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
2
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.
1
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.”
3
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
5
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
6
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).
10
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
14
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
18
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.
21
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.
24
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
27