Am. Small Bus. League v. Dep't of Def. & Dep't of Justice
| Decision Date | 08 March 2019 |
| Docket Number | No. C 18-01979 WHA,C 18-01979 WHA |
| Citation | 372 F.Supp.3d 1018 |
| Parties | AMERICAN SMALL BUSINESS LEAGUE, Plaintiff, v. DEPARTMENT OF DEFENSE and Department of Justice, Defendants. |
| Court | U.S. District Court — Northern District of California |
Qwalyne Elise Lawson, Aaron Robert Field, Karl Olson, Cannata, O'Toole, Fickes & Olson LLP, San Francisco, CA, for Plaintiff.
Ellen London, U.S. Attorney's Office, San Francisco, CA, for Defendants.
ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
In this FOIA action, both sides move for summary judgment. For the reasons stated below, both motions are GRANTED IN PART and DENIED IN PART .
Plaintiff American Small Business League is a non-profit organization that promotes the interests of small businesses. To that end, it focuses public attention on emerging issues for small businesses, reviews federal and state government policies and procedures to determine the potential impact on small businesses, and monitors federal contracts that are awarded to large corporations rather than to small businesses (Dkt. No. 1 ¶ 4).
The Small Business Act mandates that the federal government encourage government contractors to subcontract to "small disadvantaged businesses" ("SDB"). Under regulations subsequently enacted to implement SDB goals, federal government contractors must submit a subcontracting plan as part of the bidding process for a potential contract award. And, defendant Department of Defense monitors contractor compliance with SDB goals (Buffler Decl. ¶¶ 4–9).
The Act normally requires prime contractors to submit "Individual Subcontracting Plans" for each contract to show how government contracts and subcontracts are awarded to small businesses. But in 1990, Congress passed the Test Program, thereby allowing certain large defense contractors to instead submit a single annual "Comprehensive Subcontracting Plan" for an entire plant, division, or company to identify all subcontract amounts awarded to small businesses on government contracts. Test Program participants must submit their Comprehensive Subcontracting Plan to the DOD each year for review and approval (id. ¶¶ 5, 8).
This action is related to a prior FOIA case, American Small Business League v. Department of Defense , Case No. C 14-02166 WHA, 2014 WL 6662427 (N.D.Cal. Nov. 23, 2014) (" ASBL I "). There, in August 2013, the same plaintiff requested Sikorsky's 2013 Comprehensive Small Business Subcontracting Plan from the DOD pursuant to FOIA. The agency initially denied plaintiff's request on the basis that the requested document contained confidential commercial information and thus fell under FOIA's exemption under Section 552(b)(4). In March 2018, after years of litigation and a trip to our court of appeals, the government released the document over Sikorsky's objections (with the exception of limited redactions for private personal information under Section 552(b)(6) ).
As relevant to the instant motions, plaintiff now seeks GE Aviation's 2014 Comprehensive Subcontracting Plan. It also seeks all documents transmitted during ASBL I between the DOD or defendant Department of Justice and Lockheed Martin Corporation (including Sikorsky Aircraft Corporation, a subsidiary of Lockheed) regarding the 2013 FOIA request, ASBL, Lloyd Chapman, the Comprehensive Subcontracting Plan Test Program ("CSPTP"), and the Mentor-Protégé program (Dkt. No. 47 at 7).
Since plaintiff filed the instant action in March 2018, the government has produced responsive documents (along with Vaughn indexes), subject to redactions (Dkt. No. 29 ¶ 2). The government declared those redacted materials exempt under 5 U.S.C. §§ 552(b)(3)–(6).
The parties now cross-move for summary judgment on the government's redactions. The government moves to confirm the determinations of exemption (Dkt. No. 44). Plaintiff challenges the government's assertion of Exemptions 3–5 as follows (Dkt. No. 47 at 8; Olson Decl., Exh. D):1
Plaintiff also challenges the adequacy of the government's searches. This order follows full briefing and oral argument.
FOIA's purpose is to let us see what our government has been up to by "provid[ing] public access to official information ‘shielded unnecessarily’ from public view and establish[ing] a ‘judicially enforceable public right to secure such information from possibly unwilling official hands.’ " Lahr v. Nat'l Transp. Safety Bd. , 569 F.3d 964, 973 (9th Cir. 2009) (quoting Dep't of Air Force v. Rose , 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) ). FOIA thus "mandates a policy of broad disclosure of government documents." Church of Scientology of California v. U.S. Dep't of Army , 611 F.2d 738, 741 (9th Cir. 1979), overruled on other grounds by Animal Legal Def. Fund v. U.S. Food & Drug Admin. , 836 F.3d 987 (9th Cir. 2016).
"When a request is made, an agency may withhold a document, or portions thereof, only if the material at issue falls within one of the nine statutory exemptions found in [ Section] 552(b)." Maricopa Audubon Soc. v. U.S. Forest Serv. , 108 F.3d 1082, 1085 (9th Cir. 1997). "These exemptions are explicitly exclusive and must be narrowly construed in light of FOIA's dominant objective of disclosure, not secrecy." Ibid. (citations and quotations omitted). "FOIA's strong presumption in favor of disclosure places the burden on the government to show that an exemption properly applies to the records it seeks to withhold." Hamdan v. U.S. Dep't of Justice , 797 F.3d 759, 772 (9th Cir. 2015).
Here, the questions presented are whether the government (1) made adequate searches, and (2) has properly determined that the information at issue is exempt under Sections 552(b)(3), (4), and/or (5). This order addresses each issue in turn.
The parties dispute whether the government's searches regarding documents transmitted between the DOJ, DOD, and Lockheed were reasonable and adequate (see Dkt. Nos. 29 ¶ 5). Under FOIA, an agency responding to a request must "demonstrate that it has conducted a search reasonably calculated to uncover all relevant documents." Lahr , 569 F.3d at 986 (quoting Zemansky v. EPA , 767 F.2d 569, 571 (9th Cir. 1985) ). "This showing may be made by ‘reasonably detailed, nonconclusory affidavits submitted in good faith.’ " Ibid. "In evaluating the sufficiency of an agency's search, ‘the issue to be resolved is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate.’ " Id. at 987 (quoting Zemansky v. EPA , 767 F.2d 569, 571 (9th Cir. 1985) ). The government argues it conducted a reasonable search for relevant documents. This order agrees.
Here, the DOD and DOJ submitted declarations attesting to reasonable searches made pursuant to the parties' stipulated search plan for the relevant documents (see Dkt. No. 29 ¶ 5). Specifically, Mark Herrington (the DOD's associate deputy general counsel who oversees the DOD's FOIA litigation) explains how he and Janice Buffler (then associate director of the DOD Office of Small Business Programs) searched their files for documents transmitted between the DOD and Lockheed or Sikorsky for relevant documents. He further explains how the DOD searched the files of Tatia Bellamy-Vaughn and Lux Vazquez of the Defense Contract Management Agency, and Terry Sutherland — all pursuant to the stipulated agreement (Herrington Decl. ¶¶ 4–6). Moreover, each of the attorneys at the DOJ involved in the ASBL I litigation also submitted declarations explaining how they searched their emails for responsive documents (Friday Decl. ¶ 6; Kravitz Decl. ¶ 8; London Decl. ¶ 12; Simmons Decl. ¶ 8).
Plaintiff counters that after notifying the government of an "unexplained gap" in the FOIA response, the government produced two more responsive documents not previously identified (Dkt. No. 47 at 10). The government explained that it had missed those documents due to an error "in the de-duplicating process" and an accidental deletion by one of the government's attorneys (Olson Decl., Exh. Y). The government also volunteered to conduct additional searches "as quickly as [it] can" to check for any other potential errors made during the de-duplicating process. Plaintiff further asserts that when it flagged an additional defect in the government's production, the government produced another document "inadvertently marked as a duplicate" one day before plaintiff's brief was due (but just two days after plaintiff raised the issue) (ibid. ). The government again volunteered to run another search. Plaintiff now complains of other potential gaps in the government's FOIA response and wonders aloud whether there are other documents the government's searches potentially missed (Dkt. No. 47 at 10–11). As such, it requests that the government (both the DOJ and DOD) be ordered to redo the entire search, specifically for "deleted" responsive records.
"[T]he failure to produce or identify a few isolated documents cannot by itself prove the searches inadequate." Lahr , 569 F.3d at 988. As our court of appeals has repeatedly stated, plaintiff was Hamdan v. U.S. Dep't of Justice , 797 F.3d 759, 772 (9th Cir. 2015). Here, the government readily acknowledged certain missing documents once notified by plaintiff and promptly took steps to address the errors, including voluntarily redoing its search for documents from custodians located within the United States Attorney's Office and offering ways of building in more time for plaintiff to respond if...
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Am. Small Bus. League v. Dep't of Def.
...motion is GRANTED IN PART AND DENIED IN PART.STATEMENT Two prior orders recite the facts here. American Small Business League v. United States Dep't of Def., 372 F. Supp. 3d 1018 (N.D. Cal. 2019) (Dkt. No. 58) ("March Order"); 411 F. Supp. 3d 824 (N.D. Cal. 2019) (Dkt. No. 153) ("November O......