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IN THE UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON,

) ) ) Plaintiff, ) ) vs. ) ) UNITED STATES DEPARTMENT OF AGRICULTURE, ) ) Defendant. ) ________________________________________________)

CV-05-0538 (PLF)

DEFENDANTS MOTION FOR SUMMARY JUDGMENT Because there are no genuine issues of material fact, and because Defendant is entitled to judgment as a matter of law pursuant to Federal Rule of Civil Procedure 56, Defendant respectfully moves this Court for summary judgment. The grounds for this motion are set forth fully in the attached memorandum of law.

DATED: July 25, 2005

Respectfully submitted, PETER D. KEISLER Assistant Attorney General KENNETH L. WAINSTEIN United States Attorney ELIZABETH J. SHAPIRO Assistant Branch Director

/s/ MARCIA N. TIERSKY, Ill. Bar 6270736 Trial Attorney Federal Programs Branch U.S. Department of Justice 20 Massachusetts Ave., N.W. Room 7206

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Washington, D.C. 20530 (202) 514-1359 Fax (202) 318-0486 marcia.tiersky@usdoj.gov COUNSEL FOR DEFENDANT

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IN THE UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON,

) ) ) Plaintiff, ) ) vs. ) ) UNITED STATES DEPARTMENT OF AGRICULTURE, ) ) Defendant. ) ________________________________________________)

CV-05-0538 (PLF)

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS MOTION FOR SUMMARY JUDGMENT Plaintiff Citizen for Responsibility and Ethics in Washington (CREW) made a request for records from the United States Department of Agriculture (USDA or the Agency) pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. 552 et seq. The request sought records pertaining to contacts between the Agency and any external public relations firms during the time period from January 1, 2001, to the present. The Agency has released thousands of pages of documents in response to Plaintiffs request (and other similar requests). From two released documents, the Agency has redacted Social Security numbers pursuant to exemption six of the FOIA, which allows withholding of private information. Portions of one three-page document have been withheld pursuant to exemption five, under the deliberative process privilege prong, because it contains deliberative recommendations regarding whether to hire a particular contractor prior to that decision having been made. Pursuant to exemption four, information contained in 155 pages has been withheld. All other information has been released in full. Because Defendant has properly released that information which is subject to the FOIA

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and withheld that information which is subject to exemptions four, five and six, Defendant respectfully requests that the Court enter judgment in its favor. FACTUAL BACKGROUND1 CREW submitted its initial FOIA request to the Agency on January 11, 2005. Complaint at Exh G. The request sought any contact, dating from January 1, 2001, that any office of the Department of Agriculture may have had with any external public affairs firm. . . . Id. at 1. The request sought records regardless of format, medium, or physical characteristics including electronic records, audiotapes, videotapes, and photographs and any telephone messages, voice mail messages, daily agenda and calenders and information about any meetings. Id. Prior to the receipt of Plaintiffs FOIA request, USDA had received a number of similar FOIA requests seeking the contracts between USDA and public relations firms. See Declaration of Andrea E. Fowler (Fowler Decl.) at 6. Andrea Fowler, the FOIA Officer for USDA, sent copies of those FOIA requests to all USDA agencies to determine which agencies had responsive documents. Id. at 7. The agencies with responsive documents were instructed to provide copies of the contracts to the Office of Communications, and those documents were posted on the USDA website at www.usda.gov. See id. at 8-10. Ms. Fowler received Plaintiffs request on March 21, 2005. Id. at 4.2 She instructed the agencies likely to have responsive records to execute a search for the requested records. Id.

As required by Local Rule 7(h), this memorandum is accompanied by a separate statement of material facts as to which there is no genuine issue. Plaintiff failed to submit its request to the proper FOIA officer as set forth in 7 C.F.R. 1.1; 1.3(c); 1.5; 1.25(a)(3). Consequently, Ms. Fowler did not receive Plaintiffs FOIA request until after the Complaint was filed. Fowler Decl. 4. -22

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at 13. The agencies thoroughly searched for responsive documents. Declaration of Mary A. Alston (Alston Decl.) at 5-7, 10; Declaration of Lesia M. Banks (Banks Decl.) at 5-7, 10, 12; Declaration of Sara L. Bradshaw (Bradshaw Decl.) at 5-12, 21; Declaration of Janice G. Carpenter (Carpenter Decl.) at 5-9; Declaration of Norma Ferguson (Ferguson Decl.) at 6-11, 13; Fowler Decl. at 6, 7, 9, 11, 13, 16; Declaration of Valerie N. Herberger (Herberger Decl.) at 5-8, 14, 17; Declaration of Dorothy C. Hinden (Hinden Decl.) at 5-7; Declaration of Sharon L. Turner (Turner Decl.) at 5-7, 15. The agencies have released thousands of pages of records in full in response to CREWs request on www.usda.gov and/or by sending the documents directly to CREW. Alston Decl. at 9, 11-12; Banks Decl. at 7, 9-12; Bradshaw Decl. at 8, 12, 14, 20; Carpenter Decl. at 10-14; Ferguson Decl. at 7, 11-13; Fowler Decl. at 12, 15; Herberger Decl. at 9-16; Hinden Decl. at 11-13; Turner Decl. at 6, 8-14, 16-21. At this point, all responsive documents that have been located and which were not subject to any FOIA exemptions have been released in full. Alston Decl. at 12-13; Banks Decl. at 11-12; Bradshaw Decl. at 20-21; Carpenter Decl. at 12-14; Ferguson Decl. at 12-13; Fowler Decl. at 15-16; Herberger Decl. at 16-17; Hinden Decl. at 12-14; Turner Decl. at 17-21. Of the documents that contain FOIA exemptions, there are two pages that have had Social Security numbers redacted from them, Turner Decl. at 20, portions of one three-page document that have been withheld pursuant to exemption five, id. at 21, and 155 pages3 of documents that have been withheld in part, pursuant to exemption four. Declaration of

The number 155 combines the three pages of redactions by Porter Novelli with the 152 pages of redactions by Fleishman-Hillard. See Snyder Decl. at 3; Truesdell Decl. at Vaughn Index; Bradshaw Decl. at 17. However, there is duplication among the Fleishman-3-

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Jason Truesdell (Truesdell Decl.) at 4 & Vaughn Index; Declaration of Danny Dinius Snyder (Snyder Decl.) at 3; Bradshaw Decl. at 17. All segregable materials from the pages subject to the exemptions have been released. Turner Decl. at 22; Truesdell Decl. at 3; Snyder Decl. at Exh A; Bradshaw Decl. at Exh. A. Plaintiff filed the instant action on March 16, 2005, alleging that it had received no response to its document request from USDA. USDA answered the Complaint on April 18, 2005. See Answer. On April 22, 2005, this Court ordered Defendant to file a dispositive motion on June 20, 2005, which deadline was subsequently extended to July 11, 2005, and then to July 25, 2005. See Order of April 22, 2005; Order of June 10, 2005; Order of July 12, 2005. STANDARD OF REVIEW FOIA matters are reviewed de novo, and the agency bears the burden of justifying nondisclosure. Schrecker v. United States Dept of Justice, 349 F.3d 657, 661-62 (D.C. Cir. 2003); Campbell v. United States DOJ, 164 F.3d 20, 30 (D.C. Cir. 1998). Summary judgment pursuant to Rule 56 is the procedural vehicle by which most FOIA actions are resolved. See, e.g., Miscavige v. IRS, 2 F.3d 366, 369 (11th Cir. 1993) (Generally, FOIA cases should be handled on motions for summary judgment, once the documents in issue are properly identified.). Summary judgment is to be freely granted where, as here, there are no material facts genuinely at issue, and the agency is entitled to judgment as a matter of law. See Alyeska Pipeline Serv. Co. v. U.S. EPA, 856 F.2d 309, 314-15 (D.C. Cir. 1988); Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Material facts are those that might affect the

Hillard material. Consequently, there are actually only 111 unique pages of material with redactions from Fleishman-Hillard. See Bradshaw Decl. at 15, 18. -4-

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outcome of the suit under the governing law. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). ARGUMENT I. USDA CONDUCTED A PROPER SEARCH. Under FOIA, the agency is required to make "a good faith effort to conduct a search for the requested records, using methods reasonably expected to produce the information requested." Oglesby v. United States Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990); accord Students Against Genocide v. Dep't of State, 257 F.3d 828, 838 (D.C. Cir. 2001) (quoting Nation Magazine v. United States Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995). A reasonably calculated search does not require that an agency search every file where a document could possibly exist, but rather requires that the search be reasonable in light of the totality of circumstances. See SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991). In order to establish the adequacy of a search, agency affidavits must be relatively detailed, non-conclusory, and submitted in good faith. Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981). Agency affidavits are accorded a presumption of good faith. Id.; accord SafeCard, 926 F.2d at 1200. At the time that USDA received Plaintiffs FOIA request, it had already received and was processing several similar requests for contracts with public relations firms. Alston Decl. at 5-9; Banks Decl. at 5-9; Bradshaw Decl. at 5-7; Carpenter Decl. at 6-8; Ferguson Decl. at 6-9; Fowler Decl. at 6-10, 12; Herberger Decl. at 5-13; Hinden Decl. at 5-9; Turner Decl. at 5-13. Because Plaintiffs request sought some information that prior requests had not, USDA sent the request to those components of USDA which were likely to have

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responsive documents: the ones that had contracts with public relations firms. Fowler Decl. at 7-9, 11, 13. Each of these components conducted an internal search for the documents, seeking responsive documents from all persons and places where they were likely to be found. Alston Decl. at 5-7, 10; Banks Decl. at 5-7, 10, 12; Bradshaw Decl. at 8-12; Carpenter Decl. at 5-9; Ferguson Decl. at 6-11, 13; Fowler Decl. at 6, 7, 11, 13, 16; Herberger Decl. at 5-8, 14, 17; Hinden Decl. at 5-7; Turner Decl. at 5-7, 15. II. USDA PROPERLY WITHHELD PERSONAL INFORMATION PURSUANT TO EXEMPTION SIX. Exemption six of the FOIA provides that information is exempt the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. 5 U.S.C. 552(b)(6). The Supreme Court has recognized that privacy in the FOIA context refers to the individual's control of information concerning his or her person. United States DOJ v. Reporters Committee for Freedom of Press, 489 U.S. 749, 763 (1989). The Court must weigh the privacy interest in non-disclosure against the public interest in the release of the records in order to determine whether, on balance, the disclosure would work a clearly unwarranted invasion of personal privacy. Natl Ass'n of Retired Fed. Employees v. Horner, 879 F.2d 873, 874 (D.C. Cir. 1989). There are two documents from which Social Security numbers have been redacted. Turner Decl. at 20, Exh. L. The balance of interests strongly favors withholding Social Security numbers. The release of Social Security numbers would constitute a significant breach of privacy for the people to whom they are assigned. See id.; Judicial Watch, Inc. v. DOJ, 365 F.3d 1108, 1125-26 (D.C. Cir. 2004) (upholding exemption six for, inter alia, Social Security numbers); Gannett Satellite Info. Network, Inc. v. United States Dept of Educ., No. 90-6-

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13921990 WL 251480, *7-8 (D.D.C. Dec. 21, 1990) (same). See also Hertzberg v. Veneman, 273 F. Supp. 2d. 67, 86 n.13 (D.D.C. 2003) (The Court agrees with defendant, however, that there is a significant privacy interest in social security numbers, and no legitimate purpose would be served by their release.) (citing Sherman v. Dep't of Army, 244 F.3d 357, 364-66 (5th Cir. 2001); Judicial Watch, Inc. v. Export-Import Bank, 108 F. Supp. 2d 19, 38 (D.D.C. 2000)). Further, there is no public interest in the release of these Social Security numbers. See Turner Decl. at 20; Lepelletier v. FDIC, 164 F.3d 37, 47-48 (D.C. Cir. 1999) (discussing cases about invasion of personal privacy caused by release of Social Security numbers and requestors lack of interest in such information). The only relevant public interest in the FOIA balancing analysis 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. United States Dep't of Defense v. FLRA, 510 U.S. 487, 497 (1994) (quoting United States DOJ v. Reporters Committee for Freedom of Press, 489 U.S. 749, 773 (1989)) (alteration in original). The release of these Social Security numbers would in no way serve that interest. Because Social Security numbers are personal information in which the public has no interest, the agency properly withheld them pursuant to exemption six of the FOIA.4

Social Security numbers are also exempt from release under the FOIA pursuant to exemption three, which permits the withholding of information specifically exempted from disclosure by statute. . . . 5 U.S.C. 552(b)(3). The statute that exempts disclosure of Social Security numbers is 26 U.S.C. 6103, which requires government officials or employees to keep taxpayer return information confidential. -7-

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III.

USDA PROPERLY WITHHELD INFORMATION PURSUANT TO EXEMPTION FIVE. Exemption five of FOIA exempts from mandatory disclosure inter-agency or intra-

agency memorandums or letters which would not be available to a party other than an agency in litigation with the agency. 5 U.S.C. 552(b)(5). This exemption incorporates the common law discovery privileges, including the deliberative process privilege. See United States v. Weber Aircraft Corp., 465 U.S. 792, 800 (1984); NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). Documents covered by exemption five include those reflecting advisory opinions, recommendations and deliberations comprising part of a process by which government decisions and policies are formulated. NLRB, 421 U.S. at 150. The deliberative process privilege rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news, and its object is to enhance the quality of agency decisions by protecting open and frank discussion among those who make them within the Government. Dept of Interior & Bureau of Indian Affairs v. Klamath Water Users Protective Assoc., 532 U.S. 1, 8-9 (2001) (internal quotation marks and citations omitted). [E]fficiency of Government would be greatly hampered if, with respect to legal and policy matters, all Government agencies were prematurely forced to operate in a fishbowl. Envtl. Prot. Agency v. Mink, 410 U.S. 73, 87 (1973) abrogated by statute on other grounds, Pub. Law No. 93-502, 88 Stat. 1561 (1974) (quoting S. Rep. No. 813 p. 9). In deciding whether a document should be protected by the privilege we look to whether the document is predecisional[] whether it was generated before the adoption of an agency policy[] and whether the document is deliberative[] whether it reflects the give-and-take of the consultative process. Coastal States Gas Corp. v. Dept of Energy, 617 F.2d 854, 866 (D.C. -8-

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Cir. 1980). There should be considerable deference to the [agency's] judgment as to what constitutes... part of the agency give-and-take of the deliberative process by which the decision itself is made. Chemical Mfrs. Assn v. Consumer Prod. Safety Commn, 600 F. Supp. 114, 118 (D.D.C. 1984) (quoting Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975)). The agency is best situated to know what confidentiality is needed 'to prevent injury to the quality of agency decisions . . . . Id. at 118 (quoting NLRB v. Sears Roebuck & Co., 421 U.S. at 151). USDA has withheld portions of one three-page document pursuant to exemption five. Turner Decl. at 21. The document constitutes an evaluation of potential contractors prior to the hiring of one of the contractors. Id. The purpose of the evaluation was to enable the decisionmaker to compare the six different contractor applications and determine which to hire based on seven specific evaluation criteria. Id. The document is pre-decisional because it was created prior to the decision of which contractor to hire. See id.; Senate of Commonwealth of P.R. v. United States Dept of Justice, 823 F.2d 574, 585 (D.C. Cir. 1987). It is also deliberative because it is part of the agency process of analyzing and considering the relative merits of different contractors. Turner Decl. at 21. Documents that make non-binding recommendations are considered deliberative. See Natl Wildlife Fedn v. United States Forest Serv., 861 F.2d 1114, 1119 (9th Cir. 1988). The exemption for deliberative materials was created to protect the deliberative process of the government, by ensuring that persons in an advisory role would be able to express their opinions freely to agency decision-makers without fear of publicity. Ryan v. Dept of Justice, 617 F.2d 781, 789 (D.C. Cir. 1980). In this way, the exemption protects creative debate and

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candid consideration of alternatives within an agency, and, thereby, improves the quality of agency policy decisions. Jordan v. United States Dept of Justice, 591 F.2d 753, 772 (D.C. Cir. 1978), overruled on other grounds, Crooker v. Bureau of Alcohol, Tobacco and Firearms, 670 F.2d 1051 (D.C. Cir. 1981). If this document were released, agency employees would be inhibited from engaging in candid discussions of contractors in the future, potentially interfering with the contract award decisionmaking process. Turner Decl. at 21. Because the information contained in the document is deliberative and pre-decisional, USDA properly withheld it pursuant to exemption five of the FOIA. IV. USDA PROPERLY WITHHELD INFORMATION PURSUANT TO EXEMPTION FOUR. Exemption four protects the government's interest in the continued availability and reliability of information from third parties, as well as the submitter's interests in the confidentiality of commercial or financial information. Critical Mass Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 877-79 (D.C. Cir. 1992). It provides that "trade secrets and commercial or financial information obtained from a person and privileged or confidential" are exempt from disclosure. 5 U.S.C. 552(b)(4). So, to establish the applicability of exemption four, a party must show that the documents contain (1) commercial or financial information, (2) obtained from a person, (3) that is privileged or confidential. These three standards are met here. A. The Information Is Commercial and/or Financial.

The information at issue is commercial and financial. "[W]e have consistently held that the terms commercial' and financial' in the exemption [4] should be given their ordinary meanings." Pub. Citizen Health Research Group v. FDA, 704 F.2d 1280, 1290 (D.C. Cir. 1983). The information in the documents submitted by Porter Novelli, Inc., (PN) is commercial -10-

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and/or financial, as it is the amount of discount, in terms of percentage, that PN provided to the USDA. Snyder Decl. at 3. The information in the documents submitted by Fleishman-Hillard, Inc., (FH) is cost proposals, budget information, fees, pricing lists, and donated or discounted rates for advertisements. Truesdell Decl. at 4. Each of these categories of information is commercial and/or financial, as it relates directly to the flow of money and the commercial services that FH provided to USDA. See, e.g., Judicial Watch, Inc. v. Exp.-Imp. Bank, 108 F. Supp. 2d 19, 28 (D.D.C. 2000); LePelletier v. FDIC, 977 F. Supp. 456, 459 (D.D.C. 1997), affd in part, revd in part & remanded on other grounds, 164 F.3d 37 (D.C. Cir. 1999); M/A-COM Info. Sys. v. United States Dept of Health & Human Servs., 656 F. Supp. 691, 692 (D.D.C. 1986). B. The Information Was Submitted by a Person.

The information at issue was provided by a person. The term person' as used in exemption four refers to a wide range of entities including corporations, associations and public or private organizations other than agencies." Allnet Communication Servs., Inc. v. FCC, 800 F. Supp. 984, 988 (D.D.C. 1992); see also Judicial Watch, 108 F. Supp. 2d at 28 ("The only type of entity that is not considered a person' under Exemption 4 is an agency of the federal government."). The submitting companies, Porter Novelli, Inc., and Fleishman-Hillard, Inc., constitute people, pursuant to this definition. Cf. Snyder Decl. at 1; Truesdell Decl. at 1. C. The Information Is Confidential.

The information over which exemption four has been asserted is confidential under the test from National Parks and Conservation Association v. Morton, 498 F.2d 765 (D.C. Cir.

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1974).5 Under National Parks, information is confidential if disclosure of the information is likely to have either of the following effects: (1) to impair the Government's ability to obtain necessary information in the future; or (2) to cause substantial harm to the competitive position of the person from whom the information was obtained." Id. at 770. Under the second prong, a party need not show actual competitive harm. Pub. Citizen Health Research Group v. FDA, 704 F.2d 1280, 1290-91 (D.C. Cir. 1983). Evidence revealing actual competition and the likelihood of substantial competitive injury is sufficient. Id. The public relations industry is a highly competitive one, in which the submitting companies face actual competition. Truesdell Decl. at 2. Each of the six categories of information that have been redacted pursuant to exemption four present the likelihood of substantial competitive injury to the submitters if publicly released. First, the documents submitted by PN contain the percentage of discount offered by the company to USDA. Snyder Decl. 3; Bradshaw at 17. The release of such information is likely to cause substantial harm to PNs competitive position. See Snyder Decl. at 3-4. If the information were disclosed, PNs competitors could use it to underbid PN in the future. Snyder Decl. at 4. Additionally, other clients could use the information to determine how low PN will go with its pricing, thereby forcing PN to offer similar discounts at a greater loss to PN. Id. Further, PN takes great care to guard the confidentiality of this discount information, including requiring its employees to sign confidentiality agreements as to such information. Id. at 3.

Where information is submitted voluntarily, this Circuit applies the test set out in Critical Mass Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871 (D.C. Cir. 1992). Under Critical Mass, information is confidential if it "would customarily not be released to the public by the person from whom it was obtained." Id. at 878. The information at issue here would not be considered voluntarily submitted under Critical Mass. See Martin Marietta Corp. v. Dalton, 974 F. Supp. 37, 39 (D.D.C. 1997). -12-

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Therefore, the release of the information would cause substantial harm to PNs competitive position and it is properly withheld pursuant to exemption four. The second, third, and fourth categories are cost proposals submitted by FH to USDA for the media campaign associated with the USDA Food Stamp Program, budget information regarding the amount available for the media campaign, and actual fees paid to FH by USDA. Truesdell Decl. at 4, Vaughn Index.6 This cost, budget, and fee information is extraordinarily sensitive. Id. at 5. FH does not disclose billing rates and pricing structures relating to any of its clients to any third party. Id. FH employees are required to sign confidentiality agreements which state that information such as pricing structure is confidential and not to be disclosed to any third parties, and FHs client contracts indicate that FH will not disclose pricing information to third parties. Id. FH would suffer substantial competitive harm if this cost, budget, or fee information were disclosed. Id. at 6. FHs competitors could use the information to underbid FH on new business efforts and approach FHs existing clients with a "better deal." Id. See also Gulf & W. Indus., Inc. v. United States, 615 F.2d 527, 530 (D.C. Cir. 1979) (finding costs properly withheld under exemption four). In addition, competitors could gain insight into FHs cost structure and use that insight to hire away FHs employees. Truesdell Decl. at 6. Further, potential clients who gain access to this information could use it to determine how low FH will go on pricing, interfering with FHs ability to negotiate new contracts at

The documents in the category of cost proposals are 6-9, 11-12, 14-15, 18, 21, 24, and 26. Truesdell Decl. at Vaughn Index. The documents in the category of budget information are 1, 3-5, 16, 18, 21, and 23. Id. The documents in the category of actual fees paid are 2, 13, and 19. Id. -13-

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reasonable prices. Id. See also McDonnell Douglas Corp. v. NASA, 180 F.3d 303, 306-07 (D.C. Cir. 1999) (recognizing competitive harm from commercial customers being able to rachet down prices more effectively). This is particularly a problem because the pricing relationship that FH has with USDA is unique. Truesdell Decl. at 7. Because there is a likelihood that release of the cost, budget, or fee information would cause substantial harm to FHs competitive position, this information was properly withheld under exemption four. See CNA Fin. Corp. v. Donovan, 830 F.2d 1132, 1152 (D.C. Cir. 1987). The fifth category is pricing lists for advertisements negotiated by FH. Truesdell Decl. at 4, 8. The documents in this category are 1, 10, 16-18, 20, 23, and 25. See id. at Vaughn Index. FH has invested considerable time and money to develop these price lists, which are used to negotiate pricing arrangements with advertisers for both commercial and government clients. Id. at 8. Cf. Pub. Citizen, 185 F.3d at 905 (exemption four protects submitters from competitive harm caused by public revelation of information that required time and effort to obtain). FH would lose the benefits of its investment in these pricing lists if they were publicly disclosed. Id. See also McDonnell Douglas, 180 F.3d at 306 (detailed pricing information is covered by exemption four). Indeed, a competitor could use this information to undercut FH's arrangements with advertisers. Truesdell Decl. 8. Further, if its advertising customers knew what FH was paying to other advertisers, they could demand higher fees and other favorable terms. Id. Therefore, the pricing information was properly withheld pursuant to exemption four. See McDonnell Douglas Corp. v. United States Dept of Air Force, 375 F.3d 1182, 118889 (D.C. Cir. 2004), rehg denied (pricing information subject to exemption four).

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The final category of information is donated or discounted rates for advertisements negotiated by FH. Truesdell Decl. at 4, 9. The documents in this category are 1 and 16. Id. at Vaughn Index. These discounts reflect individual negotiations between FH and the advertisers, and the figures are unique to this media campaign for this client. Id. at 9. Revealing this information would lead other clients to expect similar discounts and donated time. Id. As with the advertising price lists, the release of such information would adversely affect FHs profit margin because of the reactions of other clients. Id. Therefore, this information about discounted rates or donated advertising time is properly withheld under exemption four. V. ALL SEGREGABLE MATERIAL HAS BEEN RELEASED. Under FOIA, non-exempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions. Mead Data Central, Inc. v. United States Dept. of the Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977). The question of segregability is completely dependent on the actual content of the documents themselves. Id. With regard to the documents that contain the exemption six information, the only information redacted was the Social Security numbers themselves. Turner Decl. at 20; Exh. L. The remaining information was segregable and has been disclosed. Turner Decl. at 20, 22. With regard to the documents containing material subject to exemptions 4 and 5, all segregable portions have been disclosed. Id. at 21-22, Exh. M; Snyder Decl. at 5, Exh. A; Truesdell Decl. at 3. CONCLUSION A plaintiff must show that the claimed exemption is improperly asserted in order to have a triable issue of material fact that will preclude awarding summary judgment to the defendant. Billington v. Dept of Justice, 11 F. Supp. 2d 45, 54 (D.D.C. 1998), affd in part, vacated in part

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by 233 F.3d 581 (D.C. Cir. 2000). Plaintiff is unable to make such a showing here. For the foregoing reasons, the Agency respectfully requests that this Court enter judgment in its favor.

DATED: July 25, 2005

Respectfully submitted,

PETER D. KEISLER Assistant Attorney General KENNETH L. WAINSTEIN United States Attorney ELIZABETH J. SHAPIRO Assistant Branch Director

/s/ Marcia Tiersky MARCIA N. TIERSKY, Ill. Bar 6270736 Trial Attorney Federal Programs Branch U.S. Department of Justice 20 Massachusetts Ave., N.W. Room 7206 Washington, D.C. 20530 (202) 514-1359 Fax (202) 318-0486 marcia.tiersky@usdoj.gov COUNSEL FOR DEFENDANT

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