  NHTSA lacked legal authority to enforce its request for  information, the submissions cannot be considered mandatory  even if the parties reasonably believed the Information Requests were mandatory at the time of submission.  When an  agency obtains information from private entities by asserting  legal authority which it cannot enforce, private-party submissions are entitled to the same protection from disclosure as  voluntary submissions.


5
Although the District Court appropriately analyzed disclosure under the voluntary, rather than mandatory standard,  we find that the District Court misstated the appropriate  legal standard.  In addressing customary disclosure, the trial  court appeared to indicate that the Center was required to  prove that intervenor-defendants have previously released  identical information.  This is not a correct statement of the  law.  As a result, questions remain as to whether certain of  the disputed information must be released because it has  been customarily disclosed in the past.  Accordingly, we  remand the case to the District Court for further proceedings  consistent with the opinion.

I. Background

6
This controversy dates back to December 17, 1997, when  NHTSA issued an Information Request to nine airbag manufacturers and importers:  DaimlerChrysler Corporation, Ford  Motor Company, General Motors Corporation, American  Honda Motor Company, Mercedes-Benz USA, Nissan North  America, Toyota Technical Center USA, Volkswagen of  America, and Volvo Cars of North America.  The companies  were directed to respond by February 17, 1998, and NHTSA  subsequently posted some of the information on the agency's  website.  Mem. Op. at 2.  On January 19, 1999, the Center  submitted a FOIA request for all material the agency had  received but not yet made public.  On February 16, 1999,  NHTSA responded that Exemption 4 of FOIA barred disclosure of the disputed information.  On March 10, 1999, the  Center appealed NHTSA's decision.  Id. at 3.  On June 18,  1999, NHTSA granted the appeal in part, and then released  some, but not all, of the disputed information.  The Center  filed the underlying FOIA suit on June 29, 1999.  Subsequent  to the filing, NHTSA released additional information.  There  are now 33 items of information remaining in dispute.  Id. The items fall into six general categories, including airbag  deployment, airbag cover, airbag system components, seatbelts, crash sensors, and system performance.


7
The District Court determined that NHTSA did not have to  disclose any of the 33 items of information.  The District  Court found that 10 of the information items were protected  from disclosure as trade secrets, including information regarding the tear pattern of the airbag, the fold pattern of the  airbag, the number and location of the tethers, the type of  inflator and gas generant, the number of inflation stages, the  various tank tests used to measure inflator characteristics,  and the engineering specifications provided to suppliers for  development of algorithms.  Id. at 14-15.  The District Court  explained that the remaining 23 information items were exempt from disclosure because the information was voluntarily  submitted and constituted confidential commercial information that was not customarily disclosed.  The District Court  concluded that the information at issue had been disclosed in the past only when necessary, and always with a confidentiality agreement or protective order.  Id. at 17-18.


8
The Center argued that the information was customarily  disclosed, because most of the information could be ascertained through physical inspection.  The District Court rejected this claim;  the time, expense and risk of gathering the  relevant information are substantial, and simply selling a  vehicle to the public does not constitute revealing the detailed  physical characteristics of airbags.  Id. at 14-15.


9
The Center also argued that the manufacturers had previously disclosed the same type of information, and submitted  extensive, detailed evidence to the District Court of prior  instances of disclosure.  The District Court rejected this  claim as well, and concluded that, in each instance highlighted  by the Center, the evidence indicated only discrete disclosures to entities requiring the information, not customary  disclosure.  Furthermore, the information disclosed was general and merely approximated the information submitted to  NHTSA.  Id. at 18.  In addition, the District Court held that  the Center failed to show that the previously disclosed information was the same type of information that the Center now  seeks.  On this latter point, the District Court noted that the  Center "must" demonstrate that the information is "identical."  Id.  Based on this analysis, the District Court granted  NHTSA's and intervenor-defendants' motion for summary  judgment.  We review the District Court's grant of summary  judgment de novo.  Rockwell Int'l Corp. v. United States  Dep't of Justice, 235 F.3d 598, 602 (D.C. Cir. 2000).

II. Analysis
A. Voluntary or Mandatory Submissions

10
FOIA expresses a fundamental commitment to full agency  disclosure of government documents.  Public access, not secrecy, is the main purpose of FOIA.  United States Dep't of  Defense v. Fed. Lab. Relations Auth., 510 U.S. 487, 494 (1994)  (quoting Department of Air Force v. Rose, 425 U.S. 352, 361  (1976)).  Although FOIA is intended to expose agency action to public scrutiny, FOIA permits an agency to withhold  information if it falls within any one of nine categories of  exempted material.  McCutchen v. United States Dep't of  Health and Human Services, 30 F.3d 183, 184 (D.C. Cir.  1994).


11
NHTSA asserted that the information requested by the  Center was protected from disclosure under Exemption 4,  which excludes "trade secrets and commercial or financial  information obtained from a person and privileged or confidential."  5 U.S.C. § 552(b)(4).  This court has on a number  of occasions addressed the standards governing determinations of whether information qualifies under Exemption 4. The judgment of the court sitting en banc in Critical Mass is  our most significant statement on the subject.


12
In Critical Mass, the court held that material may be  withheld as "financial or commercial" information under Exemption 4 of FOIA under two circumstances.  First, "financial or commercial information provided to the Government  on a voluntary basis is 'confidential' for the purpose of  Exemption 4 if it is of a kind that would customarily not be  released to the public by the person from whom it was  obtained."  975 F.2d at 879 (emphasis added).  Second, financial or commercial information provided to the Government  on a mandatory basis is "confidential" if "disclosure would be  likely either '(1) to impair the Government's ability to obtain  necessary information in the future;  or (2) to cause substantial harm to the competitive position of the person from whom  the information was obtained.' "  Id. at 878.  "[W]hen dealing  with a FOIA request for information the provider is required  to supply, the governmental impact inquiry will focus on the  possible effect of disclosure on its quality."  Id.


13
The decision in Critical Mass explains that, with respect  to information voluntarily submitted, the party opposing disclosure bears the burden of proving the information is confidential.  Id. at 879.  In addition, in assessing customary  disclosure, the court will consider how the particular party  customarily treats the information, not how the industry as  a whole treats the information.  Id. at 872, 878-80.  A party can voluntarily make protected disclosures of information, and as long as the disclosures are not made to the  general public, such disclosures do not constitute customary  disclosures.  Id. at 874, 880.


14
The court further noted that disclosure under FOIA balances the public's interest in maintaining "an informed citizenry, vital to the functioning of a democratic society," with  the Government's interest in access to data in making "intelligent well informed decisions," and private interests in protection from the "competitive disadvantages" that would result  from disclosure.  Id. at 872-73 (citations omitted).  When the  Government obtains information as part of a mandatory  submission, the Government's access to the information normally is not seriously threatened by disclosure;  the private  interest is the principal factor tending against disclosure, and  the harm to the private interest must be significant to prevent public access to information.  Id. at 878.  However,  when the Government receives information voluntarily, it has  a strong interest in ensuring continued access, and therefore  both the Government and private interests weigh against  overly broad disclosure.  Id.


15
With this framework in mind, we agree with the District  Court that the submissions in this case should not be treated  as mandatory.  At the same time, we note that this case does  not involve a typical voluntary information submission--it  involves a mistaken submission.  NHTSA's request for information appeared mandatory on its face.  The Information  Request stated that "NHTSA hereby requires" the recipient  to submit the information and explained that the recipient,  "must respond to the enclosed Information Request."  Information Request, reprinted in Joint Appendix ("J.A.") 323. Furthermore, the Information Request explained, "[f]ailure to  respond promptly and fully to this Information Request could  subject [recipient] to civil penalties pursuant to 49 U.S.C.  § 30165 or lead to an action for injunctive relief pursuant to  49 U.S.C. § 30163."  Id.  The language of the Information  Request clearly communicates to the recipient that submission of material was mandatory.


16
Nevertheless, NHTSA's request was not enforceable as a  result of the Paperwork Reduction Act and, therefore, we find  that the submissions cannot be considered mandatory.  Under the Paperwork Reduction Act, if NHTSA seeks to collect  information from 10 or more persons or entities, NHTSA  must obtain prior approval from OMB.  44 U.S.C.  § 3502(3)(A)(i) (Supp. IV 1998).  If NHTSA fails to obtain  prior approval from OMB, the request for information can be  ignored without penalty.  44 U.S.C. § 3512(a) (Supp. IV  1998).  OMB regulations specifically explain that "10 or  more" includes any "independent entities to which the initial  addressee may reasonably be expected to transmit the collection of information."  5 C.F.R. § 1320.3(c)(4) (2000).


17
On the record at hand, it is clear that NHTSA expected  that the Information Request would be submitted to 10 or  more entities.  For example, the District Court pointed out  that Volkswagen of America, as an importer, had to submit  the Information Request to Volkswagen AG and Audi AG in  order to respond to the questions, and all nine manufacturers  who received the Information Request had to collect information from their suppliers.  Mem. Op. at 36.  This finding was  also supported by the declaration of the executive director of  NHTSA, L. Robert Shelton, who explained that NHTSA  expected the recipients to send the request to their foreign  parents, subsidiaries and affiliates.  Declaration of L. Robert  Shelton, reprinted in J.A. 463-65.


18
Although NHTSA expected that the Information Request  would be submitted to 10 or more entities, NHTSA did not  get prior approval from OMB.  As a result, NHTSA had no  authority to enforce the information request.  Had the intervenor-defendants ignored the agency's request for information, NHTSA could not have compelled them to respond to  the request.  Because NHTSA could not enforce its Information Request, the material submitted in response to the  Information Request cannot be considered mandatory.


19
In determining that the submission was not mandatory, we  hold that actual legal authority, rather than parties' beliefs or  intentions, governs judicial assessments of the character of


20
submissions.  We reject the argument that, in assessing  submissions for the purpose of Exemption 4 analysis, we  should look to subjective factors, such as whether the respondents believed that the Information Request was voluntary,  or whether the agency, at the time it issued the request for  information, considered the request to be mandatory.  Focusing on parties' intentions, for purposes of analyzing submissions under Exemption 4, would cause the court to engage in  spurious inquiries into the mind.  On the other hand, linking  enforceability and mandatory submissions creates an objective test;  regardless of what the parties thought or intended,  if an agency has no authority to enforce an information  request, submissions are not mandatory.


21
In distinguishing between voluntary and mandatory submissions, the court in Critical Mass emphasized that the  Supreme Court has favored "the development of categorical  rules whenever a particular set of facts will lead to a generally predictable application of FOIA."  Critical Mass, 975 F.2d  at 879 (discussing United States Dep't of Justice v. Reporters  Comm. for Freedom of the Press, 489 U.S. 749, 779 (1989)). We also noted the Court's suggestion of a "practical approach" in interpreting FOIA, and defended the voluntary  versus mandatory distinction as an objective test.  Critical  Mass, 975 F.2d at 879 (quoting John Doe Agency v. John Doe  Corp., 493 U.S. 146, 157 (1989)).  The distinction between  voluntary and mandatory submissions that was delineated in  Critical Mass was rooted in the importance of establishing  clear tests in interpreting FOIA, and we continue in that  tradition today.


22
We cannot accept the Center's argument that if recipients  do not assert that a submission is voluntary before submitting information in response to an agency's request, they  have implicitly waived their entitlement to subsequently assert that the submission was not mandatory.  Critical Mass  emphasizes our concern with an agency's "continuing ability  to secure ... data on a cooperative basis."  Critical Mass,  975 F.2d at 879.  Although NHTSA in this case purported  to seek data pursuant to its statutory mandate, the response  by the manufacturers was certainly "cooperative" in the sense that they readily supplied the data without making  legal objections.  Indeed, at least two of the manufacturers  acquiesced while maintaining that their responses were voluntary.  Surely there is an important policy interest in minimizing resistance by a manufacturer to an agency's request  for information;  insisting that a respondent identify and air  legal objections in response to any request in order to preserve its rights would tend to frustrate the "cooperati[on]" that Critical Mass values.  Beyond, that it would needlessly  waste resources to require that respondents identify legal  defects that have no practical bearing unless and until a  FOIA dispute materializes.


23
The Center also argues that intervenor-defendants have  waived their entitlement to assert a claim under the Paperwork Reduction Act because claims under the Paperwork  Reduction Act cannot be raised once the information is submitted.  Permitting a party to raise a Paperwork Reduction  Act claim after having submitted information to an agency  does not support the purpose of the Paperwork Reduction  Act;  after information is submitted, the Paperwork Reduction  Act's goal of reducing paperwork by mandating OMB review  is moot.  We disagree.


24
The Paperwork Reduction Act directly addresses when a  claim can be raised.  Although it does not expressly refer to  claims arising after submission of the information, the statute  provides that "[t]he protection provided by this section may  be raised in the form of a complete defense, bar, or otherwise  at any time during the agency administrative process or  judicial action applicable thereto."  44 U.S.C. § 3512(b)  (Supp. IV 1998).  In Saco River Cellular, Inc. v. FCC, 133  F.3d 25, 31 (D.C. Cir. 1998), we explained that, by explicitly  allowing parties to raise a Paperwork Reduction Act claim at  any time during ongoing proceedings, the Paperwork Reduction Act "prevents an agency or court from refusing to  consider a [Paperwork Reduction Act] argument on the  ground that it is untimely."


25
Saco River is not directly on point, as it involved a Paperwork Reduction Act defense that was raised when the party had not submitted the information.  However, the expansive  language of the Paperwork Reduction Act itself, along with  this court's explication in Saco River, militates against the  Center's position and supports our finding that a Paperwork  Reduction Act claim can be raised after information has been  submitted.  In addition, the Center's argument ignores the  deterrence effect that permitting parties to raise their Paperwork Reduction Act claim can have on future agency actions. Although the paperwork may already have been produced in  response to the particular Information Request, permitting  parties to raise their Paperwork Reduction Act claim, even  after submitting the information, further encourages agencies  to comply prospectively with the Paperwork Reduction Act.

B. Customary Disclosure

26
If this were an ordinary FOIA case involving the invocation  of Exemption 4 with respect to information that had been  voluntarily submitted to the Government, we would consider  whether the information at issue has been customarily disclosed.  Here, however, we are confronted with information  that was submitted under false pretenses.  That is, the  Government claimed that it had the authority to compel the  submission of the information when in fact no such authority  existed.  As noted above, applications of Exemption 4 attempt  to balance private interests in protection from disclosure,  governmental interests in access to data, and public interest  in transparent governmental decision-making.  In this case,  the agency essentially "flashed its badge" to gain entrance to  a private sphere when it had no legal authority to do so, and  this misrepresentation must tip the balance of interests in  favor of the private parties.  Given this unusual situation-i.e., submissions made under false pretenses--we cannot treat  the submissions as "mandatory."  As a result, we apply the  same standard we use in evaluating voluntary submissions. Thus, treating the information as having been submitted  voluntarily, we turn to the question of whether the information is customarily disclosed.


27
As a preliminary matter, we note that the District Court  found that 10 information items involved protected trade secrets.  We have defined a trade secret as a "secret, commercially valuable plan, formula, process, or device that is  used for the making, preparing, compounding, or processing  of trade commodities and that can be said to be the end  product of either innovation or substantial effort."  Pub.  Citizen Health Research Group v. FDA, 704 F.2d 1280, 1288  (D.C. Cir. 1983).  On appeal, the Center argues that the  information at issue addressed the physical and performance  characteristics of airbags, not how airbags are manufactured,  and, therefore, the information cannot qualify as trade secrets.  Intervenor-defendants defend the trade secrets ruling. NHTSA does not defend the trade secrets ruling and instead  urges the court to find that the submissions were voluntary  and involved commercial information not customarily disclosed to the public.  We agree with the Center that the  information at issue does not qualify as trade secrets, but also  agree with NHTSA that the information may nonetheless  qualify for protection under Critical Mass.  Our Decision in  Public Citizen narrowly cabins trade secrets to information  relating to the "productive process" itself, see id. at 1288;  yet  these 10 categories of information relate only to the end  product--what features an airbag has and how it performs-rather than to the production process, how an airbag is made. To be sure, the manufacturers persuasively argue that the  information is valuable to competitors and not readily obtained.  That, however, goes to whether the information is  customarily disclosed.  Therefore, the question to be decided  here is whether the information is independently protected  under Critical Mass.  We therefore turn to that issue.


28
The Center asserts that with respect to 18 of the 33  disputed items of information, at least one of the companies  has customarily disclosed the same type of information in the  past.  The Center also claims that, because the information at  issue relates to products that are sold on the public market,  most of the information can be ascertained by examining an  airbag, performing a routine test, or watching a publicly  accessible videotape.


29
We reject the Center's argument that the mere selling of a  product on the open market can constitute evidence of customary disclosure.  The District Court correctly determined  that the fact that intervenor-defendants sold cars with airbags to the public does not constitute evidence of customary disclosure.  The District Court explained that dismantling  airbags is "dangerous, time-consuming and expensive," and  the information at issue in this case cannot be discovered  simply by looking inside a car or taking apart a steering  column or dashboard.  Mem. Op. at 32.  We agree--indeed,  to find otherwise would so dilute the meaning of customary  disclosure, as to render the requirement meaningless.  The  Information Requests specified that respondents must submit  information for each vehicle, make, and model manufactured  or imported into the United States between 1990 and 1998. Information Request, reprinted in J.A. 328.  The fact that  airbags can be bought on the open market and inspected  certainly does not establish that information describing the  physical characteristics of every vehicle produced over many  years is customarily disclosed.


30
Although we agree that the mere sale of a product to the  public does not constitute customary disclosure, there is one  aspect of the District Court's opinion that is flawed.  In  Niagara Mohawk, this court held that information must be  disclosed if identical information is in the public domain.  "[I]f  identical information is truly public, then enforcement of an  exemption cannot fulfill its purposes."  Niagara Mohawk, 169  F.3d at 19.  The "identical information" basis for disclosure  is, however, entirely distinct from the "customary disclosure"  standard.  Under the former test, the party favoring disclosure has the burden of demonstrating that the information  sought is identical to information already publicly available; under the latter test, the burden is on the party opposing  disclosure to prove that the information is of a kind that  would customarily not be released to the public.  Critical  Mass, 975 F.3d at 879.  In this case, the District Court  appeared to hold that the Center could obtain release of the  information only if information of that kind is customarily  disclosed and the identical information has been disclosed. Mem. Op. at 39.  This is not a correct statement of the law.


31
Despite this legal error, the District Court correctly rejected much of the Center's purported evidence of customary  disclosure.  The Center contends that customary disclosure is  shown by the fact that many of the submissions to NHTSA had nothing more than detail to distinguish them from materials previously disclosed by the respondents.  In other  words, the Center argues that a difference in level of detail is  inadequate to establish a difference in type of information. This argument is unpersuasive.  In truth, substantial differences in level of detail can produce a difference in type of  information.  Thus, for example, a one time disclosure of  information regarding a single model in a particular year will  not likely create a genuine issue of material fact regarding  the customary disclosure of multi-year, multi-model information.


32
The fallacy of the Center's claim is manifest even in the  evidence that the Center itself highlights.  The Center cites a  declaration by Tamio Arakawa as evidence that Toyota customarily disclosed information which Center now seeks.  Arakawa explained,


33
The information contained in [Center for Auto Safety's exhibit] is general information for a generic 1993-94 Toyota vehicle.  Unlike the information contained in Toyota's response to NHTSA's information request, [Center for Auto Safety's exhibit] does not contain specific data for particular Toyota vehicles or for model years 1990-98.  For example, the information described in [plaintiff's exhibit] regarding sensor and deployment thresholds is limited to head-on collisions.  Deployment thresholds are not determined by only head-on collision data.  The information that Toyota is seeking to protect from disclosure in this litigation include threshold values for various types of collisions for every 1990-98 Toyota Vehicle.


34
Arakawa Supp.  8, reprinted in J.A. 574-75.  Contrary to  the Center's assumptions, it was eminently reasonable for the  District Court to conclude that the differences described by  Arakawa show that the difference between the disclosed  information and the submitted information is a difference in  type.  The Center pointed to information Toyota disclosed  regarding a generic 1993-94 Toyota vehicle;  the information  at issue covers data for every 1990-98 Toyota vehicle.  The  former is not evidence of customary disclosure of the latter.


35
In sum, most of the District Court's findings on customary  disclosure are supported by the record and consistent with  applicable law.  However, as a result of the District Court's  misapplication of the Niagara Mohawk legal standard, some  questions still remain regarding whether the intervenordefendants customarily disclosed certain information at issue. For example, the Center submitted evidence that "GM publicly disclosed a chart listing, by vehicle model for MY 19931996, the driver and passenger airbag material and weave." Appendix A, reprinted in J.A. 337.  At oral argument, counsel for intervenor-defendants was unable to explain why this  multi-year, multi-model information should not constitute evidence of customary disclosure.  Following argument counsel  submitted a letter to the court pointing to the supplemental  declaration of C. Thomas Terry in response.  Terry's supplemental declaration asserted that GM's release of information  did not reflect a policy of customary disclosure of the type of  information GM provided in response to the Information  Request.  According to Terry, the comments were an "isolated release of information" and differed in "specificity, measurement criteria, and other material respects."  Supplemental Declaration of C. Thomas Terry, reprinted in J.A. 505, p 4,  507, p 14.  Aside from these general claims, Terry presented  nothing concrete to support this position.  Furthermore, Terry noted that "[a]ny information in the comments that was  identical to specific responses to the Information Requests  has been disclosed."  Id. at 505, p 4.  As we have explained,  however, the information need not have been identical to  constitute customary disclosure.


36
Applying the appropriate legal standard on remand, the  District Court must determine whether Terry's declaration,  and any other relevant responses by intervenor-defendants,  are adequate to defeat any claim of customary disclosure. The same inquiry must be made with respect to the 10  information items the District Court held were trade secrets  and any other information item that is questionable due to the  District Court's error in applying Niagara Mohawk.  On remand, the District Court need not retry the entire case, for,  as we have noted, most of the findings at issue easily survive  challenge.  It will be up to the Center to identify any other  disputed material, like the aforecited material discussed in  the Terry Declaration, that may have been analyzed pursuant  to an incorrect legal standard by virtue of the District Court's  flawed application of Niagara Mohawk.

III. Conclusion

37
Based on the foregoing analysis, the case is remanded to  the District Court for further proceedings consistent with this  opinion.

