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Ryan v. United States Department of Justice

2026-09-11

Authorities cited

Opinion

majority opinion

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

NAOISE CONNOLLY RYAN, et al.,

Plaintiffs,

Civil Action No. 23 - 3815 (SLS)

v. Judge Sparkle L. Sooknanan

DEPARTMENT OF JUSTICE,

Defendant.

MEMORANDUM OPINION

In October 2018, a Boeing 737 MAX aircraft crashed shortly after takeoff in Indonesia.

Less than six months later, another Boeing 737 MAX aircraft crashed in Ethiopia. Tragically, none

of the 346 people onboard the planes survived. After investigating the crashes, the Department of

Justice (DOJ) entered a deferred prosecution agreement with Boeing, which many of the victims’

families opposed. In 2022, 15 family representatives of the crash victims and their counsel

submitted a Freedom of Information Act (FOIA) request to DOJ’s Criminal Division. They

requested a range of records related to the aircraft crashes and subsequent investigations. Having

received no response for over a year, the Plaintiffs sued to compel DOJ to produce the requested

records. To efficiently move the case forward, the Parties agreed that DOJ would process a random

sample of a subset of the potentially responsive documents. DOJ withheld most of the documents

under FOIA Exemptions 3, 4, 6, 7(A), and 7(C). The Parties now cross-move for summary

judgment regarding the applicability of those exemptions. The Court grants in part and denies in

part both motions.

BACKGROUND

A. Statutory Background

“FOIA ‘implements a general philosophy of full agency disclosure.’” Informed Consent

Action Network (ICAN) v. NIH, No. 23-cv-926, 2026 WL 585104, at *1 (D.D.C. Mar. 3, 2026)

(quoting DOJ v. Reps. Comm. for Freedom of the Press, 489 U.S. 749, 754 (1989) (cleaned up)).

The statute “requires every federal agency, upon request, to make ‘promptly available to any

person’ any ‘records’ so long as the request ‘reasonably describes such records.’” Assassination

Archives & Rsch. Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003) (quoting 5 U.S.C. § 552(a)(3)).

“Agencies must construe FOIA requests liberally and can only withhold or redact documents if

the information requested ‘falls within one of nine statutory exemptions.’” ICAN, 2026 WL

585104, at *1 (quoting People for the Ethical Treatment of Animals (PETA) v. NIH, 745 F.3d 535,

540 (D.C. Cir. 2014)); see 5 U.S.C. § 552(b)(1)–(9). “These exemptions demonstrate that the

public’s right to information is ‘not absolute and that disclosure of certain information may harm

legitimate governmental or private interests.’” Am. Ctr. for L. & Just. v. FBI, No. 22-cv-3711,

2026 WL 1585366, at *1 (D.D.C. June 3, 2026) (quoting Martin v. DOJ, 488 F.3d 446, 453 (D.C.

Cir. 2007) (quotations omitted). The agency bears the burden of establishing that an exemption

applies and ordinarily “must disclose all reasonably segregable, nonexempt portions of the

requested record(s).” PETA, 745 F.3d at 540 (cleaned up).

B. Factual and Procedural Background

The Court draws the facts from the Defendant’s Statement of Material Facts and the

underlying materials referenced in that statement. See Def.’s Statement of Undisputed Facts

(DSOF), ECF No. 35–1. The Court assumes the facts in that statement to be true unless they have

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been specifically disputed, and it assumes the truth of other undisputed statements in the record.

See Fed. R. Civ. P. 56(e)(2); see also LCvR 7(h)(1).1

In October 2018, a Boeing 737 MAX crashed in Indonesia, killing 189 people. Compl. ¶ 2,

ECF No. 1. Five months later, another Boeing 737 MAX crashed in Ethiopia, killing 157 people.

Id. DOJ then criminally investigated Boeing and reached a deferred prosecution agreement with

the company in January 2021. See United States v. Boeing Co., 655 F. Supp. 3d 519, 524–26 (N.D.

Tex. 2023) (explaining the case’s timeline). Three years later, the government revoked the Boeing

deferred prosecution agreement after breaches by Boeing, before executing a new non-prosecution

agreement. See United States v. Boeing Co., No. 4:21-CR-5, 2025 WL 3095958, at *1 (N.D. Tex.

Nov. 6, 2025) (providing further context); Herrington Decl. ¶ 31–34, ECF No. 35-2 (describing

the terms of the agreement).

The Plaintiffs in this case are 15 family representatives of the crash victims and their

counsel. Compl. ¶ 11–26. In 2022, the Plaintiffs submitted a FOIA request to DOJ’s Criminal

Division requesting a range of records related to the aircraft crashes and subsequent investigations.

ECF No. 1-1. The Plaintiffs filed this case in December 2023, alleging that DOJ had failed to

produce documents responsive to their request. Compl. ¶¶ 71–87.

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Here, neither party filed a separate statement in opposing the respective motions. See Def.’s Resp. and Cross-Mot. Summ. J. (Cross-Mot.), ECF No. 35; Pls.’ Reply, ECF No. 38. In part, this is because the Parties dispute whether the Plaintiffs’ self-titled “Statement of Facts” included in their Motion for Summary Judgment, Pls.’ Mot. Summ. J., ECF No. 34, satisfies the requirement that “[e]ach motion for summary judgment shall be accompanied by a statement of material facts as to which the moving party contends there is no genuine issue[.]” LCvR 7(h)(1). Regardless, Local Rule 7(h) provides that “the Court may assume that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion.” LCvR 7(h)(1). Accordingly, the Court will reference the Defendant’s Statement of Undisputed Facts. Further, when the Plaintiffs’ factual assertions are not covered in the Defendant’s Statement but supported by record evidence, the Court will accept them as uncontroverted. See Hinson ex rel. N.H. v. Merritt Educ. Ctr., 579 F. Supp. 2d 89, 92 n.2 (D.D.C. 2008).

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The Plaintiffs eventually narrowed their request. See Joint Status Report ¶ 4, ECF No. 24.

Specifically, the Plaintiffs now seek records related to conversations between Boeing and DOJ

about the criminal investigation, subsequent negotiations between DOJ and Boeing, and the

Boeing deferred prosecution agreement that the Plaintiffs opposed. See ECF No. 24; Compl.

¶¶ 55–65. In February 2025, the Parties agreed that the Department would process an agreed-upon

random sample of 232 total responsive records. DSOF ¶ 5–6. Of the 232 total records, 46 records

were responsive to the narrowed scope of the Plaintiffs’ request. Herrington Decl. ¶ 8, ECF No. 35-2. Of that subset, the Department released 150 pages to the Plaintiffs in part. DSOF ¶ 10. The

Department withheld 36 records (comprising 1,597 pages) in full. DSOF ¶ 11.

The current dispute focuses on the applicability of certain FOIA exemptions to those

withholdings.2 Of the pages released in part, DOJ invoked Exemptions 6 and 7(C) to redact privacy

information, DSOF ¶ 17–19, and Exemption 4 to redact confidential commercial information,

DSOF ¶ 14–16. In addition to its partial withholdings, DOJ invoked multiple overlapping

exemptions to withhold 36 records in full. First, the Department withheld 30 records in full

pursuant to Exemption 3, alleging that they consist of grand jury materials. DSOF ¶ 12. They also

alleged that these documents were exempt, either in full or in part, under Exemptions 4 (for

containing confidential commercial information) and 7(A) (for containing information compiled

2

Because of a disagreement over the Vaughn indices, the Parties’ accounting of the withheld records varies. Throughout its cross-motion, DOJ repeatedly faults the Plaintiffs for attaching a “draft” Vaughn index to their motion for summary judgment, alleging that it provided this draft to the Plaintiffs only in the context of settlement negotiations. E.g., Cross-Mot. 4–6. Therefore, DOJ attached its own “final” Vaughn index to its cross-motion, which covers only records withheld in full. ECF 35–2. Given the history of this case, DOJ’s complaints have no force and border on bad faith. At status conferences before this Court, DOJ agreed to provide a draft Vaughn index precisely so that the Plaintiffs could move for summary judgment. Indeed, the Parties agreed that the Plaintiffs would move first, and it would have been impossible to do so without a Vaughn index. In any case, for the purpose of the pending motions, the Court discerns only minimal differences between the “draft” and “final” Vaughn indices. ECF 35-2.

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for law enforcement purposes). DSOF ¶ 20. Next, DOJ withheld the remaining six documents in

full, also pursuant to Exemptions 4 and 7(A). DSOF ¶ 14; Herrington Decl. ¶ 9. Additionally, DOJ

withheld one document (Document 4) in full pursuant to Exemptions 6 and 7(C) because it

contained the personnel file of a Boeing employee.3 DSOF ¶ 17. Finally, DOJ asserted that all 36

of the records withheld in full had underlying redactions under Exemptions 6 and 7(C) because

they contained employees’ personal identifying information. DSOF ¶ 18.

In May 2026, the Plaintiffs moved for summary judgment challenging DOJ’s invocation

of FOIA Exemptions 3, 4, 6, 7(A), and 7(C). Pls.’ Mot. Summ. J., ECF No. 34. The Department

then cross-moved for summary judgment. Def.’s Resp. and Cross-Mot. Summ. J., (Cross-Mot.),

ECF No. 35. Both motions are now ripe for review. See Pls.’ Reply, ECF No. 38.4

LEGAL STANDARD

Federal Rule of Civil Procedure 56 requires a court to “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 suit, an agency is entitled to

summary judgment if it establishes that “no material facts are in dispute” and that all information

subject to a request has either “been produced or is wholly exempt from the Act’s inspection

requirements.” Students Against Genocide v. Dep’t of State, 257 F.3d 828, 833 (D.C. Cir. 2001)

(quoting Goland v. CIA, 607 F.3d 339, 352 (D.C. Cir. 1978)). Typically, an “agency demonstrates

the applicability of a FOIA exemption by providing affidavits regarding the claimed exemptions.”

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The “draft” Vaughn index also indicates that Document 11 was withheld in full pursuant to Exemptions 6 and 7(C). ECF 34–6. However, as DOJ explains, Document 11 is duplicative of Document 4 and was therefore removed from the “final” Vaughn index. Cross-Mot. 6 n.3; Herrington Decl. ¶ 8. The Plaintiffs do not seem to challenge this account. See Reply, ECF No. 38. 4

Even though it cross-moved for summary judgment when opposing the Plaintiffs’ motion, DOJ opted not to file a reply brief responding to the Plaintiffs’ last brief.

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Shapiro v. DOJ, 893 F.3d 796, 799 (D.C. Cir. 2018). “If an agency’s affidavit describes the

justifications for withholding the information with specific detail, demonstrates that the

information withheld logically falls within the claimed exemption, and is not contradicted by

contrary evidence in the record or by evidence of the agency’s bad faith, then summary judgment

is warranted on the basis of the affidavit alone.” ACLU v. U.S. Dep’t of Def., 628 F.3d 612, 619

(D.C. Cir. 2011). “[A]n agency’s justification for invoking a FOIA exemption is sufficient if it

appears ‘logical’ or ‘plausible.’” Wolf v. CIA, 473 F.3d 370, 374–75 (D.C. Cir. 2007) (quoting

Gardels v. CIA, 689 F.2d 1100, 1105 (D.C. Cir. 1982)).

DISCUSSION

The Parties contest the applicability of FOIA Exemptions 3, 4, 6, 7(A), and 7(C) to an

overlapping array of records. The Court considers the application of each exemption in turn.5

A. Exemption 3

DOJ invoked Exemption 3 to withhold three categories of documents: (1) grand jury

subpoenas, (2) responses to those subpoenas, and (3) other records intended to demonstrate

Boeing’s legal compliance. Cross-Mot. 5–6; Herrington Decl. ¶ 15. The Plaintiffs argue that DOJ

has not met its burden of demonstrating that these records are exempt. Reply 4–6. The Court finds

that some—but not all—of these records were properly withheld.

Exemption 3 permits the government to withhold records that are “specifically exempted

from disclosure by statute.” 5 U.S.C. § 552(b)(3). Here, DOJ points to Federal Rule of Criminal

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DOJ contends that “the adequacy of [its] search is not at issue in this litigation and judgment on that issue should be granted to [DOJ].” Cross-Mot. 3. This argument entirely ignores the procedural posture of this case. This case is almost three years old. The Parties spent years discussing search parameters and narrowing—ultimately agreeing that DOJ would pull and process a random sample of responsive records and provide a Vaughn index so that the Parties could preliminarily litigate exemptions to move this case forward. The instant summary judgment proceedings are solely about that.

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Procedure 6(e) as the relevant statute, which prohibits disclosure of certain “matters occurring

before [a] grand jury.” Fed. R. Crim. P. 6(e). The D.C. Circuit has confirmed that Rule 6(e) “counts

as a statute for the purposes of Exemption 3[.]” Sussman v. U.S. Marshals Serv., 494 F.3d 1106,

1113 (D.C. Cir. 2007). As a result, certain grand jury materials may not be disclosed even in

response to an otherwise valid FOIA request. See Fund for Const. Gov’t v. Nat’l Archives &

Records Serv., 656 F.2d 856, 867–68 (D.C. Cir. 1981). That said, Rule 6(e) does not “draw ‘a veil

of secrecy . . . over all matters occurring in the world that happen to be investigated by a grand

jury.’” Senate of P.R. v. DOJ, 823 F.2d 574, 582 (D.C. Cir. 1987) (quoting SEC v. Dresser Indus.

Inc., 628 F.2d 1368, 1382 (D.C. Cir. 1980) (en banc)). Put differently, “[t]here is no per se rule

against disclosure of any and all information which has reached the grand jury chambers[.]” Senate

of P.R., 823 F.2d at 582. Rather, the question is whether disclosure would “tend to reveal some

secret aspect of the grand jury’s investigation, such matters as the identities of witnesses or jurors,

the substance of testimony, the strategy or direction of the investigation, the deliberations or

questions of jurors, and the like.” Id.

In this case, DOJ invoked Rule 6(e) to exempt “grand jury subpoenas for documents or

testimony or responses to those subpoenas, including the production of records by Boeing.”

Herrington Decl. ¶ 15. They also withheld other records, such as presentations by Boeing “to

demonstrate compliance with federal law to prevent indictment.” Id. DOJ argues that this

information would “shed light upon how the grand jury went about its work” and “reveal

information concerning strategies behind the grand jury investigation.” Cross-Mot. 5 (quotations

omitted). Therefore, the Court considers the application of Rule 6(e) to three categories of records:

(1) grand jury subpoenas, (2) responses to those subpoenas, and (3) other records intended to

demonstrate legal compliance. See Lopez v. DOJ, 393 F.3d 1345, 1349 (D.C. Cir. 2005)

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(encouraging a categorical approach to the Exemption 3 analysis and explaining that courts “need

not evaluate the revelatory characteristics of every individual document in each case before it”).

First, DOJ withheld grand jury subpoenas for documents or testimony. The Court agrees

that DOJ properly withheld these records. The D.C. Circuit has categorically stated that “[a]ll

grand jury subpoenas (be they ad testificandum or duces tecum) . . . fall within FOIA’s third

exemption.” Id. at 1350. The Plaintiffs do not seriously contest this. Reply 4–6 (focusing on

whether DOJ has demonstrated that all the withheld material would undermine grand jury secrecy).

Second, DOJ claims Exemption 3 coverage over certain responses to grand jury subpoenas.

But on this record, DOJ may not withhold those documents. As the D.C. Circuit has explained,

“[t]he mere fact the documents were subpoenaed fails to justify withholding under Rule 6(e).”

Labow v. DOJ, 831 F.3d 523, 530 (D.C. Cir. 2016). This is because “[t]he disclosure of information

‘coincidentally before the grand jury [which can] be revealed in such a manner that its revelation

would not elucidate the inner workings of the grand jury’ is not prohibited.” Senate of P.R., 823

F.2d at 582 (quoting Fund for Const. Gov’t, 656 F.2d at 870). Here, the government offers only

that disclosure “could reveal information concerning strategies behind the grand jury

investigation.” Herrington Decl. ¶ 16. But without more, this conclusory statement is insufficient.

See Labow, 831 F.3d at 530 (criticizing a similarly conclusory statement in a government

declaration); Senate of P.R., 823 F.2d at 584 (requiring “some affirmative demonstration of a

nexus between disclosure and revelation of a protected aspect of the grand jury’s investigation”).

In fact, DOJ admits that it never undertook a line-by-line review of these documents, marking

them as exempt simply because they were “collected and/or utilized for purposes of a grand jury

proceeding.” Herrington Decl. ¶ 38. The Department may not broadly withhold documents solely

because they were somehow related to a grand jury proceeding. See Bagwell v. DOJ, No. 15-cv8

00531, 2015 WL 9272836, at *4 (D.D.C. Dec. 18, 2015) (explaining that unless the government

makes an affirmative demonstration, it “cannot rely on Exemption (b)(3) to shield from disclosure

everything it considers to be in some way ‘related’ to the grand jury’s proceedings”).

To be clear, responses to grand jury subpoenas may properly be withheld held under

Exemption 3. For example, responses could reveal the contents of the subpoena itself, see Lopez,

393 F.3d at 1350, or include protected information such as the “identities of witnesses or jurors,”

Dresser, 628 F.2d at 1382. But DOJ entirely fails to “suppl[y] the information a court must have

in order to intelligently make that judgment.” Senate of P.R., 823 F.2d at 584. And almost three

years into this case, when processing only a small sample of documents to enable the Court to

narrow the disputes between the Parties, DOJ’s decision to proceed in this manner is disappointing.

Third, DOJ seeks to broadly shield other records, including Boeing’s presentations and

communications intended to demonstrate its compliance with federal law or the Boeing deferred

prosecution agreement. Once again, DOJ has not shown how these documents would tend to

“elucidate the inner workings of the grand jury[.]” Senate of P.R., 823 F.2d at 582. As the D.C.

Circuit has emphasized in a similar case, it is “necessary to differentiate between statements by a

prosecutor’s office with respect to its own investigation, and statements by a prosecutor’s office

with respect to a grand jury’s investigation[.]” In re Sealed Case No. 99-3091, 192 F.3d 995, 1002

(D.C. Cir. 1999); see also In re Grand Jury Subpoena, 920 F.2d 235, 242 (4th Cir. 1990)

(“[I]nformation produced by criminal investigations paralleling grand jury investigations does not

constitute matters ‘occurring before the grand jury’ if the parallel investigation was truly

independent of the grand jury proceedings.”). Boeing’s compliance with federal law and the

deferred prosecution agreement may have implications for DOJ’s independent investigation, but

DOJ never attempts to show why it would “tend to reveal some secret aspect of the grand jury’s

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investigation[.]” Senate of P.R., 823 F.2d at 582. Indeed, this is particularly unlikely given that the

Plaintiffs seek this information “for its intrinsic value in furtherance of a lawful investigation,”

instead of “to learn what took place before the grand jury.” Boehm v. FBI, 983 F. Supp. 2d 154,

159 (D.D.C. 2013) (cleaned up).

In sum, DOJ properly invoked Exemption 3 in combination with Rule 6(e) to withhold

grand jury subpoenas for documents or testimony. However, it falls well short of its burden to

show that the responses to those subpoenas or Boeing’s other compliance communications were

appropriately withheld. Accordingly, the Court will grant in part and deny in part both motions as

to the records withheld under Exemption 3.6

B. Exemption 4

Next, the Department invoked Exemption 4 to withhold (1) information provided by

Boeing during the criminal investigation related to the company’s internal operations, compliance

programs, and business strategy, and (2) information of three other business entities that Boeing

had provided to DOJ as proposed administrators for the compensation fund. Herrington Decl.

¶ 17–18. The Plaintiffs argue that DOJ has not demonstrated that the withheld information is

commercial or confidential, or that reasonably foreseeable harm would result from disclosure. See

Mot. Summ. J. 13–14; Reply 6–8. The Court largely agrees with the Plaintiffs.

Exemption 4 shields from disclosure “trade secrets and commercial or financial

information obtained from a person and privileged or confidential.” 5 U.S.C. § 552(b)(4). For nontrade-secret information, an agency must show that the information is “(1) commercial or financial,

(2) obtained from a person, and (3) privileged or confidential” to withhold it. Pub. Citizen Health

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For records withheld under Exemption 3, DOJ need not prove that harm would foreseeably result from disclosure. See 5 U.S.C. § 552(a)(8)(B).

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Rsch. Grp. v. FDA, 704 F.2d 1280, 1290 (D.C. Cir. 1983). And the agency may only withhold the

information if it “reasonably foresees that disclosure would harm an interest protected by”

Exemption 4. See 5 U.S.C. § 552(a)(8)(A)(i)(I). No one disputes that the withheld records were

obtained from a person, so the Court focuses on the first and third requirements.

1. Commercial or Financial

The D.C. Circuit has “consistently held that the terms ‘commercial’ and ‘financial’ in the

exemption should be given their ordinary meanings.” Pub. Citizen, 704 F.2d at 1290. Therefore,

“information is commercial if it pertains to the exchange of goods or services or the making of a

profit.” Citizens for Resp. & Ethics in Washington (CREW) v. DOJ, 58 F.4th 1255, 1263 (D.C.

Cir. 2023). This often includes information that “actually reveal[s] basic commercial operations,

such as sales statistics, profits and losses, and inventories[.]” Pub. Citizen, 704 F.2d at 1290.

However, Exemption 4 does not protect information that “only tenuously or indirectly concerns

the exchange of goods or services or the making of a profit.” CREW, 58 F.4th at 1265.

Here, DOJ argues that Boeing had a commercial interest in information related to “the

company’s internal operations, compliance programs, and business strategy.” Cross-Mot. 8. For

example, some of the compliance presentations that Boeing submitted to DOJ “contained

information regarding the company’s business activities and resources.” Id. As DOJ’s declarant

explained, “Boeing has a commercial interest in the information related to their business activities,

as establishing and maintaining these activities requires a substantial dedication of company

resources.” Herrington Decl. ¶ 18.

Though bordering on conclusory, the Court finds this explanation sufficient. Business

strategies, activities, and resources are within the ambit of “commercial” or “financial” activities

as those terms are commonly understood. See Pub. Citizen, 704 F.2d at 1290. And courts in this

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District have made clear that “information about the way the companies implement their

compliance programs” can be “sufficiently ‘instrumental’ to [] companies’ operations to qualify

as commercial.’” 100Reporters LLC v. DOJ, 248 F. Supp. 3d 115, 137 (D.D.C. 2017) (cleaned

up). In addition, the three proposed third-party administrators likely had a similar commercial

interest in their own credentials and information.

The Plaintiffs make two arguments in response. First, they argue that after extensive

investigations and reporting, the commercial details in the records have likely already been

publicized. Mot. Summ. J. 13; Reply 7. On this point, the D.C. Circuit has indeed held “that the

government cannot rely on an otherwise valid exemption claim to justify withholding information

that has been ‘officially acknowledged’ or is in the ‘public domain.’” Davis v. DOJ, 968 F.2d

1276, 1279 (D.C. Cir. 1992) (quoting Afshar v. Dep’t of State, 702 F.2d 1125, 1130–34 (D.C. Cir.

1983)). However, “a plaintiff asserting a claim of prior disclosure must bear the initial burden of

pointing to specific information in the public domain that appears to duplicate that being withheld.”

Afshar, 702 F.2d at 1130 (emphasis added). The Plaintiffs here point to a handful of news articles

detailing the “financial strategies and technical details producing the plane crashes.” Mot. Summ.

J. 13; Reply 7. But beyond this speculation, they offer no specific information as to where in the

public domain the withheld information—such as Boeing’s compliance presentations—may be

found. Therefore, their argument under the public domain doctrine falls short.

Second, the Plaintiffs point out that “the information is likely to be commercially obsolete”

because Boeing already began rewriting its software and updating the designs of its aircraft in

response to the crashes. Mot. Summ. J. 14. However, DOJ withheld documents relating to a

broader set of commercial activities, such as Boeing’s “internal operations, compliance programs,

and business strategy[.]” Herrington Decl. ¶ 18. Furthermore, just because a company makes

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changes to a product over time does not mean that older information is necessarily obsolete. In

other words, beyond speculation about the outdated commercial value of the withheld records, the

Plaintiffs cannot point to sufficient “contrary evidence in the record” or “evidence of agency bad

faith” that is necessary to upset the claims in the Department’s affidavit. Mil. Audit Project v.

Casey, 656 F.2d 724, 738 (D.C. Cir. 1981).

2. Confidential

The Supreme Court established the test for confidentiality under Exemption 4 in Food

Mktg. Inst. v. Argus Leader Media, 588 U.S. 427, 433 (2019). The Court considered two conditions

that might be required. Id. One condition which “has to be” met is that the information “is

customarily kept private, or at least closely held, by the person imparting it.” Id. at 434. The Court

also considered a second condition—whether “the party receiving it provides some assurance that

it will remain secret”—but found “no need to resolve” whether this latter condition was necessary

in that case. Id. at 434–35; see also CREW, 58 F.4th at 1269 (explaining that the D.C. Circuit has

also not determined whether the second condition is mandatory). So “the current law of the D.C.

Circuit . . . is that information is confidential under Exemption 4 if it is of a kind that would

customarily not be released to the public by the person or entity from whom it was obtained.”

Gandhi v. Ctrs. for Medicare & Medicaid Servs., 665 F. Supp. 3d 49, 55 (D.D.C. 2023) (cleaned

up). That said, courts in this District have considered assurances of secrecy in evaluating the

customs and practice of the submitting party. See, e.g., Humane Soc’y Int’l v. U.S. Fish & Wildlife

Serv., No. 16-cv-720, 2021 WL 1197726, at *5 & n.4 (D.D.C. Mar. 29, 2021) (collecting cases for

the proposition that “even after [Argus Leader], courts in this District have continued to recognize

that the circumstances under which a company submits information to the government bears on

whether that information remains confidential”).

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Here, DOJ fails on the first mandatory condition. DOJ’s declarant provides a total of two

sentences to sustain the agency’s burden on the confidential nature of the withheld records. First,

the declaration states that “[t]he information contained in the withheld records is ‘confidential’

because Boeing would not customarily release this information publicly.” Herrington Decl. ¶ 19.

But this merely recites the relevant legal standard without providing additional details. See

Campbell v. DOJ, 164 F.3d 20, 30 (D.C. Cir. 1998) (explaining that affidavits that are “conclusory

[or] merely reciting statutory standards” cannot meet the agency’s burden on summary judgment).

Moreover, it lacks any explanation about how DOJ’s declarant, the Deputy Chief of the Criminal

Division’s FOIA office, has personal knowledge of Boeing’s confidentiality practices. See

Londrigan v. FBI, 670 F.2d 1164, 1174 (D.C. Cir. 1981) (explaining that the “requirement of

personal knowledge by the affiant is unequivocal, and cannot be circumvented”). Next, DOJ’s

declarant notes that Boeing “stated in letters to the Department that it was requesting confidential

treatment of these records under the FOIA and marked the majority of the records provided as

confidential for purposes of FOIA.” Herrington Decl. ¶ 19. But “these confidential treatment

requests,” while “indicative of [Boeing’s] actual and customary treatment, . . . are not, without

more, sufficient grounds to conclude that the agency met its burden under FOIA.” WP Co. LLC v.

Nat’l Highway Traffic Safety Admin., No. 24-cv-1353, 2026 WL 820742, at *4 (D.D.C. Mar. 25,

2026) (emphasis omitted); see also Ctr. for Auto Safety v. U.S. Dep’t of Treasury, 133 F. Supp. 3d

109, 130 (D.D.C. 2015) (“A company’s request for confidential treatment is not a sufficient basis

for withholding information.”). And DOJ goes no further to explain Boeing’s practices. In

addition, DOJ makes no attempt whatsoever to explain whether and how the three third party

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entities customarily keep their information private. As a result, DOJ fails to meet its burden to

prove confidentiality under Exemption 4.7

3. Foreseeable Harm

Turning to foreseeable harm, an agency may “withhold information . . . only if [it]

reasonably foresees that disclosure would harm an interest protected by an exemption[.]” 5 U.S.C.

§ 552(a)(8)(A)(i)(I). To do so, it must “articulate both the nature of the harm [from release] and

the link between the specified harm and specific information contained in the material withheld.”

Reps. Comm. for Freedom of the Press v. FBI, 3 F.4th 350, 369 (D.C. Cir. 2021) (internal quotation

marks omitted). Importantly, it “cannot rely on mere speculative or abstract fears . . . [n]or may

the government meet its burden with generalized assertions.” Id. (cleaned up). In this way, “the

foreseeable harm requirement imposes an independent and meaningful burden on agencies.” Id.

Particularly after Argus Leader, “few courts have considered what burden the foreseeableharm requirement imposes on agencies that seek to withhold records pursuant to Exemption 4.”

Shteynlyuger v. Ctrs. for Medicare & Medicaid Servs., 698 F. Supp. 3d 82, 123 (D.D.C. 2023).

Still, an “emerging consensus of judges in this district” have “generally agreed that agencies may

meet their burden by demonstrating how disclosure of the requested information would harm the

submitter’s economic or business interests,” WP Co. LLC, 2026 WL 820742, at *11 (cleaned up);

7

The second (possibly inessential) condition identified in Argus Leader considers whether an agency provided some assurance to the submitting party that its records would remain secret. 588 U.S. at 434. DOJ appears to have met this condition for some (but not all) of the withheld records. For the six records withheld in full under Exemption 4, which included “commercial information provided by Boeing to demonstrate compliance with the [deferred prosecution agreement],” DOJ explains that they were provided “under assurance of confidentiality.” Herrington Decl. ¶ 36. However, for the remaining records withheld in part under Exemption 4, even though Boeing asked to keep the records confidential, DOJ never claims that it agreed to do so. In any event, because DOJ could not clear the first condition of Argus Leader, the second condition has no impact.

15

see also Ctr. for Investigative Reporting v. U.S. Customs & Border Prot., 436 F. Supp. 3d 90, 113

(D.D.C. 2019) (“To meet this requirement, the defendants must explain how disclosing, in whole

or in part, the specific information withheld under Exemption 4 would harm an interest protected

by this exemption, such as by causing ‘genuine harm to [the submitter’s] economic or business

interests,’ and thereby dissuading others from submitting similar information to the government[.]”

(quoting Argus Leader, 588 U.S. at 441 (Breyer, J., concurring in part and dissenting in part))).

Here, again, DOJ’s declaration is scant. It spends one sentence explaining that “[t]he

release of information concerning Boeing’s internal operations, compliance programs, business

strategy, etc. could clearly cause Boeing competitive harm while a lack of trust that the Criminal

Division will honor requests of confidentiality could harm the Division’s ability to obtain

information from businesses and persons in the future.” Herrington Decl. ¶ 20. This explanation is

too vague. DOJ never attempts to “articulate . . . the nature of the harm,” much less link it to the

“specific information contained in the material withheld.” Reps. Comm., 3 F.4th at 369. In other

words, DOJ does not bother to explain why release of the specific information withheld would

harm the submitter’s economic or business interests. For example, DOJ ignores the Plaintiffs’

arguments that the withheld information may cause little harm to Boeing’s economic or business

interests after subsequent public reporting and disclosures. In fact, as noted above, DOJ did not

file a reply brief at all. As is the case here, “[t]hough an agency is not required to disclose so much

information that it would thwart the purpose of the exemption invoked, summary judgment is

inappropriate where the agency provides only conclusory statements and has not satisfied its

burden of justifying its withholdings.” Pub. Emps. for Env’t Resp. v. Off. of Sci. & Tech. Pol’y,

825 F. Supp. 2d 104, 111 (D.D.C. 2011) (citations omitted). Thus, even if DOJ had established

16

that the withheld information was both commercial and confidential, it would fail to establish

foreseeable harm.

***

DOJ has not carried its burden to show that the withheld information is confidential or that

disclosure would cause foreseeable harm. As a result, the Court will deny its summary judgment

motion with respect to Exemption 4 and grant the Plaintiffs’ motion.

C. Exemptions 6 and 7(C)

DOJ next invoked Exemptions 6 and 7(C) to withhold three categories of information:

“(1) the names and identifying information of Boeing personnel; (2) contact information for

Boeing’s outside counsel, including email addresses, as well as office and mobile phone numbers;

and (3) contact information of DOJ attorneys.” Herrington Decl. ¶ 24. The Court concludes that

DOJ properly withheld the first and third categories but not the second.

“FOIA Exemptions 6 and 7(C) seek to protect the privacy of individuals identified in

certain agency records.” ACLU v. DOJ, 655 F.3d 1, 6 (D.C. Cir. 2011). Exemption 6 permits an

agency to withhold “personnel and medical files and similar files the disclosure of which would

constitute a clearly unwarranted invasion of personal privacy[.]” 5 U.S.C. § 552(b)(6). Exemption

7(C) protects “records or information compiled for law enforcement purposes, but only to the

extent that the production of such law enforcement records or information . . . could reasonably be

expected to constitute an unwarranted invasion of personal privacy[.]” 5 U.S.C. § 552(b)(7)(C).

Because Exemption 7(C) permits the withholding of records “if disclosure would constitute an

‘unwarranted’ invasion of personal privacy, while Exemption 6 requires a ‘clearly unwarranted’

invasion to justify nondisclosure, ‘Exemption 7(C) is more protective of privacy than Exemption

6’ and thus establishes a lower bar for withholding material.” ACLU, 655 F.3d at 6 (quoting U.S.

17

Dep’t of Def. v. FLRA, 510 U.S. 487, 496 n.6 (1994)). For that reason, when an agency claims that

records may be withheld under both exemptions, a court “need only consider whether [the agency]

properly invoked Exemption 7(C).” Id.

To invoke Exemption 7(C), an agency must meet two requirements. First, it must make a

“threshold showing” that the records at issue “were compiled for law enforcement purposes.” Boyd

v. Exec. Off. for U.S. Att’ys, 87 F. Supp. 3d 58, 72 (D.D.C. 2015). When making this showing, “the

focus is on how and under what circumstances the requested files were compiled, and ‘whether

the files sought relate to anything that can fairly be characterized as an enforcement proceeding.’”

Jefferson v. DOJ., Off. of Pro. Resp., 284 F.3d 172, 176–77 (D.C. Cir. 2002) (first citing Weisberg

v. DOJ, 489 F.2d 1195, 1202 (D.C. Cir. 1973); then quoting Aspin v. Dep’t of Def., 491 F.2d 24,

27 (D.C. Cir. 1973)).

After clearing this threshold, the agency faces a balancing test. First, a court will consider

whether disclosure “would compromise a substantial, as opposed to de minimis, privacy interest,”

because “[i]f no significant privacy interest is implicated . . . FOIA demands disclosure.” Nat’l

Ass’n of Retired Fed. Emps. v. Horner, 879 F.2d 873, 874 (D.C. Cir. 1989). In this context, “[a]

substantial privacy interest is anything greater than a de minimis privacy interest.” Multi Ag Media

LLC v. Dep’t of Agric., 515 F.3d 1224, 1229–30 (D.C. Cir. 2008). Second, assuming that it finds

a privacy interest, the court will then “address the question whether the public interest in disclosure

outweighs the individual privacy concerns.” Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26,

35 (D.C. Cir. 2002). When considering what constitutes the public interest, the court must assess

“the extent to which disclosure of the information sought would ‘she[d] light on an agency’s

performance of its statutory duties’ or otherwise let citizens know ‘what their government is up

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to.’” U.S. Dep’t of Def. v. FLRA, 510 U.S. at 497 (alteration in original) (quoting DOJ v. Reps.

Comm. for Freedom of Press, 489 U.S. 749, 773 (1989)).

Here, DOJ explains—and the Plaintiffs do not dispute—that the three categories of records

were compiled for “a criminal investigation involving Boeing[.]” Cross-Mot. 11. Therefore, DOJ

satisfies the “threshold showing” that the records at issue “were compiled for law enforcement

purposes.” Boyd, 87 F. Supp. 3d at 72. The Court thus proceeds to the balancing test, taking each

category of withheld information in turn.

1. Boeing Personnel

Starting with the names and identifying information of Boeing personnel, the Court is

persuaded that disclosing this information would implicate a significant privacy interest that is not

outweighed by the public interest. Boeing personnel have a significant privacy interest in their

names and identifying information. As DOJ’s declaration explains, “[p]ublic identification of these

persons could subject them to harassment and annoyance in the performance of their jobs, as well

as their private lives.” Herrington Decl. ¶ 25. The D.C. Circuit has agreed on this point, explaining

that “[t]here is little question that disclosing the identity of targets of law-enforcement

investigations can subject those identified to embarrassment and potentially more serious

reputational harm.” Senate of P.R., 823 F.2d at 588. Thus, the Circuit has held “categorically that,

unless access to the names and addresses of private individuals appearing in files within the ambit

of Exemption 7(C) is necessary in order to confirm or refute compelling evidence that the agency

is engaged in illegal activity, such information is exempt from disclosure.” SafeCard Servs., Inc.

v. SEC, 926 F.2d 1197, 1206 (D.C. Cir. 1991).

Despite DOJ’s reliance on SafeCard, the Plaintiffs do not address it at all. Instead, they

point out that “when filing and announcing the Deferred Prosecution Agreement,” DOJ “publicly

19

identif[ied] Boeing’s Chief Technical Pilot and single[d] him out as the culprit behind Boeing’s

fraud.” Reply 10. But the Plaintiffs do not explain why DOJ’s decision to publicly pursue one

investigatory target would diminish the privacy interests of different employees mentioned in law

enforcement files.

Meanwhile, on the public interest side of the ledger, the Plaintiffs identify an interest “in

knowing whether the government had information that other Boeing employees, including higherranking Boeing executives, perpetuated the fraud that ultimately caused 346 people to die in two

plane crashes.” Reply 10. DOJ goes too far in claiming that “[t]here is no public interest in the

withheld information,” Cross-Mot. 13, given the well-recognized “public interest in shedding light

on agency investigatory procedures,” PETA, 745 F.3d at 543. Even so, courts in this District have

“consistently found that interest, without more, insufficient to justify disclosure when balanced

against the substantial privacy interests weighing against revealing the targets of a law enforcement

investigation.” Id.; see also Schrecker v. DOJ, 349 F.3d 657, 666 (D.C. Cir. 2003) (similarly

holding that scrutiny of a law enforcement investigation will rarely outweigh a significant privacy

interest). And the Plaintiffs must marshal “compelling evidence” that DOJ was “engaged in illegal

activity,” SafeCard, 926 F.2d at 1206, a burden that they do not attempt to meet. Thus, the Court

concludes that Exemption 6 and 7(C) protect the names and identifying information of Boeing

personnel.

2. Boeing’s Outside Counsel

Next, DOJ withheld the contact information of Boeing’s outside counsel, including email

addresses, as well as office and mobile phone numbers. But the Court is not convinced that

disclosure of that information would implicate a significant privacy interest. Exemption 7(C) does

not apply to “[i]nformation relating to business judgments and relationships . . . even if disclosure

20

might tarnish someone’s professional reputation.” Doe v. FEC, 920 F.3d 866, 873 (D.C. Cir. 2019).

As a result, courts have held that agencies may not withhold the identifying information of outside

counsel. See, e.g., King & Spalding, LLP v. HHS, 395 F. Supp. 3d 116, 122 (D.D.C. 2019); Majuc

v. DOJ, No. 18-cv-566, 2022 WL 266700, at *8 (D.D.C. Jan. 28, 2022). Because the contact

information of Boeing’s outside counsel implicates “no significant privacy interest . . . FOIA

demands disclosure.” Horner, 879 F.2d at 874.

3. Government Attorneys

Finally, DOJ withheld the contact information of certain government attorneys. The Court

agrees that disclosure of this information is not warranted. Government attorneys do have a privacy

interest in their names and contact information. See Bast v. DOJ, 665 F.2d 1251, 1255 (D.C. Cir.

1981) (explaining that government officials “do not surrender all rights to personal privacy when

they accept a public appointment”); Rojas-Vega v. ICE, 302 F. Supp. 3d 300, 309–10 (D.D.C.

2018); Blakeney v. FBI, No. 17-cv-2288, 2019 WL 450678, at *5 (D.D.C. Feb. 5, 2019). And

importantly, the Plaintiffs fail to identify a cognizable public interest that outweighs these privacy

interests. See Nat’l Archives & Recs. Admin. v. Favish, 541 U.S. 157, 172 (2004) (explaining that

the requester bears the burden of articulating a public interest that warrants invasion of the privacy

interests at stake). In this context, “the only relevant public interest” is “the extent to which

disclosure of the information sought would ‘she[d] light on an agency’s performance of its

statutory duties’ or otherwise let citizens know ‘what their government is up to.’” U.S. Dep’t of

Def. v. FLRA, 510 U.S. at 497 (alteration in original) (quoting DOJ v. Reps. Comm. for Freedom

of Press, 489 U.S. at 773. But the Plaintiffs do not explain why they seek the DOJ attorneys’

contact information at all. Therefore, they have not articulated a sufficient public interest to

outweigh the government employees’ privacy interests.

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4. Foreseeable Harm

Having found that the identifying and contact information of Boeing personnel and

government attorneys fall within the scope of Exemption 7(C), the Court turns to foreseeable harm.

Recall that an agency may only withhold information if it “reasonably foresees that disclosure

would harm” the privacy interests protected by the relevant exemption. See 5 U.S.C.

§ 552(a)(8)(A)(i)(I). Exemption 7(C) “protect[s] the privacy of individuals identified in certain

agency records,” ACLU, 655 F.3d at 6, so “disclosure of identifying information is a harm in and

of itself,” such that “an agency need not establish much more than the fact of disclosure to establish

foreseeable harm,” Ecological Rts. Found. v. EPA, 541 F. Supp. 3d 34, 65 (D.D.C. 2021).

Here, DOJ explains that “[p]ublic identification of [Boeing personnel] could subject them

to harassment and annoyance in the performance of their jobs, as well as their private lives.”

Herrington Decl. ¶ 25. It similarly says that disclosure of government employees’ contact

information could “subject them to harassment and unwanted publicity,” “limit their

effectiveness,” and “disrupt and impede their official activity.” Id. ¶ 26. This constitutes sufficient

foreseeable harm under Exemption 7(C). See Ecological Rts., 541 F. Supp. 3d at 65 (finding that

the agency established foreseeable harm by explaining that disclosing agents’ names could expose

them to harassment); Ball v. U.S. Marshals Serv., No. 19-cv-1230, 2021 WL 4860590, at *9

(D.D.C. Oct. 19, 2021) (same).

***

In sum, DOJ properly invoked Exemption 7(C) to withhold the names and identifying

information of Boeing personnel and the contact information of DOJ attorneys. As to that

information, the Court will grant summary judgment to DOJ and deny summary judgment to the

Plaintiffs. However, DOJ may not invoke Exemption 7(C) to withhold the contact information for

22

Boeing’s outside counsel. As to that information, the Court will grant summary judgment to the

Plaintiffs and deny summary judgment to DOJ.

D. Exemption 7(A)

Finally, the Department invoked Exemption 7(A) to withhold additional records in full and

in part which “pertain to the Criminal Division’s investigation of Boeing which ultimately led to

the parties entering into a [deferred prosecution agreement], and after finding the [agreement] had

been breached, the current non-prosecution agreement[.]” Cross-Mot. 16. These documents

“consist of a personnel file of a Boeing employee, grand jury materials, Boeing’s proposed

administrators for the compensation fund, and other records submitted by Boeing to demonstrate

compliance in accordance with the prosecution agreements.” Id. DOJ has failed to show that

Exemption 7(A) applies to these records.

Exemption 7(A) protects from disclosure “records or information compiled for law

enforcement purposes, but only to the extent that the production of such law enforcement records

or information . . . could reasonably be expected to interfere with enforcement proceedings.”

5 U.S.C. § 552(b)(7)(A). “The principal purpose of Exemption 7(A) is to prevent disclosures

which might prematurely reveal the government’s cases in court, its evidence and strategies, or the

nature, scope, direction, and focus of its investigations, and thereby enable suspects to establish

defenses or fraudulent alibis or to destroy or alter evidence.” Maydak v. DOJ, 218 F.3d 760, 762

(D.C. Cir. 2000). To withhold records under Exemption 7(A), an agency must demonstrate that

“disclosure (1) could reasonably be expected to interfere with (2) enforcement proceedings that

are (3) pending or reasonably anticipated.” Mapother v. DOJ, 3 F.3d 1533, 1540 (D.C. Cir. 1993)

(emphasis omitted). Courts generally consider: “(1) whether a law enforcement proceeding is

23

pending or prospective; and (2) whether release of information about it could reasonably be

expected to cause some articulable harm.” Kay v. FCC, 976 F. Supp. 23, 37 (D.D.C. 1997).

Here, the Plaintiffs argue that the records do not relate to a pending or prospective law

enforcement proceeding. Alternatively, they argue that disclosure would not cause any articulable

harm because Boeing has access to the records and its underlying conduct is already public.

1. Pending or Prospective Law Enforcement Proceeding

To properly invoke Exemption 7(A), DOJ must either show that the withheld material

“relates to a ‘concrete prospective law enforcement proceeding,’” Carson v. DOJ., 631 F.2d 1008,

1018 (D.C. Cir. 1980) (quoting NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 232 (1978)),

or specify “that the enforcement proceeding is pending or reasonably anticipated,” Boyd v. Crim.

Div. of U.S. Dep’t of Just., 475 F.3d 381, 386 (D.C. Cir. 2007). DOJ’s declarant attests that the

enforcement proceeding against Boeing “remains active.” Herrington Decl. ¶ 30. He explains that

“if Boeing fails to abide by its obligations under the [non-prosecution agreement],” DOJ “may

prosecute Boeing” for federal criminal violations. Id. ¶ 32. That appears to suffice.

The Plaintiffs argue that “[e]specially given the Boeing-protective terms of the NonProsecution Agreement,” DOJ fails to point to a concrete prospective proceeding. Mot. Summ.

J. 11. However, this is “not quite the formidable hurdle” that the Plaintiffs make it out to be: “[S]o

long as the investigation continues to gather evidence for a possible future criminal case, and that

case would be jeopardized by the premature release of that evidence, Exemption 7(A) applies.”

Juarez v. DOJ, 518 F.3d 54, 59 (D.C. Cir. 2008). Because DOJ may bring criminal charges if

Boeing is noncompliant with the non-prosecution agreement—an agreement reached in May 2025

that runs for two years, see Herrington Decl. ¶¶ 30, 34—DOJ’s enforcement proceedings against

Boeing remain pending.

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2. Lack of Articulable Harm

The Plaintiffs next argue that even if enforcement is pending or likely, DOJ fails to show

articulable harm because Boeing already has access to the withheld records. The Court agrees.

The D.C. Circuit considered a similar circumstance in Campbell v. HHS, where the

government invoked Exemption 7(A) to withhold documents Eli Lilly had submitted to the FDA

as part of a government investigation. 682 F.2d 256, 258 (D.C. Cir. 1982). In rejecting the

withholdings, the Circuit found that the “government’s submissions d[id] not explain how

information submitted by the company’s present and former officers or employees since the FDA

began its investigation could reveal the direction of the investigation to Lilly or alert it to anything

it d[id] not know already.” Id. at 260. Because the requester “sought no documents supplied by

sources other than Lilly personnel,” the Circuit reasoned, disclosure necessarily was unlikely to

tip the company off with information they themselves supplied. Id.

The same is true here. As the Plaintiffs correctly point out, “[b]ecause the records at issue

consist only of communications between DOJ lawyers and Boeing lawyers or representatives, any

produced information necessarily will already be in Boeing’s possession and hence will not

undermine any hypothetical law enforcement proceeding against Boeing.” Reply 3; see also Mot.

Summ. J. 11–12. DOJ responds that “it is a stretch to state that Boeing has access to all the

materials that make up the Department’s investigatory file,” and that “release of that file could

under[mine] the Department’s ability to bring later charges to enforce the [Boeing non-prosecution

agreement].” Cross-Mot. 16. However, the Plaintiffs sought only communications between Boeing

and DOJ—not the entire investigative file. At bottom, DOJ “does not explain how its investigation

will be impaired by the release of information that the targets of the investigation already possess.”

25

Chesapeake Bay Found., Inc. v. U.S. Army Corps of Eng’rs, 677 F. Supp. 2d 101, 108 (D.D.C.

2009). That dooms DOJ’s Exemption 7(A) arguments.

***

In sum, DOJ has not carried its burden under Exemption 7(A). Therefore, the Court will

deny its motion and grant summary judgment in the Plaintiffs’ favor.

E. Segregability

FOIA provides that “[a]ny reasonably segregable portion of a record shall be provided to

any person requesting such record after deletion of the portions which are exempt[.]” 5 U.S.C.

§ 552(b). “Agencies are entitled to a presumption that they complied with the obligation to disclose

reasonably segregable material.” Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir.

2007). An agency can satisfy the segregability analysis by attesting that it conducted a “line-byline review of each document withheld in full” and determined “that no documents contained

releasable information which could be reasonably segregated from the nonreleasable portions.”

Johnson v. Exec. Off. for U.S. Att’ys, 310 F.3d 771, 776 (D.C. Cir. 2002). To rebut this

presumption, a plaintiff must produce a “quantum of evidence,” at which point “the burden lies

with the government to demonstrate that no segregable, nonexempt portions were withheld.”

Sussman, 494 F.3d at 1117. The Court considers segregability for DOJ’s withholdings sustained

under Exemptions 3, 6, and 7(C).

Starting with the Exemption 6 and 7(C) withholdings, DOJ’s declarant explained: “I have

conducted a line-by-line review of the records to consider whether any information could be

segregated and released without causing a foreseeable harm to the agency and have determined

that no further non-exempt information could be segregated for release.” Herrington Decl. ¶ 38. In

response, the Plaintiffs state that the declaration fails to “explain why especially sensitive

26

information, such as contact information or truly personal information (if any), cannot be redacted

from otherwise responsive records.” Reply 11. But the Plaintiffs offer no evidence as to why it

believes that DOJ’s line-by-line review was inadequate. This is not sufficient to disturb the

“presumption” that DOJ met its obligation to disclose reasonably segregable information.

Sussman, 494 F.3d at 1117.

As to the Exemption 3 withholdings, DOJ has provided a Vaughn index and “a declaration

attesting that the agency released all segregable material.” Jud. Watch, Inc. v. DOJ, 20 F. Supp. 3d

260, 277 (D.D.C. 2014). For these withholdings, DOJ did not attest to undertaking a line-by-line

review of the properly withheld grand jury subpoenas. But DOJ’s declarant explained that those

documents were “readily identifiable,” Herrington Decl. ¶ 38, and the Plaintiffs have not

marshalled any evidence to the contrary. So the Court must find in DOJ’s favor.

CONCLUSION

For the foregoing reasons, the Court grants in part and denies in part the Plaintiffs’ motion

for summary judgment, ECF No. 34, and the Defendant’s cross-motion for summary judgment,

ECF No. 35. The Court directs the Parties to meet and confer to discuss how to proceed in light of

this Memorandum Opinion. The Parties shall appear for a status conference on October 6, 2026,

where they should be prepared to propose next steps.

A separate order will issue.

SPARKLE L. SOOKNANAN

United States District Judge

Date: September 11, 2026

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