Calderon v. United States Department of Agriculture

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)
PABLO CALDERON, )
)
Plaintiff, )
)
v. ) Case No. 14-cv-0425 (TSC)
)
U.S. DEPARTMENT OF AGRICULTURE, )
FOREIGN AGRICULTURAL SERVICE, )
)
Defendant. )
)

MEMORANDUM OPINION

Before the court are cross-motions for summary judgment in this case brought under the

Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. In response to a 2013 FOIA request by

Plaintiff Pablo Calderon for transactional documents relating to the GSM-102 Export Credit

Guarantee Program, Defendant U.S. Department of Agriculture (“USDA”) Foreign Agricultural

Service (“FAS”) produced over 9,000 pages of responsive documents. The documents contained

significant redactions, which FAS stated were necessary under FOIA Exemptions 4 and 6. These

exemptions cover confidential commercial information and personal information, respectively.

The parties now cross-move for summary judgment as to the application of those exemptions.

Upon consideration of the parties’ filings and the arguments of counsel at the hearing

held on December 14, 2016, the court concludes that Exemptions 4 and 6 apply to some, but not

all, of the redacted information. Therefore, as more fully explained below, FAS’s Motion is

GRANTED IN PART and DENIED IN PART, and Plaintiff’s cross-motion is also GRANTED

IN PART and DENIED IN PART.

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I. BACKGROUND

A. USDA-FAS’s GSM-102 Program

This suit involves a FOIA request for certain financial documents submitted to FAS

under the agency’s Export Credit Guarantee Program (“GSM-102” or the “Program”). As

described by the USDA in FAS’s briefs, submitted declarations, and Statement of Material Facts,

the Program, which is administered by FAS on behalf of the Commodity Credit Corporation

(“CCC”), supports the financing of American agricultural commodity exports by guaranteeing

the payments owed to U.S. exporters in qualifying transactions made with foreign importers. See

7 C.F.R. § 1493.10(a). Within the GSM-102 Program, agricultural exporters in the U.S.

negotiate sales with an importer in an eligible foreign destination that receives financing from a

foreign financial institution qualified under the Program. (Second Klusaritz Decl. ¶¶ 25–26

(ECF No. 37-3)). Exporters seek payment guarantees under the Program because the CCC will

“pay the Exporter, or the U.S. Financial Institution that may take assignment of the Payment

Guarantee, specified amounts of principal and interest in case of default by the Foreign Financial

Institution that issued the Letter of Credit for the export sale covered by the Payment Guarantee.”

7 C.F.R. § 1493.10(a); see also 7 C.F.R. § 1493.100 (terms and requirements of payment

guarantee). 1

To attain a payment guarantee from the CCC, the parties to the transaction must present

several key documents. There must be a letter of credit from the foreign financial institution to

the importer. 7 C.F.R. § 1493.90(a)(1). The letter of credit must stipulate that the foreign

financial institution received “at least one original clean on board bill of lading as a required

1
Exporters, U.S. financial institutions, and foreign financial institutions must all be approved by
the CCC. See 7 C.F.R. §§ 1493.30 (exporters), 1493.40 (U.S. banks), 1493.50 (foreign banks).

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document,” unless the exporter is “named as the shipper on the clean on board bill of lading,” in

which case the letter of credit “may stipulate a copy or photocopy of an original clean on board

bill of lading.” 7 C.F.R. § 1493.90(a)(1)(i)(A). There must also be a “Firm Export Sales

Contract” for an Eligible Export Sale before an exporter can submit an application to the CCC

for the payment guarantee. 7 C.F.R. § 1493.70(a). The application for the payment guarantee

must include information such as the name and address of the importer, or the “[n]ame and

address of the party on whose request the Letter of Credit is issued, if other than the importer,”

the date of sale, a description of the agricultural commodity, the mean quantity, the unit sales

price, and various other details. Id.

After securing a payment guarantee, and within 30 days after exporting the commodity,

an exporter must also provide the CCC with an “evidence of export report” which includes the

date of export, the exported value, the quantity, a description of the commodity, the unit sales

price, and various other information. 7 C.F.R. § 1493.130(a), (b). An exporter may assign the

payment guarantee to a U.S. financial institution, and if it does so, it must submit a notice of

assignment to the CCC that meets certain requirements. 7 C.F.R. § 1493.120. Lastly, the

exporter must obtain and maintain proof that the exported goods entered the country shown on

the payment guarantee. 7 C.F.R. § 1493.150. Certain export contracts are not eligible for

payment guarantees under the Program, including if the date of export pre-dates the date of the

application for the payment guarantee; if the actual date of export is later than the final date to

export shown on the payment guarantee; or if the letter of credit from the foreign financial

institution is dated more than thirty days after the date of export. 7 C.F.R. § 1493.100(f).

Thus, the Program involves four primary actors: the exporter, the U.S. financial

institution, the foreign financial institution, and the importer. The exporter and importer contract

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for the sale of agricultural commodities, followed by the importer securing a letter of credit from

the foreign financial institution to enable it to pay for the import. The exporter applies for and

secures a payment guarantee, then typically assigns the guarantee to a U.S. financial institution.

The U.S. bank typically pays the exporter for the sale in exchange for the assignment, and as a

result extends a de facto loan to the foreign financial institution, which now owes the debt to the

U.S. bank. (See Second Klusaritz Decl. ¶¶ 28–29). These transactions may become far more

complicated, however, if ownership of the commodity is transferred several times throughout the

export process, meaning the exporter may be different from the shipper, and the importer may be

different from the consignee or from another intervening purchaser.

Plaintiff tells a completely different story, however. According to him, the transactions

underlying the specific documents he requested—and indeed most of the guaranteed transactions

in the whole Program—do not actually involve the export of physical agricultural commodities,

but rather are just “structured trade finance” transactions. In these transactions, exporters or

other commodity traders will “recycle” the shipping documents from prior actual exports,

meaning that a current financial transaction is supported only by photocopies of a previous actual

export. (Pl. Statement of Material Facts (“PSMF”) ¶¶ 16–24 (ECF No. 39-3)). The foreign

importer receives a “synthetic” letter of credit from the foreign bank, and the U.S. exporter

presents the U.S. bank with a photocopy of an old bill of lading, along with a newly-negotiated

commercial invoice between the exporter and importer. (Id.). Plaintiff notes that in many

instances the exporter and importer that appear on the commercial invoices supporting these

synthetic trades are just related entities or subsidiaries. (Id. ¶ 20). Once the transaction is

approved and a program guarantee is attached, the U.S. bank provides the exporter with the

amount of money that appeared in the commercial invoice. That exporter then forwards those

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funds to the foreign bank. (Id. ¶ 21). 2

In effect, under the Program as Calderon describes it, U.S. banks are knowingly

extending no-strings-attached loans to foreign banks in order to provide those banks with liquid

capital, and this financing carries a low interest rate because the CCC guarantees the debt under

the GSM-102 Program. (Id.). In exchange for facilitating this transaction, the foreign bank pays

the U.S. exporter a fee, which provides the exporters or commodity trading entities with their

revenue. (Id.). Plaintiff also describes transactions called “renting trade flows,” in which

agricultural exporters allow others to “rent,” i.e. photocopy, their old bills of lading and other

documents in exchange for a “rental fee.” (Id. ¶ 27). The ability to rent others’ bills of lading,

rather than needing to recycle one’s own, has expanded the number of commodity traders that

can participate as “exporters” in these transactions under the Program. (Id. ¶¶ 27–29).

According to Plaintiff, synthetic letters of credit bear certain hallmarks that indicate that

they are used in structured trade finance transactions. These are:

(1) language in the LC indicating that “presentation of documents would be
acceptable despite ‘any and all discrepancies’” and that “documents shall be
acceptable as presented,” as opposed to requiring “complying presentations of
documents;” [sic] (2) permitting photocopies of bills of lading and not requiring
the originals, which are the Consignee’s title to the shipped goods and typically
are the underlying security in the LC; and (3) the LC was issued after the BLs and
after the goods were loaded on board the vessels transporting the goods.

(Pl. Rep. at 9 (citing Fortis Bank (Nederland) N.V. v. Abu Dhabi Islamic Bank, 936 N.Y.S. 2d

2
As will be discussed later in this Opinion, Calderon relies exclusively on his own declaration
and the declaration of Brett Lillemoe, his co-defendant in his criminal case. Though FAS has
raised no such objection, the court is not convinced that Calderon and Lillemoe have personal
knowledge of how the market operates generally and how the objecting submitters’ transactions
were structured specifically, as required for affidavits. See Fed. R. Civ. P. 56(c)(4) (“An
affidavit or declaration used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters stated.”).

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58, 2010 N.Y. Misc. LEXIS 6658, at *11–12 (N.Y. Sup. Ct. August 25, 2010))). Calderon also

requests that the court conduct an in camera review of the transaction documents, which he

asserts would confirm that the transactions are synthetic, because “the BL parties (Actual

Exporter and Consignee) are different from the LC and commercial invoice parties (GSM

Exporter, GSM Importer and Intervening Purchaser).” (Pl. Mem. at 16).

Defendant FAS does not outright dispute the existence of synthetic transactions in the

Program, but instead argues against the need for in camera review on the grounds that “FAS

personnel who work daily with the GSM-102 program cannot determine by the face of the

responsive records (redacted or unredacted) whether the underlying structure of the transactions

were ‘synthetic transactions’ that used ‘rental trade flows.’” (Third Klusaritz Decl. ¶ 9 (ECF No.

47-2)). FAS further states that, despite Calderon’s characterization, “acceptable” Program

transactions can be complex and can involve numerous parties, with arrangements such that

parties X and Y may appear on a bill of lading as the shipper and consignee, while parties A and

B appear on the guarantee application and commercial invoices as the exporter and importer.

(See id. ¶¶ 9–11). This directly contradicts Calderon’s assertion that only synthetic transactions

would have different parties on the bill of lading and the guarantee application or commercial

invoice.

Moreover, FAS notes that a letter of credit dated after a bill of lading is not indicative of

a synthetic transaction, since this is explicitly allowed under the Program regulations. (Id. ¶ 17

(citing 7 C.F.R. § 1493.100(g)(3))). Finally, FAS concludes by saying, in essence, “so what?”—

arguing that even if the transactions were synthetic, the submitters still engaged in competitive

transactions and would face the same harms upon disclosure of the redacted information,

meaning that any focus on the synthetic nature of transactions is misplaced or irrelevant in this

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court’s Exemption 4 analysis. (See id. ¶ 15).

Calderon’s knowledge of the Program and any synthetic trading occurring within it come

from his years operating Southern Cross Advisors LLC, which in FY 2009 and FY 2010

participated in the Program. (Calderon Decl. ¶ 1). Since 2010, he has not participated in the

Program. (Id. ¶ 44). In May 2015, FAS suspended him from participating in any federal

government program, including the GSM-102 Program. (Id.). In connection with his

participation in the GSM-102 Program and engaging in synthetic trading, Calderon was indicted

by a grand jury on February 20, 2015 in the U.S. District Court for the District of Connecticut on

twenty-three counts of wire fraud, bank fraud, false statements, money laundering, and

conspiracy to commit wire fraud and bank fraud, along with co-defendants Brett Lillemoe and

Sarah Zirbes. See Indictment, ECF No. 1 (Feb. 20, 2015) (Case No. 3:15-cr-00025-JCH). He

pleaded not guilty on all counts. (Calderon Decl. ¶ 44). After a five-week jury trial, Calderon

was convicted on November 9, 2016 of one count of conspiracy and one count of wire fraud.

See Jury Verdict Form, ECF No. 324 (Nov. 9, 2016) (Case No. 3:15-cr-00025-JCH). He is

scheduled to be sentenced on March 24, 2017. See Order (ECF No. 356) (Feb. 1, 2017) (Case

No. 3:15-cr-00025-JCH).

B. Calderon’s FOIA Request and the Present Litigation

On July 17, 2013, Calderon submitted a FOIA request to FAS seeking specific financial

documents that had been submitted to FAS under the GSM-102 Program. (Ex. 1 to Calderon

Decl. (ECF No. 39-5 at 16–17)). Specifically, Calderon requested:

• All records related to claims for loss of guarantees covering the defaults of
banks in Ukraine, Kazakhstan, and Russia.
• All records related to the guarantees described in the previous bullet point,
including but not limited to guarantee applications with amendments, related
sales contracts, the guarantees, amended guarantees, evidence of export
reports, and assignment notifications.

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 • All records of annual compliance reviews of all program exporters related to
guarantees covering banks in any country in the Eurasia Region or in Russia
from FY 2002 to FY 2012.
• All records related to the guarantees described in the previous bullet point,
including but not limited to guarantee applications with amendments, related
sales contracts, the guarantees, amended guarantees, evidence of export
reports, and assignment notifications.

(Id.). Approximately eight months later, after receiving no documents from FAS, Calderon filed

this litigation on March 18, 2014. (ECF No. 1).

In April 2014, FAS identified approximately 9,000 responsive documents. (See Second

Klusaritz Decl. ¶ 12). After determining that some of these records might contain confidential

commercial information (“CCI”), as required by Executive Order 12,600, FAS requested input

from six companies and six banks that had submitted the on whether the records contained CCI.

(Id. ¶¶ 12–14). FAS received responses from five of the exporters and all six of the banks. (Id.

¶¶ 15–16). Of the exporters, Bunge, Cargill, GDC Trading, and GSTS objected to disclosure,

Agritrade did not respond, and Grove Services responded that it had no objection. (Id.). Of the

banks, Deutsche Bank and Bank of New York objected on behalf of their clients, and Union

Bank of California, Rabobank Nederland, UniCredit Bank, and Cobank did not object. (Id.).

In October 2014 and January 2015, FAS produced 9,212 pages of responsive documents

in three batches to Calderon. (Id. ¶¶ 17–22, 32). FAS organized these responsive records into

three categories: registration files, claim files, and compliance files. The registration files

contain “applications for GSM payment guarantees; amendments to GSM payment guarantees;

email correspondence relating to those applications; CCC Export Credit Guarantee Program

Payment Guarantee Forms (‘Form CCC-627s’); evidence of export reports; internal GSM

System delivery summary reports; requests for payment guarantee amendments; and notices of

default (if applicable).” (Id. ¶ 33). The claim files contain “CCC payment vouchers, claims

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calculation worksheets, claims checklists; instrument of subrogation and assignment; claim for

loss letters; evidence of export reports; copies of payment schedules; invoices; bills of lading;

letters of credit and related SWIFT messages; financing agreements; and CCC Export Credit

Guarantee Program Payment Guarantee Forms (‘Form CCC-627s’).” (Id. ¶ 34). Finally, the

compliance files category includes “validation review checklists, applications for credit

guarantees; CCC Export Credit Guarantee Program Payment Guarantee Forms (“Form CCC-

627s”); amendments to GSM payment guarantees; evidence of export reports; letters of credit;

veterinary certificates; funds transfer documents; contracts with buyers; invoices; bills of lading;

certificates of entry; and correspondence.” (Id. ¶ 35).

Before releasing the responsive documents, FAS made significant redactions. These

included “the names, signatures and contact information (including addresses, telephone

numbers, and email addresses) of employees of exporters, bank officials, and other private

individuals with whom the exporters conducted transactional business.” (Id. ¶ 45). FAS asserts

that these redactions were proper under FOIA Exemption 6. FAS additionally made extensive

redactions under FOIA Exemption 4 of “unit pricing data, quantity data which, in conjunction

with guarantee value, would allow competitors to ascertain unit price information, certain

contractual terms, and identities of partners of these companies in their trade transactions

(including foreign banks, buyers, shippers, consignees, notify parties, letter of credit parties,

forwarders, and intervening purchasers).” (Id. ¶ 57). The Second Klusaritz Declaration lists the

types of redacted information, and justifications for each of those redactions, for eight types of

registration files (id. ¶ 61(a)–(h)), eleven types of claims files (id. ¶ 62(a)–(k)), and thirteen types

of compliance files (id. ¶ 63(a)–(m)).

In June 2015, both parties filed cross motions for summary judgment as to the

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appropriateness of these redactions. (ECF Nos. 23, 24). In August 2015, after the court

determined that Calderon’s reply brief (ECF No. 32) failed to comply with Local Civil Rule 7(h),

the court found it in the interest of justice to order new summary judgment briefing. FAS

subsequently filed its motion in September 2015 (ECF No. 37), and Plaintiff filed his cross-

motion in October 2015 (ECF No. 39). In May 2016, the court additionally required FAS to file

a brief notice responding to certain arguments raised by Calderon in his reply brief, and FAS did

so in June 2016. The court held oral argument on December 14, 2016.

II. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate where the record shows there is no genuine issue of

material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Waterhouse v. District of Columbia, 298

F.3d 989, 991 (D.C. Cir. 2002). In determining whether a genuine issue of material fact exists,

the court must view all facts in the light most favorable to the non-moving party. See Adickes v.

S.H. Kress & Co., 398 U.S. 144, 157 (1970). A fact is material if “a dispute over it might affect

the outcome of a suit under governing law; factual disputes that are ‘irrelevant or unnecessary’

do not affect the summary judgment determination.” Holcomb v. Powell, 433 F.3d 889, 895

(D.C. Cir. 2006) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)). An issue is

genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving

party.” Id. (quoting Anderson, 477 U.S. at 248). The party seeking summary judgment “bears

the heavy burden of establishing that the merits of his case are so clear that expedited action is

justified.” Taxpayers Watchdog, Inc., v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987).

FOIA cases are typically and appropriately decided on motions for summary judgment.

Brayton v. Office of the U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). Agencies bear the

10
burden of justifying withholding of any records, as FOIA requires the “strong presumption in

favor of disclosure.” Dep’t of State v. Ray, 502 U.S. 164, 173 (1991). The court therefore

analyzes all underlying facts and inferences in the light most favorable to the FOIA requester,

even where the requester has moved for summary judgment. See Pub. Citizen Health Research

Grp. v. FDA, 185 F.3d 898, 904–05 (D.C. Cir. 1999).

In cases such as this, which concern the applicability of certain FOIA exemptions,

agencies may rely on supporting declarations that are reasonably detailed and non-conclusory.

See, e.g., ACLU v. U.S. Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir. 2011); Students Against

Genocide v. Dep’t of State, 257 F.3d 828, 838 (D.C. Cir. 2001). “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, 628 F.3d at 619. “Ultimately, an

agency’s justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or

‘plausible.’” Id. (internal quotation marks omitted) (quoting Larson v. Dep’t of State, 565 F.3d

857, 862 (D.C. Cir. 2009)). However, a motion for summary judgment should be granted in

favor of the FOIA requester where “an agency seeks to protect material which, even on the

agency’s version of the facts, falls outside the proffered exemption.” Coldiron v. U.S. Dep’t of

Justice, 310 F. Supp. 2d 44, 48 (D.D.C. 2004) (quoting Petroleum Info. Corp. v. Dep’t of

Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992)).

III. DISCUSSION

A. Compliance with Local Civil Rule 7(h)

Before reaching the merits of FAS’s redactions, Calderon first argues that FAS failed to

11
comply with Local Civil Rule 7(h) in several ways, including failing to provide a concise

statement of material facts and an adequate Vaughn index.

1. Statement of Material Facts

Calderon asserts that FAS’s motion for summary judgment should be denied outright

because the Statement of Material Facts it submitted with its Motion omitted several facts on

which FAS must have relied, violating Local Civil Rule 7(h)(1) and depriving him of the ability

“to show that he has controverted this purported fact.” (Pl. Opp. at 20). The local rule states 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, which shall include references to

the parts of the record relied on to support the statement.” Local Civ. R. 7(h)(1). Plaintiff points

specifically to this court’s August 14, 2015 Minute Order, which reminded the parties “to

comply fully” with the local rule. (Pl. Opp. at 19). 3

Plaintiff notes, for example, that FAS should have included as a factual statement that the

release of information would allow competitors to copy the transaction structure. (Id.). FAS

counters that it complied fully with the rule since it submitted a Statement of Material Facts as to

which it believed there was no genuine dispute as required, there is no obligation to include legal

arguments in the statement of material facts, and moreover, agencies are frequently permitted to

rely on agency affidavits alone in FOIA cases. (Def. Rep. at 4).

In the court’s view, FAS’s submitted Statement of Material Facts is sufficient to comply

with its obligations under Local Rule 7(h)(1). Calderon was not prejudiced by any non-

compliance, as he had a full opportunity to submit his own Statement of Material Facts in

3
Noticeably absent from Calderon’s brief, however, is the fact that the court’s August 14, 2015
Order was a reprimand to Calderon himself, not FAS, for failure to comply with Local Rule 7(h),
resulting in the court striking all filed summary judgment motions and ordering re-briefing.
12
support of his cross-motion, to submit supporting declarations, and to otherwise address any

factual issues he found with FAS’s submissions. The court therefore will not deny FAS’s motion

on this ground.

Calderon further argues that FAS violated Local Civil Rule 7(h) by failing to submit a

“separate concise statement of genuine issues setting forth all material facts as to which it is

contended there exists a genuine issue necessary to be litigated” with its combined Opposition

and Reply brief. Once again, the court concludes that any perceived non-compliance with the

local rules resulted in no prejudice to Calderon, who had a full and fair opportunity to raise all

factual and legal disputes in his own briefs, statements, and declarations. Therefore, the court

declines to deny FAS’s motion on this ground as well.

2. Vaughn Index

Calderon argues that FAS’s Vaughn index is insufficient because it does not include an

explanation of the bases for any of its redactions in the responsive documents, beyond stating

which exemption it invoked, and that this deficiency is grounds to deny FAS’s motion for

summary judgment. (Pl. Opp. at 22).

The Vaughn index should be “a relatively detailed justification, specifically identifying

the reasons why a particular exemption is relevant and correlating those claims with the

particular part of a withheld document to which they apply.” Mead Data Central, Inc. v. U.S.

Dep’t of Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977). In judging the sufficiency of a Vaughn

index, “it is the function, not the form, of the index that is important.” Keys v. DOJ, 830 F.2d

337, 349 (D.C. Cir. 1987). Here, FAS’s Vaughn index includes columns for Bates numbering,

document description, document date, applicable FOIA exemption, and specific information

redacted or withheld. (See ECF No. 27-4). While the index itself does not include legal

13
justifications for applying the exemptions, the accompanying agency and submitter affidavits are

sufficiently descriptive for the court and for Calderon to understand the agency’s reasoning for

each redaction. Given the large number of documents at issue, and that the categories of

information are frequently repeated in the various documents, FAS’s decision to refrain from

repetitive and redundant explanations in its Vaughn index in favor of explaining in its submitted

declarations is satisfactory to the court. Therefore, the court rejects Calderon’s request to deny

FAS’s motion on this ground.

B. FOIA Exemption 4: Confidential Commercial Information

1. Applicable Legal Standard

FAS invokes FOIA Exemption 4, codified at 5 U.S.C. § 552(b)(4), to support the

majority of its extensive redactions. (See Second Klusaritz Decl. ¶¶ 57, 61–63). Under this

exemption, an agency need not disclose (1) trade secrets or (2) commercial or financial

information that is obtained from a person and is privileged or confidential. 5 U.S.C.

§ 552(b)(4). The purpose of this exemption is to “balance the strong public interest in favor of

disclosure against the right of private businesses to protect sensitive information.” Nat’l Parks &

Conservation Ass’n v. Morton (Nat’l Parks I), 498 F.2d 765, 768–69 (D.C. Cir. 1974). FAS does

not argue that the redacted information contains trade secrets or is privileged (Def. Mem. at 11,

14 n.2), and Calderon does not dispute that the information is commercial and was obtained from

a person (Opp. at 24). Therefore, the only disputed issue is whether the redacted information is

“confidential.”

Courts use different approaches to analyze whether information is confidential depending

on whether that information was voluntarily or involuntarily submitted. Under Exemption 4,

information that the government requires is “less rigorously protected” than information that is

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voluntarily submitted. Biles v. HHS, 931 F. Supp. 2d 211, 219 (D.D.C. 2013) (citing Critical

Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871, 878–80 (D.C. Cir. 1992) (en

banc)). The parties agree that in order to participate in the Program, the exporters were required

to provide the responsive documents and information as part of their program guarantee

application. When information is required to be submitted to the government, it is considered

confidential under FOIA if “disclosure is likely . . . (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.” Nat’l Parks I, 498 F.2d at

770. FAS argues that its application of Exemption 4 is appropriate under either prong.

2. Whether Disclosure Is Likely to Impair FAS’s Ability to Obtain Information

FAS argues that disclosure of the redacted information would likely harm its ability to

obtain this information because fewer exporters would submit guarantee applications to

participate in the GSM-102 Program. (Second Klusaritz Decl. ¶ 52). One of the objecting

submitters, Bunge, stated that it “would be forced to withdraw from participating in the GSM-

102 Program.” (Brotherton Decl. ¶ 14). Another submitter, GDC Trading, also stated that it

“will avoid such transactions” if the information is disclosed. (Del Canto Decl. ¶ 11). While that

may be true, the court is not convinced that whether private entities will participate in the GSM-

102 Program is relevant to the court’s analysis under FOIA of whether FAS will likely be

impaired in its ability to obtain information in the future from those entities that do participate.

When entities apply to FAS to take advantage of the Program’s significant economic incentives,

they will be obligated to provide the required transactional documents, and FAS has not asserted

that the quality or substance of the information provided in these required documents might be

diminished. The court therefore concludes that disclosure of the redacted information is not

15
likely to impair FAS’s ability to collect this information in the future.

3. Whether Disclosure Is Likely to Cause Substantial Competitive Harm

Under the competitive injury prong, FAS must establish that “the submitters ‘(1) actually

face competition, and (2) substantial competitive injury would likely result from disclosure.’”

Niagara Mohawk Power Corp. v. U.S. Dep’t of Energy, 169 F.3d 16, 18 (D.C. Cir. 1999)

(quoting Nat’l Parks & Conservation Ass’n v. Kleppe (Nat’l Parks II), 547 F.2d 673, 679 (D.C.

Cir. 1976)). The competitive injury must “be limited to harm flowing from the affirmative use of

the proprietary information by competitors.” Pub. Citizen Health Res. Grp. v. FDA, 704 F.2d

1280, 1291 n.30 (D.C. Cir. 1983) (emphasis in original). Moreover, a “sophisticated economic

analysis of the likely effects of disclosure” is not required. Id. at 1291 (citing Nat’l Parks II, 547

F.2d at 681). Nor must the agency “prove that substantial harm is ‘certain’ to result from

disclosure, but only that such harm is ‘likely.’” Boeing v. U.S. Dep’t of Air Force, 616 F. Supp.

2d 40, 45 (D.D.C. 2009) (citing McDonnell Douglas Corp. v. U.S. Dep’t of Air Force, 375 F.3d

1182, 1187 (D.C. Cir. 1979)). Further, the agency need only proffer evidence supporting the

existence of potential competitive injury or economic harm. Essex Electro Engineers, Inc. v.

Sec’y of Army, 686 F. Supp. 2d 91, 94 (D.D.C. 2010) (citing Gulf & W. Indus., Inc. v. United

States, 615 F.2d 527, 530 (D.C. Cir. 1979)). Evidence of actual harm need not be demonstrated.

Id. However, the agency may not simply offer the court “conclusory and generalized

allegations” of substantial competitive harm to support its redactions. Nat’l Parks II, 547 F.2d at

681. Instead, it must provide “specific factual or evidentiary material to support [its] claim that

harm is likely to result.” Boeing, 616 F. Supp. 2d at 45 (citing Nat’l Parks II, 547 F.2d at 679).

a. FAS Has Demonstrated There Is Actual Competition

FAS must first demonstrate that actual competition exists in this market. Although both

16
parties gloss over this analysis, and neither address it in their briefs, the court finds that evidence

for market competition is established in the record. (See Brotherton Decl. ¶¶ 8–10 (discussing

competitors in the market, low profit margins, and barriers to entry that prevent other

competitors from entering the market); Lillemoe Decl. ¶¶ 26–29 (discussing how he “beat

Cargill and Bunge on price” and “compete[d] in the Programs of Russia and Eurasia”)).

b. There Remain Genuine Disputes of Material Facts as to Whether
Disclosure Would Likely Cause Substantial Competitive Harm

FAS must also show that disclosure of the redacted information would likely cause

substantial competitive injury to the objecting submitters. Moreover, where, as here, there are

different types of information that FAS asserts must be withheld, then “the agency has the

burden of establishing why or how each category of [information] is likely to cause substantial

competitive harm.” Biles, 931 F. Supp. 2d at 227 (emphasis added) (citing S. Alliance for Clean

Energy v. U.S. Dep’t of Energy, 853 F. Supp. 2d 60, 73–75 (D.D.C. 2012)).

(i). FAS’s Submissions on Harms

In support of its assertion that the submitters here would likely face substantial

competitive harm, FAS submitted an affidavit from Sally A. Klusaritz (the “Second Klusaritz

Declaration”), who oversees FOIA production at FAS, as well as declarations from three of the

four exporters that objected to the disclosure: George Del Canto of GDC Trading, LLC; Karla L.

Hennessy of Cargill, Inc.; Simon Brotheron of Bunge SA; and Chris Nikkel of Bunge North

America. FAS also provided an unsworn letter from an unidentified “authorized signer” at

GSTS L.P., the fourth objecting submitter. As summarized by the Second Klusaritz Declaration,

the objecting exporters “invest considerable resources to develop relationships with buyers,

agents, suppliers, foreign banks, and other entities involved in these complicated international

trade transactions,” and disclosure “would give a knowledgeable competitor the fruits of years of

17
developed expertise.” (Second Klusaritz Decl. ¶¶ 55–56). FAS argues that for nearly all of the

different categories of information in the various types of documents, disclosure would enable

competitors to enter the market, reach out to potential importers and banks, and undercut the

prices offered by the objecting exporters, thereby causing competitive harm from losing out on

potential future transactions. (Id. ¶ 59). FAS also argues that disclosing the names of company

officials and employees “would allow competitors to contact them with more enticing

employment offers” or to ask about their business practices (id. ¶ 61(b)), and disclosing bank

account information “would subject the affected exporters to harm by competitors, which would

have information about and access to the exporters’ assets” (id. ¶ 62(e)).

For their part, the objecting exporters’ declarations paint with a similarly broad and

conclusory brush. Chris Nikkel, from Bunge North America, describes the substantial

competitive harm that Bunge would suffer if competitors were to “gain valuable insight,” “have

insight,” gain “significant insight,” “learn,” “ascertain the market activity and market share,”

gain “insights into Bunge’s capacity,” and “gain a tremendous advantage into ‘solving the

puzzle’ of a successful competitive strategy in these GSM-102 transactions.” (Nikkel Decl. ¶¶ 7,

10, 12). The most specific harm Nikkel offers is that “disclosure of the importer names would

enable Bunge’s competitors to poach Bunge’s customers without having to invest the time and

resources to develop those customers itself.” (Id. ¶ 8).

Simon Brotherton, from Bunge SA, states that Bunge would face substantial competitive

harm from disclosure because the redacted information would “give[] extensive insight,”

“provide competitors with valuable information,” “enable competitors to enter transactions

without incurring the time and costs,” “enable Bunge’s competitors to obtain, overnight, the

financing element,” give “invaluable information regarding where Bunge has determined

18
opportunities exist,” “enable competitors to ascertain the identity of the foreign bank involved in

the transaction,” “gain a significant insight,” “ascertain Bunge’s volume discounting strategy,”

and “assess Bunge’s capacity to deliver.” (Brotherton Decl. ¶¶ 15, 16, 17, 19, 20, 22).

Moreover, he asserts that disclosure of the names of Bunge employees would give competitors

“the ability to raid and hire away Bunge’s personnel”; disclosure of bank account information

“could result in efforts to fraudulently withdraw funds from accounts”; and, more generally, that

this information would enable competitors to “undermine and undercut Bunge’s contracts.” (Id.

¶¶ 18, 21, 20).

Karla Hennessy of Cargill mostly discusses how the program operates, and offers as a

specific example of substantial competitive harm that disclosure “would allow [competitors] to

unfairly compete for the registration of [its] trade flows.” (Hennessy Decl. ¶ 16).

Finally, George Del Canto, of GDC Trading, LLC, states that disclosure “would allow

competitors to piece together information,” “would [put competitors] in a position to seriously

jeopardize GDC Trading’s business,” “could [allow competitors to] use that information to

disrupt the flow of business and transactions,” “would allow such competitors to improperly gain

a strategic advantage,” “would result in a chilling effect on a party’s willingness and interest in

participating in programs such as the GSM-102 program,” would result in “immediate loss of

substantial amounts of business,” “will undoubtedly cause some of [GDC Trading’s] trading

partners to immediately cease doing business with GDC Trading,” and would allow competitors

“to unfairly undercut GDC Trading.” (Del Canto Decl. ¶¶ 5, 6, 7, 9). Further, disclosure of this

information would result in GDC Trading’s inability “to continue to operate and conduct

business as it has done for many years.” (Id. ¶ 13).

In sum, FAS argues that the general disclosure of the names and addresses of the

19
transactional parties, including foreign banks, shippers, importers, consignees, buyers, etc., as

well as the numerical information on pricing, units, weights, and amounts, would (1) provide

potential competitors in the market for GSM-102 Program transaction with unfair insight, and

(2) enable those competitors to use that insight to target banks and other parties with better offers

on price and other terms, resulting in lost future transactions for the submitters.

As an initial matter, the court notes that FAS’s submissions work to weaken its own

argument. Sally Klusaritz first states that the “underlying export transactions are based on

commercial relationships established between buyers and sellers that endure beyond a specific

transaction.” (Second Klusaritz Decl. ¶ 55). One of the Bunge submitters further explains that

exporters in the Program must “cultivate and maintain client relationships with foreign banks,”

“have the financial gravitas to move assets quickly and to hold relationships around the world,”

“have the capability to bring in a U.S. bank as part of the structured finance transaction,” and

“have the experience and expertise with the GSM-102 program to successfully operate.”

(Brotherton Decl. ¶ 10). Bunge further states that there are “high barriers to entry” in this

market. (Id.). FAS offers little explanation for how a new competitor, armed only with the

disclosed names of importers, banks, and other pricing/quantity info, would overcome these

“high barriers to entry” built into structuring these program transactions. Nor does FAS or the

submitters state that they, as existing market competitors, would use the disclosed information in

competition with each other. Therefore it is unclear to the court what entities would or could

even make use of any of the redacted information here.

(ii). Calderon’s Counter-Arguments on Harms

Unsurprisingly, Calderon asserted facts and arguments to counter those asserted by FAS

regarding the submitters’ substantive competitive harm. Yet FAS failed to dispute the vast

20
majority of Calderon’s factual assertions in its Response to Plaintiff’s Statement of Material

Facts, instead dismissing them as “not material.” (See Def. Resp. to PSMF ¶¶ 1, 5–37, 39–53,

55–105 (ECF No. 47-1)). Calderon thus requests that the court therefore deem all his facts as

admitted. However, the court declines to find that all of Plaintiff’s facts are admitted, given that

they are supported only by the declarations of Calderon himself and Brett Lillemoe.

First, Calderon argues that there can be no competitive harm from the disclosure of the

particular transactional information contained in the redacted records because those transactions

cannot be replicated. Calderon’s FOIA request was limited to transactions involving exports to

Russia, Ukraine, and Kazakhstan. He states that the banks in Russia, Kazakhstan, and Ukraine

are either defunct or no longer qualify, and these countries are either no longer part of the GSM-

102 Program or have not been used for exports in several years. (See PSMF ¶ 9). A review of

FAS’s yearly Program reports confirms Calderon’s assertion: in FY 2017, the credit allocation

for the Caucasus/Central Asia Region does not include Russia or Ukraine, only Kazakhstan, 4 but

there are no approved foreign financial institutions in Kazakhstan (nor in Russia or Ukraine). 5

Moreover, there were no program guarantees for exports to these three countries in FY 2016 or

FY 2015. 6 In FY 2014, there were no program guarantees in Kazakhstan or Ukraine, only

Russia—but halfway through the year, in July 2014, Russia was suspended from the Program as

4
https://www.fas.usda.gov/programs/export-credit-guarantee-program-gsm-102/gsm-102-
allocations.
5
https://www.fas.usda.gov/programs/export-credit-gurantee-program-gsm-102/gsm-102-
approved-financial-institutions-central-asia.
6
https://www.fas.usda.gov/sites/default/files/2016-10/2016_5.pdf (FY 2016);
https://www.fas.usda.gov/sites/default/files/2015-10/fy_2015_-_final_0.pdf (FY 2015).

21
part of U.S. sanctions. 7 FAS admits that Russia and Ukraine no longer qualify for the Program.

(Third Klusaritz Declaration ¶ 31(f)).

FAS’s submitted declarations point out that “over 98 percent” of agricultural trading

takes place outside of the GSM-102 Program, and while these countries may not qualify for the

program, “there would be ample opportunity for competitors to utilize their confidential

information to develop non-GSM-102 trade transactions.” (Id. ¶¶ 22, 31(f)). Simon Brotherton

of Bunge states that “[t]he specialist knowledge . . . is effectively the same whether done applied

to the GSM-102 program or to the wider commercial marketplace. It is therefore irrelevant

whether the GSM 102 [sic] guarantee program is currently available; Bunge may or may in the

future use its specialist knowledge to compete for the same or similar business relying on the

same parties and same or similar financial structures.” (July 2015 Brotherton Decl. ¶ 6). The

Nikkel Declaration also argues that disclosure “would not only harm Bunge in the GSM-102

program market but also in the wider commercial market because Bunge completes against the

same companies in the commercial marketplace.” (May 2015 Nikkel Decl. ¶ 12).

Notably, however, nearly all of the submitters’ discussion of harms relates specifically to

the GSM-102 program, not to outside transactions. (See, e.g., Apr. 2015 Brotherton Decl. ¶¶ 10

(“high barriers to entry into the GSM-102 program”), 12 ( disclosure would allow competitors to

“use Bunge’s information as a playbook for how to structure, operate, and deliver a GSM-102

transaction”), 15 (Bunge employs over 100 employees “dedicated to establishing and

maintaining the financing relationships necessary for the GSM-102 transactions”), 18 (Bunge

7
https://www.fas.usda.gov/sites/default/files/2014-11/fy_2014_-_final.pdf (FY 2014); Press
Release, USDA-FAS, U.S. Sanctions on Russia Include Suspension of Export Credit (July 29,
2014), https://www.fas.usda.gov/newsroom/us-sanctions-russia-include-suspension-export-
credit.
22
invested significant resources in “training its employees who work on the GSM-102 transactions

in the unique program requirements . . . given the highly specialized nature of the structured

financing involved in the GSM-102 program”)). Non-Program transactions are mentioned only

in passing, almost as an afterthought. (See, e.g., Apr. 2015 Brotherton Decl. ¶ 20 (“Knowledge

of Bunge’s pricing would allow competitors to undermine and undercut Bunge’s contracts both

in the GSM-102 program and in other commercial markets.”)). More importantly, absent from

these submissions is any declaration that the objecting submitters are actually engaged in non-

Program transactions in Russia, Ukraine, or Kazakhstan with the same transaction partners. The

only mention of such activity is a vague contemplation that the submitters “may in the future”

seek to engage in such transactions. (July 2015 Brotherton Decl. ¶ 6). In the court’s view, given

that the redacted information in these documents pertains only to transactions in these three

countries, and the alleged harm is that hypothetical competitors could offer specific transactional

partners better deals, then FAS must provide support for its argument that there will actually be

competition in these markets and that competitive harm is likely. Instead, FAS has only offered

vague and conclusory allegations about potential competition in markets other than those

relevant here.

Courts frequently hear that disclosure of information cannot cause substantial competitive

harm because that information is “stale.” See, e.g., Biles, F. Supp. 2d at 225–26; Gov’t

Accountability Project v. FDA, --- F. Supp. 3d ----, 2016 WL 4506967, at *15 (D.D.C. Aug. 26,

2016). The D.C. Circuit recognizes that “stale information is of little value.” Payne Enterprises,

Inc. v. United States, 837 F.2d 486, 494 (D.C. Cir. 1988). However, some old information can

still “retain[] its importance” in the present or in future years. Braintree Elec. Light Dep’t v. U.S.

Dep’t of Energy, 494 F. Supp. 287, 291 (D.D.C. 1980). In Calderon’s view, the redacted

23
information is not only stale, but in fact has no relevance or value to competitors because it

concerns only transactions that occurred in Russia, Ukraine, or Kazakhstan, and these countries

are no longer being used or no longer qualify for the Program.

The court agrees. While it might be true that the submitters may engage in non-Program

transactions in Russia, Ukraine, or Kazakhstan, there is simply no evidence in the record that the

submitters are presently engaged in any in these markets with these transactional partners, or

even that non-Program competitors are engaged in such transactions to take advantage of the

disclosed information. In short, there is simply no evidence that disclosure of this information

“would likely cause substantial harm to the submitters’ competitive position,” as required by the

statute. The court therefore finds that FAS has failed to satisfy its burden in applying Exemption

4 to this information. Therefore, the court will DENY FAS’s motion and GRANT Calderon’s

motion as to the names and addresses of foreign banks in Russia, Ukraine, and Kazakhstan, since

there are no banks in those countries that presently qualify for the program, and no evidence that

the submitters continue to engage in transactions with those banks or face competition in doing

so. The court will also DENY FAS’s motion and GRANT Calderon’s motion as to the names,

addresses, and contact information for all importers, buyers, consignees, letters of credit

parties/applicants, intervening purchasers, notify parties, or any other transaction parties in

Russia and Ukraine, as these countries no longer qualify for the program, and similarly there is

no evidence that the submitters continue to engage in transactions with these entities in these

countries or face competition in doing so.

Because Kazakhstan remains qualified for the program, it is at least more plausible that

the submitters may engage in Program transactions in that country and therefore disclosure of

information relating to past transactions would likely harm the submitters. However, because the

24
Program has not guaranteed exports in Kazakhstan for several years, the court concludes that

FAS has not satisfied its burden to establish that harm is likely, and there remains a genuine issue

of material fact as to whether disclosure of the names, addresses, and contact information for all

importers, buyers, consignees, letters of credit parties/applicants, intervening purchasers, notify

parties, or any other transaction parties located in Kazakhstan would likely cause the submitters

substantial competitive harm. As a result, the court will DENY both Plaintiff’s and Defendant’s

motions for summary judgment as to this information.

Calderon next argues that the information in the responsive bills of lading are not

determined competitively, because these documents are either recycled or “rented” from other

exporters in order to engage in the synthetic structured trade finance scheme described above.

He also argues that the pricing information in both the commercial invoices and the program

guarantee applications also are not competitively determined, but simply made up based on

publicly available market quotes or from a “print” of another transaction. (See PSMF ¶ 69). As

noted above, FAS does not dispute this fact, but only asserts that it is not material. (See Def.

Resp. to PSMF ¶ 69). FAS further asserts that there is no way to know from the bills of lading,

invoices, and applications whether such transactions were synthetic. Bunge states that “there is

nothing untoward about the letters of credit utilized by Bunge in the exemplar transaction[],” and

that the “trade structured finance transactions [that it] entered into leverage Bunge’s international

trade flows to generate liquidity for customers and do not involved [sic] synthetics [sic] letters of

credit.” (Dec. 2015 Brotherton Decl. ¶ 9).

The parties therefore offer differing descriptions of the program transactions and the

competitive nature of the information underlying them, which, under other circumstances could

create a genuine issue of material fact. However, Calderon’s factual assertions rely entirely on

25
his own declaration. (See PSMF ¶ 69 (citing Calderon Decl. ¶ 41)). While he states that he has

“personal knowledge about the Program and how participants in the industry use the Program,”

(id. ¶ 1), the court cannot accept that Calderon has personal knowledge of the objecting

submitters’ transactions to which he was not a party. Though Bunge, at least, disputes that it

engages in such transactions, it may be true that the submitters here engaged in the same types of

synthetic transactional scheme that Calderon engaged in, and for which he was recently indicted

and convicted. However, Calderon has not put forth sufficient or credible evidence to create a

factual dispute on this issue. As a result, the court cannot conclude that information contained in

the bills of lading, letters of credit, commercial invoices, guarantee applications, and other

documents is not confidential simply due to the synthetic nature of the transactions.

Moreover, the court does not see the utility or added benefit of in camera review. While

Calderon argued that the court could identify certain documents as synthetic based on dates,

differing parties, and certain conditions in the letters of credit, FAS countered that “standard”

transactions can appear similarly, such that even FAS personnel who work on the GSM-102

Program could not know whether the transactions were synthetic or not. The Court is not

persuaded that it would be able to discern whether a document genuine or synthetic upon an in

camera review.

Next, Calderon argues that some of the redacted information—namely the shippers,

amounts, weights, and bank information—is already in the public domain, and therefore

Exemption 4 cannot be applied to that information. See CNA Financial Corp. v. Donovan, 830

F.2d 1132, 1154 (D.C. Cir. 1987) (“To the extent that any data requested under FOIA are in the

public domain, the submitter is unable to make any claim to confidentiality—a sine qua non of

Exemption 4.”). According to Calderon, because FAS disclosed the BL numbers on each bill of

26
lading in its production of documents, then the shippers, amounts, and weights can be reverse

engineered using publicly available data in the PIERS database, which offers subscribers

information obtained from U.S. Bureau of Customs and Border Protection about exports leaving

the country. (PSMF ¶ 103). PIERS is a paid subscription service. 8 The D.C. Circuit has held

that “if the information is freely or cheaply available from other sources . . . it can hardly be

called confidential.” Worthington Compressors, Inc. v. Costle, 662 F.2d 45, 51 (D.C. Cir. 1981);

Public Citizen v. HHS, 66 F. Supp. 3d 196, 212 (D.D.C. 2014) (if “competitors can acquire the

information only at considerable cost, agency disclosure may well benefit the competitors at the

expense of the submitter,” and in that case disclosure would be improper). But Calderon offered

no information as to the cost of the PIERS service, a necessary fact in determining whether the

information “is freely or cheaply available from other sources.” In its June 10 Notice, FAS states

that it “does not know” whether all of the bills of lading information is accessible on PIERS

because “FAS, Credit Programs Division, does not subscribe to PIERS.” (ECF No. 51).

Moreover, FAS argues that if Calderon is correct that the information can be cross-referenced

and thus reverse engineered, “then there is no need for Plaintiff to seek the redacted information

through the FOIA.” (Id.).

Calderon’s Statement of Material Facts directs the court to Exhibit 30 to the Calderon

Declaration, which contains six pages, including three bills of lading (two of which have

information redacted) and what appear to be three PIERS printouts showing matching bills of

lading numbers. (See No. 41-5 at 248–54). The PIERS printouts show the name and address of

the shipper, the quantity, and the weight. (See id.). These printouts do not include other

information on the bills of lading, such as the names of consignees, the names of notify parties,

8
See https://www.ihs.com/products/piers.html.
27
or the names of company officials. Calderon stated that “under exceptional circumstances and

on a shipment-by-shipment basis [all] information [from BLs] may be withheld from disclosure,”

but offered no information as to whether this was the case for any of the responsive records at

issue. (See Opp. at 34).

The court finds that Calderon has proffered enough evidence to establish an issue of fact

as to whether the names and addresses of shippers, the quantities, and the weights of

commodities are in fact in the public domain through the PIERS database. Therefore, the court

will DENY FAS’s motion as to these three pieces of information in the responsive documents.

However, because Calderon provided the court with just two pairs of a redacted bill of lading

and a PIERS printout, has not provided any information as to the price of a PIERS subscription,

and has admitted that some the information from some exports is not recorded in PIERS, then the

court cannot determine whether the names of shippers, quantities, and weights from all of the

produced BLs are publicly available. Therefore, the court will also DENY Calderon’s motion as

to this information as there remains a genuine issue of material fact.

Calderon also states that foreign bank information may be found publicly through two

methods. First, he notes that only approved foreign banks may be used in the Program, and the

names and addresses of these approved banks are listed on the USDA website. Next, he argues

that the foreign bank involved in each transaction was already effectively disclosed because FAS

did not redact the LC Documentary Credit Numbers that correspond to each individual bank, and

“each bank has a distinctive format for such numbers . . . [so] any competitor in structured trade

finance who was active in those markets between 2004 and 2011 can readily recognize the

identity of these defunct banks.” (Pl. Rep. at 19). In its Notice, FAS responds only that it sought

the advice of a U.S. bank that participates in the GSM-102 Program and was advised that “only

28
someone who routinely works with a particular foreign bank might recognize that the bank uses

a particular methodology in assigning the documentary credit number.” (Def. Not. at 3). FAS

then chose to disclose these identifying numbers to Calderon, even though as a former Program

competitor he was likely “someone who routinely works with [the] particular foreign bank[s].”

Nevertheless, given that the court has already determined that the names and addresses of the

foreign financial institutions involved in these transactions must be disclosed, it need not analyze

disclosure based on Calderon’s public domain argument.

Calderon also raises a general “bad faith” argument by pointing out that FAS has, in the

past, not redacted the information it redacted here. 9 Plaintiff points to a spreadsheet containing

“a list of bills of lading, commodities shipped, amounts and weight, and the identities of Actual

Exporters and Consignees, used by participants across the entire Program” that FAS sent Brett

Lillemoe upon request in January 2011. (See PSMF ¶ 102). FAS does not deny that it sent this

spreadsheet, but responds that it did not contain information about the exporters involved in

transactions, only the consignees, and as such did not reveal the confidential information in the

context of actual transaction documents that Calderon currently seeks. (See Def. Rep. at 18).

Calderon also points to past FOIA requests in which FAS purportedly did not redact the same

information it redacted for him. (Opp. at 35–36). FAS responds that the information it provided

the party there, HSBC, pertained to transactions to which HSBC was a part, and so the same

competitive concerns did not exist. (Def. Rep. at 19). Ultimately, however, the court is not

9
The court is concerned that FAS chose to disclose unredacted records to Calderon for
submitters Grove Services, which did not object to disclosure, and Agritrade, which did not
respond to FAS’s outreach. To the extent that FAS relied on its own independent judgment,
rather than the wishes of the submitters, in determining which information is confidential, it is
certainly perplexing to the court why FAS would not have redacted the same information for
Grove Services and Agritrade, despite the fact that they did not object to disclosure, given that
the potential competitive harm from releasing this information should be identical.
29
convinced that it can glean anything from FAS’s past actions or selective redaction in its

document production that might impact its analysis regarding the redactions at issue in this case.

(iii). Other Information

A. Names and Contact Information of Employees and Officials

FAS argues that the names and contact information of the submitters’ employees and

officials should be redacted under Exemption 4 because competitors could reach out to these

employees and poach them or could contact them seeking to find out information about their

employers’ transactions. Though Calderon does not specifically rebut these arguments, the court

is nonetheless unconvinced that releasing this information would likely cause substantial harm to

the submitters’ competitive position. While the submitters may be concerned about competitors

giving their employees more lucrative or attractive job offers, that is a routine aspect of

competition, and is not the concern of FAS, FOIA, or this court, and therefore does not support

redaction under Exemption 4. Therefore, the court will DENY FAS’s motion and GRANT

Calderon’s motion as to the application of Exemption 4 to names and contact information of the

submitters’ employees and officials.

B. Bank Account and Tax Information

FAS redacted certain specific bank account numbers and tax ID numbers within the

documents, arguing that disclosure may place the submitters at risk for fraud or theft. The court

agrees, and will GRANT FAS’s motion and DENY Calderon’s motion as to this information.

In sum, the court finds that Exemption 4 cannot apply to the following information:

names and addresses of foreign banks in Russia, Kazakhstan, and Ukraine; names and addresses

of all importers, buyers, consignees, letters of credit parties/applicants, intervening purchasers,

notify parties, or any other transaction parties in Russia and Ukraine; names and contact

30
information for submitters’ employees and officials.

The court finds that there remains a genuine issue of material fact as to the application of

Exemption 4 to: names and addresses of all importers, buyers, consignees, letters of credit

parties/applicants, intervening purchasers, notify parties, or any other transaction parties in

Kazakhstan, due to the continuing question as to whether ongoing Program eligibility creates a

substantial risk of harm; and names and addresses of shippers, and quantity, units, amounts,

prices, and pricing mechanisms of commodities, as there remains a question as to whether this

information is in the public domain through the PIERS database.

Finally, the court finds that Exemption 4 properly applies to the submitters’ bank account

information and tax ID information included on any of the responsive documents.

C. FOIA Exemption 6: Personal Information

FAS invoked FOIA Exemption 6 to redact the names, signatures, business addresses,

business telephone numbers, and business e-mail addresses of individuals in the responsive

documents. Exemption 6 protects from disclosure “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). Agencies (and courts) must engage in a four-step analysis to determine

whether information is protected from disclosure under this exemption. First, the text of the

statute requires that the agency determine whether each document is a personnel, medical, or

“similar” file. Next, the agency must determine if the individuals identified in the documents

have a significant privacy interest in the requested information. Multi Ag Media LLC v. USDA,

515 F.3d 1224, 1229 (D.C. Cir. 2008). Third, the agency must evaluate the strength of any

potential public interest in disclosure. See NARA v. Favish, 541 U.S. 157, 172 (2004). Finally,

the agency must balance the privacy interest with the public interest and determine whether

31
disclosure “would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C.

§ 552(b)(6).

The parties agree that the responsive records here are not personnel or medical records;

they only dispute whether these are “similar files.” In this analysis, courts look “not to the nature

of the files,” but rather to “the nature of the information” at issue. N.Y. Times Co. v. Nat’l

Aeronautics & Space Admin., 920 F.2d 1002, 1006 (D.C. Cir. 1990) (en banc) (quotation marks

omitted). If the court determines that the information “applies to a particular individual,” then

the threshold for applying Exemption 6 has been met, because the term “similar files” is to be

interpreted broadly. U.S. Dep’t of State v. Wash. Post Co., 456 U.S. 595, 599–603 (1982); see

also Judicial Watch, Inc. v. FDA, 449 F.3d 141, 198–99 (D.C. Cir. 2006) (exemption 6 should be

“read . . . to exempt not just files, but also bits of personal information, such as names and

addresses”) (quoting Carter v. U.S. Dep’t of Commerce, 830 F.2d 388, 391 (D.C. Cir. 1987));

Skybridge Spectrum Found. v. FCC, No. 10-1496, 2012 WL 336160, at *16 (D.D.C. Feb. 2,

2012) (exemption 6 can be applied to “the names and personal identifying information of

officers, employees, and representatives of [competitors]”). Calderon cites Leadership Conf. on

Civil Rights v. Gonzales, 404 F. Supp. 2d 246, 256–57 (D.D.C. 2005), in which the court held

that “the names and work telephone numbers” of government employees did not fall under the

“similar files” category, finding that“[a] name and work telephone number is not personal or

intimate information, such as a home address or a social security number, that normally would be

considered protected information under FOIA Exemption 6.” However, this court concludes that

the Supreme Court and D.C. Circuit precedent on this issue clearly encompasses the information

here, which includes signatures and email addresses, and the information redacted by FAS is

sufficiently similar to personnel or medical files to meet the threshold requirement for this

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exemption.

The court must next identify whether there is a significant privacy interest and, if so, a

countervailing public interest in disclosure. FAS asserts that the “significant privacy interest” is

as follows: “Should these individuals’ names and other contact information be disclosed, they

would be subject to unwarranted contacts and solicitations about their knowledge about their

respective employers or clients, or their participation in these sensitive commercial transactions.”

(Def. Mem. at 32–33). The Supreme Court has made clear that “disclosure of a list of names and

other identifying information” does not inherently violate individuals’ privacy interest. Dep’t of

State v. Ray, 502 U.S. 164, 176 n.12 (1991). Plaintiff pushes further to argue that there can be no

privacy interest in individuals’ business information, a position that has found support in prior

district court decisions. See Washington Post Co. v. USDA, 943 F. Supp. 31, 33–35 (D.D.C.

1996) (no significant privacy interest in names and addresses because “cotton farmers can be

expected to handle solicitations from farm machine manufacturers, fertilizer and seed

companies”). Considering the statute’s concern with “clearly unwarranted invasion of personal

privacy,” the court finds that there is no significant privacy interest in individuals’ names or

business addresses, but in light of FAS’s and the submitters’ harassment concerns, there is a

privacy interest in the employees’ business e-mail addresses and business phone numbers.

The privacy interest in non-disclosure of the e-mail addresses, signatures, and phone

numbers must be weighed against the public interest in disclosure. Though the court notes that

Calderon fails to identify any specific public interest in disclosure of this information, “the only

relevant 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.’” Lepelletier v. FDIC, 164 F.3d 37,

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46 (D.C. Cir. 1999) (quoting United States Dep’t of Defense v. FLRA, 510 U.S. 487, 497 (1994)).

Calderon asserts that the general purpose of his FOIA request is to reveal that “FAS has been

permitting—if not fostering—a practice that the U.S. Attorneys [sic] Office considers to be

criminal.” (Pl. Opp. at 53). There is no logical connection between the e-mail addresses,

signatures, and phone numbers of employees at entities involved in these transactions and what

the government “is up to.” As a result, the court concludes there is virtually no public interest in

disclosure of this information.

Having determined that there is no privacy interest in employees’ names and business

addresses, the court GRANT Plaintiff’s motion and DENIES FAS’s motion with respect to

whether Exemption 6 permits these redactions. FAS is ORDERED to disclose individual names

and business addresses in the responsive documents. See Nat’l Ass’n of Retired Fed. Emps. v.

Horner, 879 F.2d 873, 874 (D.C. Cir. 1989) (“If no significant privacy interest is implicated . . . ,

FOIA demands disclosure.”). In light of the privacy interest employees have in non-disclosure

of their e-mail addresses or phone numbers, and the lack of a countervailing public interest, the

court DENIES Plaintiff’s motion and GRANTS FAS’s motion with respect to whether

Exemption 6 permits the redaction of e-mail addresses, signatures and phone numbers.

IV. CONCLUSION

For the foregoing reasons, FAS’s motion for summary judgment is GRANTED IN PART

and DENIED IN PART, and Calderon’s cross-motion for summary judgment is also GRANTED

IN PART and DENIED IN PART.

Date: February 21, 2017

Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge

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