100reporters LLC v. United States Department of Justice

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

100REPORTERS LLC, :
:
Plaintiff, : Civil Action No.: 14-1264 (RC)
:
v. : Re Document Nos.: 57, 58, 59, 62
:
UNITED STATES :
DEPARTMENT OF JUSTICE, :
:
Defendant, :
:
and :
:
SIEMENS AKTIENGESELLSCHAFT, :
THEO WAIGEL, :
:
Defendant-Intervenors. :

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART DEFENDANT-INTERVENOR THEO WAIGEL’S
MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART DEFENDANT-
INTERVENOR SIEMENS AKTIENGESELLSCHAFT’S MOTION FOR SUMMARY JUDGMENT;
GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT; DENYING PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

This matter stems from the resolution of an international investigation of the corrupt

practices of Siemens Aktiengesellschaft (“Siemens”). In 2008, Siemens pleaded guilty to a two-

count information charging the company with violating the internal controls and books and

records provisions of the Foreign Corrupt Practices Act (“FCPA”). The court imposed a fine of

$448.5 million against Siemens, and imposed smaller fines against three Siemens subsidiaries

that pleaded guilty to separate charges. Siemens also settled a parallel civil proceeding brought

by the United States Securities and Exchange Commission (“SEC”) and agreed to pay $350

million in disgorgement of profits.
 Among other things, the plea agreement resolving the criminal case required the

company to hire an independent corporate compliance monitor to ensure that Siemens

implemented an effective corporate governance system and complied with all applicable laws

and regulations. Siemens hired Dr. Theodore Waigel (the “Monitor”) to serve as the corporate

monitor. Over several years, the Monitor conducted extensive investigation, review, and

oversight of the compliance programs at Siemens. During that process, the Monitor submitted a

number of written reports to the United States Department of Justice (“DOJ”), including work

plans at the start of each year and annual reports at the conclusion of each year. DOJ and the

Monitor also exchanged other communications regarding the monitorship.

In 2013, Plaintiff 100Reporters LLC, a non-profit dedicated to investigative journalism,

submitted a Freedom of Information Act (“FOIA”) request to the DOJ seeking records related to

the monitorship. DOJ denied the request, as well as an administrative appeal. In 2014,

100Reporters brought this FOIA action before the Court. The Court later permitted Siemens and

the Monitor to intervene in this case.1 See generally 100Reporters LLC v. U.S. Dep’t of Justice,

307 F.R.D. 269 (D.D.C. 2014), ECF No. 28.

Relying on a number of exemptions to FOIA, DOJ has produced portions of redacted

documents, while withholding others in full. 100Reporters objects to those withholdings. Now

before the Court are separate motions for summary judgment filed by the Monitor, Siemens, and

DOJ, and a cross-motion for summary judgment filed by 100Reporters. See generally Monitor’s

Mot. Summ. J. (“Monitor Mot.”), ECF No. 57; Def.-Intervenor Siemens Mot. Summ. J.

(“Siemens Mot.”), ECF No. 58; Def. U.S. Dep’t Justice Mot. Summ. J. (“DOJ Mot.”), ECF No.

59; Pl.’s Mot. Summ. J. (“100Reporters Cross-Mot.”), ECF No. 62.

1
The Court will refer to Siemens and the Monitor jointly as “Defendant-Intervenors.”

2
 For the reasons explained below, the Court finds that DOJ has justified the withholding

of certain information pursuant to Exemption 4 and the attorney work-product privilege

contained in Exemption 5. The Court will grant the motions for summary judgment filed by

DOJ and Defendant-Intervenors on those issues. At this time, the Court finds that DOJ has not

justified its withholdings under the deliberative process privilege contained in Exemption 5 or

under Exemptions 6 and 7(C), and will thus deny summary judgment on those issues. The Court

will also order DOJ to produce certain representative documents for in camera review and will

deny summary judgment on the question of segregability. Finally, the Court will deny the cross-

motion for summary judgment filed by 100Reporters.

II. BACKGROUND

The Court will begin its analysis by providing an overview of the facts giving rise to this

dispute before turning to the procedural history of this litigation.

A. Siemens and the FCPA Proceedings

Siemens is a “global technology company focusing on the areas of electrification,

automation, and digitialization.” Siemens Mot., Decl. of Joel Kirsch (“Kirsch Decl.”) ¶ 2, ECF

No. 58-2. Siemens and its subsidiaries operate in 192 countries and employ roughly 348,000

people. Kirsch Decl. ¶ 2.

An international investigation of Siemens—led by U.S. and foreign law enforcement—

revealed a range of illegal conduct, including violations of anti-corruption laws and accounting

regulations committed by different Siemens business units over several years. See generally

Statement of Offense, United States v. Siemens Aktiengesellschaft, No. 08-367 (D.D.C. Dec. 15,

2008), ECF No. 15 (“Statement of Offense”). In December 2008, Siemens entered into a plea

agreement with the DOJ and a consent decree with the SEC to resolve criminal and civil

3
allegations that Siemens and some of its subsidiaries committed certain violations of the FCPA.

See Plea Agreement, United States v. Siemens Aktiengesellschaft, No. 08-367 (D.D.C. Dec. 15,

2008), ECF No. 14 (“Plea Agreement”); Consent of Defendant Siemens, SEC v. Siemens

Aktiengesellschaft, No. 08-2167 (D.D.C. Dec. 12, 2008), ECF No. 1-2 (“Consent”).2 Three

Siemens subsidiaries—based in Argentina, Bangladesh, and Venezuela—each separately pleaded

guilty to FCPA violations. See Notice Regarding Corporate Monitorship, United States v.

Siemens Aktiengesellschaft, No. 08-367 ¶¶ 1–2 (D.D.C. Dec. 18, 2012), ECF No. 23

(“Monitorship Notice”).

Under the criminal plea agreements, Siemens agreed to pay fines totaling $450 million.3

See Plea Agreement ¶ 5. Siemens also agreed to cooperate with U.S. and German law

enforcement agencies and to maintain compliance and ethics programs reasonably designed to

detect and deter violations of anti-corruption laws, including the FCPA. Plea Agreement ¶¶ 10–

11. Crucially for this case, Siemens also agreed to retain an independent monitor for a period of

up to four years to ensure that the company implemented an effective system of corporate

governance. See Plea Agreement ¶ 12. Similarly, Siemens agreed to engage a U.S. attorney,

F. Joseph Warin, to provide independent counsel to the Monitor. Plea Agreement ¶ 12. On

December 15, 2008, the court accepted Siemens’ plea and issued a sentence as set forth in the

plea agreement. The court’s Judgment explicitly required Siemens to comply with the

2
The Court notes that it “may take judicial notice of public records from other court
proceedings.” Rocha v. Brown & Gould, LLP, 101 F. Supp. 3d 52, 56 n.1 (D.D.C. 2015)
(quoting Lewis v. Drug Enf’t Admin., 777 F. Supp. 2d 151, 159 (D.D.C. 2011)), aff’d, No. 15-
7053 (D.C. Cir. Mar. 30, 2016).
3
Siemens agreed to pay a fine of $448.5 million and the three subsidiaries agreed to pay
a fine of $500,000 each. See Monitorship Notice ¶ 3.

4
compliance and ethics program in the plea agreement. See Judgment, United States v. Siemens

Aktiengesellschaft, No. 08-367 at 4 (D.D.C. Dec. 30, 2008), ECF No. 17.

As part of the universal resolution, Siemens also reached a settlement of the parallel civil

complaint filed by the SEC. The SEC alleged that Siemens “engag[ed] in a widespread and

systematic practice of paying bribes to foreign government officials to obtain business.” Compl.,

SEC v. Siemens Aktiengesellschaft, No. 08-2167 (D.D.C. Dec. 15, 2008) ¶ 1, ECF No. 3 (“SEC

Compl.”). More specifically, the SEC alleged that Siemens made at least 4,283 payments

totaling $1.4 billion to bribe foreign officials. See SEC Compl. ¶ 2. The SEC also alleged,

among other things, that Siemens paid kickbacks to Iraqi ministries in connection with the sales

of power equipment to Iraq under the United Nations Oil-for-Food Program. See SEC Compl.

¶ 2. Siemens settled the civil suit without admitting or denying the allegations of the complaint.

See DOJ Mot., Decl. of Tracy Price (“Price Decl.”) ¶ 3, ECF No. 59-8. The final judgment did,

however, enjoin Siemens from violating the FCPA and ordered Siemens to disgorge $350

million in profits. See Final Judgment, SEC v. Siemens Aktiengesellschaft, No. 08-2167, §§ I, V

(D.D.C. Dec. 18, 2008), ECF No. 4 (“Final Judgment”); Price Decl. ¶ 3. Siemens also agreed to

engage an independent monitor, see Final Judgment § IV, and SEC staff understood that Siemens

would hire the same monitor to carry out the requirements of the civil settlement and the criminal

plea agreement, see Price Decl. ¶ 4.

B. The Monitorship

As required by the civil settlement and the criminal plea agreement, Siemens engaged Dr.

Theo Waigel to serve as the independent corporate monitor. See Plea Agreement ¶ 12; Consent

¶ 3. The terms of the plea agreement called on the Monitor to evaluate:

the effectiveness of the internal controls, record-keeping and financial reporting
policies and procedures of Siemens as they relate to Siemens’ current and ongoing

5
 compliance with . . . provisions of the FCPA and other applicable anti-corruption
laws . . . and take such reasonable steps as, in his or her view, may be necessary to
fulfill the foregoing mandate.

Statement of Offense, Attach. 2 ¶ 1.

In furtherance of the Monitor’s mandate, DOJ required that Siemens provide the Monitor

with broad access to Siemens’ confidential and commercially-sensitive information, documents,

and records. See Statement of Offense, Attach. 2 ¶ 2. DOJ also expressly authorized Siemens to

share privileged information with the Monitor subject to a non-waiver of privilege arrangement.

See Statement of Offense, Attach. 2 ¶ 2(b). Similarly, Siemens was obligated to ensure that the

Monitor could inspect all relevant documents, conduct on-site observations of Siemens’ internal

controls and internal audit procedures, meet with and interview employees, officers, and

directors, and analyze and test Siemens’ compliance programs and controls. See Statement of

Offense, Attach. 2 ¶ 7.

Further, the plea agreement directed the Monitor to conduct an initial review of Siemens’

anti-corruption compliance program and to prepare an initial report, followed by up to three

subsequent reviews and reports. See Statement of Offense, Attach. 2 ¶ 3. The reports would

“set[] forth the Monitor’s assessment and mak[e] recommendations reasonably designed to

improve the effectiveness of Siemens’ program for ensuring compliance with the anti-corruption

laws.” Statement of Offense, Attach. 2 ¶ 4. The agreement set forth a process for Siemens to

adopt or contest the Monitor’s recommendations. See Statement of Offense, Attach. 2 ¶ 5. The

agreement also called for the Monitor to undertake up to three annual follow-up reviews, and, at

the conclusion of each follow-up review, to “certify whether the compliance program of

Siemens, including its policies and procedures, [was] reasonably designed and implemented to

detect and prevent violations within Siemens of the anti-corruption laws.” Statement of Offense,

Attach. 2 ¶ 6.

6
 Finally, the agreements directed the Monitor to provide regular communications to the

DOJ and the SEC by requiring the Monitor to submit a work plan to the agencies for comment

prior to each year of the monitorship, see Statement of Offense, Attach. 2 ¶ 3, to provide the

agencies with the Monitor’s written reports following completion of each annual review cycle,

see Statement of Offense, Attach. 2 ¶ 4, and to report any significant improper activities or

violations of law discovered during the monitorship, see Statement of Offense, Attach. 2 ¶ 8.

Although the plea agreement contemplated a four-year term for the monitorship, the agreement

also provided that the term could be shortened or lengthened at the discretion of DOJ. See

Statement of Offense, Attach. 2 ¶ 6.

The Monitor ultimately conducted four annual reviews and documented his findings and

recommendations in four reports dated October 5, 2009; October 13, 2010; October 7, 2011; and

October 12, 2012. See Monitorship Notice ¶ 7. These written reports each reached “several

hundred pages, with numerous footnotes and extensive appendices.” See Monitor Mot., Decl. of

F. Joseph Warin (“Warin Decl.”) ¶ 20, ECF No. 57-2. During the four-year monitorship, “the

Monitor made a total of 152 recommendations in over a dozen topic areas, such as third-party

risks, financial controls, and compliance policies and training that . . . were ‘reasonably designed

to improve the effectiveness of Siemens’ program for ensuring compliance with the anti-

corruption laws.’” Monitorship Notice ¶ 8 (quoting Statement of Offense, Attach. 2 ¶ 4).

Siemens adopted all 152 recommendations. See Monitorship Notice ¶ 8. During the

monitorship, the Monitor held annual meetings with the government “to review the findings and

recommendations in the Monitor’s annual reports.” Monitorship Notice ¶ 10.

The Monitor created a wide range of written submissions and communications during the

monitorship. The Monitor breaks these materials into five categories:

7
  First, a written work plan for each year of the monitorship, including
associated documents and communications. See Warin Decl. ¶ 25(a); see
also DOJ Mot., Decl. of Joey Lipton (“Lipton Decl.”) ¶ 5, ECF No. 59-7;
Price Decl. ¶¶ 6, 9.

 Second, materials associated with in-person meetings between the
Monitor and the DOJ and SEC for each year that work plans were
reviewed and discussed. See Warin Decl. ¶ 25(b); see also Lipton Decl.
¶ 5; Price Decl. ¶ 9.

 Third, the Monitor’s written report for each year of the monitorship,
including associated documents and communications. See Warin Decl.
¶ 25(c); see also Lipton Decl. ¶ 5; Price Decl. ¶¶ 6, 9.

 Fourth, materials associated with in-person meetings between the Monitor
and the DOJ and SEC for each year that the Monitor’s yearly review and
resulting report were discussed. See Warin Decl. ¶ 25(d); see also Lipton
Decl. ¶ 5; Price Decl. ¶ 9.

 Fifth, consultative communications between the Monitor and his
independent U.S. counsel and attorneys from the DOJ Fraud Section. See
Warin Decl. ¶ 25(e); see also Lipton Decl. ¶¶ 5–6, 9; Price Decl. ¶ 9.

After four years, DOJ authorized the termination of the monitorship, concluding that

Siemens had “satisfied its obligations under the plea agreement with respect to the corporate

compliance monitorship.” Monitorship Notice ¶ 11. DOJ specifically determined that Siemens

had granted the Monitor broad access to its documents, projects, and employees:

Over the course of those four years, the Monitor conducted on-site or remote
reviews of Siemens’ activities in 20 countries; conducted limited or issue-specific
reviews in or relating to an additional 19 countries; reviewed over 51,000
documents . . . ; conducted interviews of or meetings with 2,300 Siemens
employees; observed over 180 regularly scheduled company events; and spent the
equivalent of over 3,000 auditor days conducting financial studies and testing.

Monitorship Notice ¶ 7.

C. Plaintiff’s FOIA Request

100Reporters is a non-profit news organization dedicated to investigative reporting. See

Compl., Ex. D at 1–2, ECF No. 1-4. On July 23, 2013, Marjorie Valbrun, a reporter for

100Reporters, submitted a FOIA request to DOJ seeking records related to the investigation of

8
Siemens. See Compl., Ex. D at 1. Ms. Valbrun specifically requested “copies of the Corporate

Compliance statements that Siemens has filed with the DOJ under the terms of the compliance

agreement outlined in the . . . ‘Statement of Offense.’” Compl., Ex. D at 1. The FOIA request

also asks for “all relevant documents related to the DOJ Monitor’s evaluation of the effectiveness

of the internal controls, record-keeping and financial reporting policies and procedures of

Siemens,” as well as all documents related to the “[s]teps the Monitor has taken to confirm

compliance by Siemens” and “[i]nitial and follow-up reviews of Siemens conducted by the

Monitor under the agreement.” Compl., Ex. D at 1.

DOJ responded on August 9, 2013 and stated that it would extend the time limit to

respond because the request presented “unusual circumstances” as defined in 5 U.S.C.

§ 552(a)(6)(B)(i)–(iii). See Compl., Ex. E at 1, ECF No. 1-5. Then, in a one-page letter dated

January 6, 2014, DOJ refused to produce any responsive records. See Compl., Ex. F at 1, ECF

No. 1-6. DOJ explained that it had determined that “all responsive records are exempt from

disclosure pursuant to Exemption 7(A), which permits withholding records or information

complied for law enforcement purposes when disclosure could reasonably be expected to

interfere with enforcement proceedings.” Compl., Ex. F at 1. Ms. Valbrun and 100Reporters

filed an administrative appeal on February 20, 2014. See generally Compl., Ex. G, ECF No. 1-7.

The administrative appeal also narrowed the FOIA request to six categories of documents:

1. Copies of Corporate Compliance Statements that Siemens has filed with the
DOJ under the terms of the compliance agreement outlined in the 2008
“Statement of Offense” (the “Compliance Agreement”) filed in the U.S. District
Court for the District of Columbia (United States v. Siemens Aktiengesellschaft,
No. 1:08-cr-00367-RJL (D.D.C. 2008));

2. Any and all documents related to the DOJ Monitor’s evaluation of the
effectiveness of the internal controls, record-keeping and financial reporting
policies and procedures of Siemens, under the Compliance Agreement, as they
relate to Siemens’ current and ongoing compliance with the books and records,

9
 internal accounting controls and anti-bribery provisions of the FCPA and other
applicable anti-corruption laws;

3. Any and all documents and related steps the DOJ Monitor has taken to confirm
compliance by Siemens;

4. Any and all information, records, facilities and/or employees requested by the
DOJ Monitor that fall within the scope of the “Mandate of the Monitor” under the
Compliance Agreement;

5. Any and all initial and follow-up reviews of Siemens conducted by the DOJ
Monitor under the Compliance Agreement, written reports about the reviews, and
compliance work plans prepared by the DOJ Monitor, in consultation with
Siemens AG and the DOJ, and submitted to the DOJ for comment; and,

6. Any and all disclosures by Siemens to the DOJ Monitor concerning corrupt
payments and related books, records, and internal controls.

Compl., Ex. G at 2.

On April 22, 2014, DOJ affirmed the denial of the FOIA request in a brief letter. See

Compl., Ex. H, ECF No. 1-8. The denial of the administrative appeal again relied on Exemption

7(A). See Compl., Ex. H at 1.

D. Procedural History of this Action

100Reporters brought this lawsuit against DOJ seeking to compel the production of

documents that are responsive to its FOIA request. See generally Compl., ECF No. 1. DOJ filed

an Answer to 100Reporters’ Complaint. See generally Answer, ECF No. 11. DOJ raised one

affirmative defense—that the requested documents were exempt from disclosure under FOIA.

See Answer at 6. DOJ again relied on Exemption 7(A), but also raised numerous other FOIA

exemptions for the first time, including Exemption 4, Exemption 5, Exemption 6, Exemption 7(C),

and Exemption 7(D).4 See Answer at 6.

4
At this stage in the litigation, DOJ and Defendant-Intervenors do not rely on Exemption
7(A) or 7(D).

10
 Soon after DOJ filed its Answer, Siemens and the Monitor filed separate motions to

intervene in this action. See Siemens Mot. Intervene, ECF No. 13; Monitor Mot. Intervene, ECF

No. 17. The Court granted both motions on December 3, 2014. See generally 100Reporters

LLC v. U.S. Dep’t of Justice, 307 F.R.D. 269 (D.D.C. 2014).

On March 30, 2015, DOJ produced responsive documents to 100Reporters for the first

time. See DOJ Mot., Decl. of Suzanna Moberly (“Moberly Decl.”) ¶ 19, ECF No. 59-3. The

production included two videos and 17 pages of documents. See Moberly Decl. ¶ 19. Several

months later, DOJ provided 100Reporters, Siemens, and the Monitor with a Vaughn index for

the remaining withheld documents on October 15, 2015. See Def.’s Notice of Compliance, ECF

No. 47. DOJ later released a second set of documents on December 4, 2015, totaling 101 pages

of records released in full and 348 pages released in part. See Moberly Decl. ¶ 19; see also

Status Report & Proposed Briefing Schedule at 2, ECF No. 49 (“Federal Defendant provided

Plaintiff with some of the documents previously withheld entirely, largely redacted on December

4, 2015.”). At that time, DOJ continued to withhold in full six video presentations and 4,293

pages of documents. See Moberly Decl. ¶ 19. DOJ submitted an Amended Vaughn Index with

its motion for summary judgment filed on March 22, 2016. See Moberly Decl., Ex. F. (“Am.

Vaughn Index”), ECF No. 59-4.

Now pending before the Court are four motions for summary judgment. DOJ, Siemens,

and the Monitor each filed a motion for summary judgment on March 22, 2016. See Monitor

Mot.; Siemens Mot.; DOJ Mot. Then, 100Reporters filed a cross-motion for summary judgment

on April 22, 2016. See 100Reporters Cross-Mot.

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 III. LEGAL STANDARD

A. The Freedom of Information Act

Congress enacted FOIA so that citizens could discover “what their government is up to.”

U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989)

(quoting EPA v. Mink, 410 U.S. 73, 105 (1973) (Douglas, J. dissenting)). “[D]isclosure, not

secrecy, is the dominant objective of [FOIA].” U.S. Dep’t of the Air Force v. Rose, 425 U.S.

352, 361 (1976). After an agency receives a request that “reasonably describes” records being

sought, 5 U.S.C. § 552(a)(3)(A), the agency must “conduct[] a search reasonably calculated to

uncover all relevant documents.” Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1351 (D.C.

Cir. 1983). Then, FOIA requires the agency to disclose responsive records revealed by the

search, unless one of FOIA’s nine statutory exemptions apply to material in the records. See 5

U.S.C. § 552(b); see also Elliot v. U.S. Dep’t of Agric., 596 F.3d 842, 845 (D.C. Cir. 2010)

(“[A]gencies may withhold only those documents or portions thereof that fall under one of nine

delineated statutory exemptions.”). The nine FOIA “exemptions are ‘explicitly exclusive.’”

U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 151 (1989) (quoting FAA Adm’r v.

Robertson, 422 U.S. 255, 262 (1975)). And it is the agency’s burden to show that withheld

material falls within one of these exemptions. See 5 U.S.C. § 552(a)(4)(B); see also Elliott, 596

F.3d at 845.

B. Summary Judgment

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

Defs. of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009) (citing Bigwood v.

U.S. Agency for Int’l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007)). In general, summary

judgment is appropriate where “the movant shows that there is no genuine dispute as to any

12
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

A “material” fact is one capable of affecting the substantive outcome of the litigation. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if there is

enough evidence for a reasonable jury to return a verdict for the non-movant. See Scott v.

Harris, 550 U.S. 372, 380 (2007).

When assessing a summary judgment motion in a FOIA case, a court makes a de novo

assessment of whether the agency has properly withheld the requested documents. See 5 U.S.C.

§ 552(a)(4)(B); Judicial Watch v. U.S. Dep’t of Homeland Sec., 598 F. Supp. 2d 93, 95 (D.D.C.

2009). To prevail on a motion for summary judgment, “the defending agency must prove that

each document that falls within the class requested either has been produced, is unidentifiable or

is wholly exempt from the Act’s inspection requirements.” Weisberg, 627 F.2d at 368 (quoting

Nat’l Cable Television Ass’n v. FCC, 479 F.2d 183, 186 (D.C. Cir. 1973)).

To meet its burden, a defendant may rely on declarations that are “relatively detailed and

non-conclusory.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting

Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)). The agency’s

justification is typically contained in a declaration or affidavit, referred to as a “Vaughn index”

after the case Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). A court will presume that an

agency’s affidavits or declarations are submitted in good faith. See SafeCard Servs., 926 F.2d at

1200. The purpose of a Vaughn index is “to permit adequate adversary testing of the agency’s

claimed right to an exemption,” Nat’l Treasury Emps. Union v. U.S. Customs Serv., 802 F.2d

525, 527 (D.C. Cir. 1986) (citing Mead Data Cent., Inc. v. U.S. Dep’t of the Air Force, 566 F.2d

242, 251 (D.C. Cir. 1977)), and therefore the index must contain “an adequate description of the

13
records” and “a plain statement of the exemptions relied upon to withhold each record,” id. at

527 n.9.

“Ultimately, an agency’s justification for invoking a FOIA exemption is sufficient if it

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

Gardels v. CIA, 689 F.2d 1100, 1105 (D.C. Cir. 1982)). Generally, a reviewing court should

“respect the expertise of an agency” and not “overstep the proper limits of the judicial role in

FOIA review.” Hayden v. Nat’l Sec. Agency/Cent. Sec. Serv., 608 F.2d 1381, 1388 (D.C. Cir.

1979). Nonetheless, “exemptions from disclosure must be narrowly construed . . . and

conclusory and generalized allegations of exemptions are unacceptable.” Morley v. CIA, 508

F.3d 1108, 1114–15 (D.C. Cir. 2007) (internal citation and quotation marks omitted).

IV. ANALYSIS

As DOJ correctly notes, 100Reporters has made no objection to the sufficiency of DOJ’s

search for responsive documents. See Def. U.S. Dep’t Justice’s Combined Reply & Opp’n

(“DOJ Reply”) at 31 n.13, ECF No. 72; see also Mem. P. & A. Supp. U.S. Dep’t Justice’s Mot.

Summ. J. (“DOJ Mem.”) at 37–38, ECF No. 59-2 (describing DOJ’s search and arguing that it

was adequate).5 Similarly, neither DOJ nor Defendant-Intervenors have disputed 100Reporters’

assertion that it exhausted its administrative remedies, as required by FOIA. See Compl. ¶ 4; see

generally DOJ Mem. (failing to raise issue of exhaustion); Mem. P. & A. Supp. Monitor’s Mot.

Summ. J. (“Monitor Mem.”), ECF No. 57-1 (same); Mem. P. & A. Supp. Siemens’ Mot. Summ.

J. (“Siemens Mem.”), ECF No. 58-1 (same). The only issue before the Court is whether DOJ’s

decision to withhold certain responsive material was appropriate.

5
DOJ subsequently filed a corrected brief, but states that the changes are cosmetic in
nature. See Not. Corrected Mem. P. & A. Supp. U.S. Dep’t Justice’s Mot. Summ. J., ECF No. 61.

14
 Specifically, DOJ continues to withhold certain documents—some in part and some

entirely—pursuant to FOIA Exemptions 4, 5, 6, and 7(C), and 100Reporters argues that DOJ

fails to show that it properly withheld information under those provisions. For reasons explained

below, the Court finds that DOJ has justified the withholding of certain information pursuant to

Exemption 4 and the attorney work-product privilege contained in Exemption 5. The Court will

grant the motions for summary judgment filed by DOJ and Defendant-Intervenors on those

issues. At this time, the Court finds that DOJ has not justified its withholdings under the

deliberative process privilege contained in Exemption 5 or under Exemptions 6 and 7(C), and

will thus deny summary judgment on those issues. The Court will also order DOJ to produce

certain representative documents for in camera review and will deny summary judgment on the

question of segregability. Finally, the Court will deny the cross-motion for summary judgment

filed by 100Reporters.

A. Exemption 4

Pursuant to FOIA Exemption 4, “trade secrets and commercial or financial information

obtained from a person” that are “privileged or confidential” may be withheld from disclosure.6

5 U.S.C. § 552(b)(4). Both DOJ and Siemens argue that the Exemption 4 withholdings are

proper. See Siemens Mem. at 12–26; DOJ Mem. at 21–35. The Monitor has not presented any

argument on this point, but “joins in and incorporates by reference the arguments by the DOJ and

Siemens in their separate motions for summary judgment and related papers.” Monitor Mot.

at 2 n.1. In response, 100Reporters argues that DOJ has failed to carry its burden of establishing

that the withholdings are proper. See Pl.’s Consolidated Opp’n & Mem. Supp. Pl.’s Cross-Mot.

Summ. J. (“100Reporters Mem.”) at 11–28, ECF No. 62.

6
No party asserts that the withheld information constitutes a trade secret.

15
 An agency may rely on Exemption 4 if it can bear the burden of establishing that

withheld materials are “(1) commercial or financial, (2) obtained from a person, and (3)

privileged or confidential.” Pub. Citizen Health Research Grp. v. FDA, 704 F.2d 1280, 1290

(D.C. Cir. 1983). The parties have not disputed that the materials at issue in this case were

“obtained from a person,” and FOIA defines person broadly to “include[] an individual,

partnership, corporation, association, or public or private organization other than an agency.”

5 U.S.C. § 551(2); see also Judicial Watch, Inc. v. Exp.-Imp. Bank, 108 F. Supp. 2d 19, 28

(D.D.C. 2000) (“[T]he term ‘person’ in the context of Exemption 4 applies to a wide range of

entities . . . . ”). Nor have the Defendant-Intervenors or DOJ claimed that the withheld

documents are “financial.” See generally DOJ Mem.; Monitor Mem.; Siemens Mem.

Thus, the Court’s analysis will focus on the first and third prongs of the test. The Court

will consider whether three categories of withheld documents described below contain

information that is “commercial” and whether that information is also “privileged or

confidential.” The Court will address these two questions in turn.

1. Sufficiency of Showing that Withheld Documents Are “Commercial”

In the context of Exemption 4, the D.C. Circuit explained that courts should give the

terms “commercial” and “financial” their ordinary meanings. See Pub. Citizen Health Research

Grp., 704 F.2d at 1290; see also Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26, 38 (D.C.

Cir. 2002). Withheld “information is commercial under this exemption if, in and of itself, it

serves a commercial function or is of a commercial nature.” Nat’l Ass’n of Home Builders, 309

F.3d at 38 (internal quotation marks and citations omitted).

Therefore, “records that actually reveal basic commercial operations, such as sales

statistics, profits and losses, and inventories, or relate to the income-producing aspects of a

16
business,” fall within the scope of “commercial” information. See Pub. Citizen Health Research

Grp., 704 F.2d at 1290. Courts have identified a range of information that plainly falls within

this scope. For example, records containing information on “revenue, net worth, income, and

EBITDA” are commercial. See Kahn v. Fed. Motor Carrier Safety Admin., 648 F. Supp. 2d 31,

36 (D.D.C. 2009). Courts have also upheld the withholding of loan application information, see

Rural Hous. All. v. U.S. Dep’t of Agric., 498 F.2d 73, 79 (D.C. Cir. 1974), and customer lists, see

Greenberg v. FDA, 803 F.2d 1213, 1216 (D.C. Cir. 1986).

However, in the context of Exemption 4, the term commercial “is not confined only to

records that ‘reveal basic commercial operations . . . or relate to the income-producing aspects of

a business.’” Baker & Hostetler LLP v. U.S. Dep’t of Commerce, 473 F.3d 312, 319 (D.C. Cir.

2006) (quoting Pub. Citizen Health Research Grp., 704 F.2d at 1290). Instead, the D.C. Circuit

has instructed that the exemption “reaches more broadly and applies (among other situations)

when the provider of the information has a commercial interest in the information submitted to

the agency.” Id. Using that definition, the D.C. Circuit held that letters describing market

conditions for domestic lumber companies “plainly contain commercial information within the

meaning of Exemption 4.” Id. at 320. In another case, the D.C. Circuit found that

“documentation of the health and safety experience of [a company’s] products” was commercial

because such documentation was “instrumental in gaining marketing approval for their

products.” Pub. Citizen Health Research Grp., 704 F.2d at 1290.

Siemens argues that the information at issue here is “plainly commercial.” Siemens

Mem. at 13, 15. Siemens particularly relies on Public Citizen v. United States Department of

Health & Human Services (Public Citizen I), 975 F. Supp. 2d 81 (D.D.C. 2013) and Public

Citizen v. United States Department of Health & Human Services (Public Citizen II), 66 F. Supp.

17
3d 196 (D.D.C. 2014). That litigation involved two pharmaceutical companies that resolved

civil and administrative fraud cases with the U.S. Department of Health and Human Services by

entering into Corporate Integrity Agreements. Pub. Citizen I, 975 F. Supp. 2d at 88. Among

other requirements, the agreements called for an independent party, called an Independent

Review Organization, to submit annual reports, which included “extensive, probing review of

[the companies’] confidential business systems and policies, as well as selected samples of

individual transactions,” and “contained such information as the identity of customers and the

underlying business practices that gave rise to the need for corrective action.” Id. at 108. As

Siemens correctly notes, the court determined that the reports prepared by the independent party

“include extensive information about the defendant-intervenors’ marketing and sales programs

and contracting processes, and, consequently, are commercial.” Id. at 109.

Pointing to the Public Citizen I and Public Citizen I cases, Siemens argues that (1) the

Monitor’s annual reports and related documents, (2) the Monitor’s work plans and related

documents, and (3) Siemens’ internal trainings, presentations, and compliance policies all

constitute commercial information. See Siemens Mem. at 15–16. DOJ states that it joins in

Siemens’ argument and briefly makes its own argument that the withheld materials are

commercial in nature. See DOJ Mem. at 23 & n.10.

100Reporters does not dispute the standard used to analyze whether material is

commercial. Instead, 100Reporters takes issue with the rationales DOJ has put forward in

support of its withholdings. 100Reporters contends that “DOJ fails to carry its burden . . .

because it has provided only insufficient, non-specific claims of an asserted right to withhold.”

100Reporters Mem. at 12. 100Reporters argues that the Exemption 4 withholdings are not

supported by “any serious explanation as to the commercial or financial character of the material

18
[DOJ] refuses to disclose.” 100Reporters Mem. at 13. Finally, 100Reporters asserts that DOJ’s

Amended Vaughn Index relies on boilerplate justifications for withholdings, as well as

“repetitive, conclusory assertions that bear little relation to the details of the associated

documents.” 100Reporters Mem. at 14.

As an initial matter, 100Reporters’ attack on the form of the Amended Vaughn Index and

the accompanying affidavits, standing alone, is insufficient to defeat DOJ’s and Siemens’ claims

that the materials at issue are commercial. To be sure, 100Reporters is correct that FOIA

requires the government to bear the burden of establishing the applicability of an exemption. See

Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 861 (D.C. Cir. 1980) (“[T]he burden

is on [the agency] to establish [its] right to withhold information from the public . . . .”). To carry

that burden, the agency “must provide 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 Cent., Inc. v. U.S.

Dep’t of the Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977). This requirement does not mean,

however, that an agency can never rely on repetitive language. The D.C. Circuit has recognized

that, in certain cases, “categorization and repetition provide efficient vehicles by which a court

can review withholdings that implicate the same exemption for similar reasons.” Judicial Watch,

Inc. v. FDA, 449 F.3d 141, 147 (D.C. Cir. 2006). In fact, “particularity may actually impede

court review” in those cases. Id. Nor is there necessarily any problem with an agency’s Vaughn

index tracking the statutory language of the relevant exemption. See Landmark Legal Found. v.

IRS, 267 F.3d 1132, 1138 (D.C. Cir. 2001).

In short, 100Reporters’ challenges are not sufficient to defeat DOJ’s withholdings on

their face. The Court’s analysis of a Vaughn index is functional in nature. See Judicial Watch,

19
Inc., 449 F.3d at 148. The D.C. Circuit has made clear that “materials provided by the agency

may take any form so long as they give the reviewing court a reasonable basis to evaluate the

claim of privilege.” Gallant v. NLRB, 26 F.3d 168, 173 (D.C. Cir. 1994) (quoting Delaney,

Migdall & Young, Chartered v. IRS, 826 F.2d 124, 128 (D.C. Cir. 1987)). Therefore, the Court

will consider DOJ’s Amended Vaughn Index, the declaration provided by DOJ, and the

declarations provided by Defendant-Intervenors, taken together, to determine whether the

withheld materials are commercial for the purposes of Exemption 4. The Court will evaluate

three categories of documents in turn.

a. Annual Monitor Reports and Associated Documents

First, the Court considers the Monitor’s annual reports and associated documents,

including presentations summarizing the reports and communications related to the reports. The

Court finds that this category of documents contains commercial information.

DOJ’s declarant, Ms. Moberly, asserts that all of the information withheld under

Exemption 4 “is ‘commercial’ . . . because it serves a commercial function and is of a

commercial nature, and Siemens has a commercial interest in the information in that is helpful or

instrumental to its business interests.” Moberly Decl. ¶ 22. This conclusory statement, which

refers to all of the Exemption 4 withholdings, is not dispositive on its own. But additional

evidence does support a finding that the annual monitor reports and associated materials contain

commercial information. Other declarations make clear that the Monitor’s annual reports and

associated documents include probing reviews of Siemens’ business systems and practices. See

Kirsch Decl. ¶ 17; Warin Decl. ¶ 25(c). Among other things, the reports describe and evaluate

Siemens’ compliance programs, including references to finance functions, mergers and

acquisitions practices, and sales and marketing. See Kirsch Decl. ¶ 18. The reports also detail

20
actual “country operations, projects, contracts, and bids.” Kirsch Decl. ¶ 19. More specifically,

the annual reports “include observations and assessments with respect to particular M&A

transactions” and “identif[y] . . . particular Siemens business partners and provide[] Siemens’

assessment of the same.” Kirsch Decl. ¶ 20(d), (f).

These descriptions of the information contained in the Monitor’s annual report and

associated materials are sufficiently detailed to show that these materials, at the least, describe

specific transactions, projects, bids, and business partners. Thus, the Court concludes that the

records “actually reveal basic commercial operations” and “relate to the income-producing

aspects of a business,” and therefore contain “commercial” information for the purposes of

Exemption 4. See Pub. Citizen Health Research Grp., 704 F.2d at 1290; see also Pub. Citizen I,

975 F. Supp. 2d at 108 (finding that IRO reports are commercial because they include

information on “marketing and sales programs and contracting processes”).

b. Monitor Work Plans and Associated Documents

Second, the Court considers the Monitor’s work plans and related presentations and

documents. The Court finds that this category of documents also contains information that is

commercial in nature.

These documents set forth the steps the Monitor planned to take to evaluate Siemens’

compliance programs. See Kirsch Decl. ¶ 22; Warin Decl. ¶ 25(a). Among other things, the

documents set forth “Siemens’ operations, contracts, projects, and bids that the Monitor intended

to review.” See Kirsch Decl. ¶ 22. The documents also reflect “Siemens’ business operations,

structure, and compliance controls.” See Kirsch Decl. ¶ 24. The Amended Vaughn Index

provides some additional details. For example, the Monitor’s first work plan describes “the

number of Siemens employees in each country, new orders, new government orders, joint

21
ventures and business partnerships, and Siemens’ business development strategy across different

sectors of the economy.” DOJ_0000001, Am. Vaughn Index at 18.

The description of the subject matter of this category of withheld information is

sufficiently specific to demonstrate that these materials pertain to business operations, including

compliance programs, business partnerships, and order data. Therefore, the Court finds that this

information, which “relate[s] to the income-producing aspects of a business,” is “commercial”

for the purposes of Exemption 4. See Pub. Citizen Health Research Grp., 704 F.2d at 1290.

c. Siemens Trainings, Compliance Policies, and Associated Documents

Third, the Court considers Siemens’ internal compliance policies, training presentations,

training modules, and other related materials. The Court finds that this category of documents

also contains information that is commercial in nature.

These materials include information pertaining to internal training presentations for

Siemens’ employees covering the company’s compliance programs and policies. See Kirsch

Decl. ¶ 25. These materials also include “compliance policies and circulars,” which discuss

“internal regulations governing Siemens’ interactions with third parties, reporting of compliance

violations, and corporate discipline.” Kirsch Decl. ¶ 27.

These compliance and training materials do not appear to directly “relate to the income-

producing aspects of a business.” See Pub. Citizen Health Research Grp., 704 F.2d at 1290.

But the D.C. Circuit has instructed that the exemption “reaches more broadly and applies (among

other situations) where the provider of the information has a commercial interest in the

information submitted to the agency.” Baker & Hostetler LLP v. U.S. Dep’t of Commerce, 473

F.3d 312, 319 (D.C. Cir. 2006). Information that is “instrumental” to a commercial interest is

sufficiently commercial for the purposes of Exemption 4. See Pub. Citizen Health Research

22
Grp., 704 F.2d at 1290. In Public Citizen II, the court concluded that information about “the way

the companies implement their compliance programs” was “sufficiently ‘instrumental’ to the

companies’ operations to qualify as ‘commercial.’” 66 F. Supp. 3d at 208. That logic is

persuasive here. Because the compliance and training documents include information that is

instrumental to Siemens’ operations, the Court finds that the information is “commercial” for the

purposes of Exemption 4.

* * *

Thus, the Court finds that DOJ, relying in part on the declarations provided by Siemens

and the Monitor, has met its burden of showing that each of the three categories of documents

withheld pursuant to Exemption 4 are “commercial.” Next, the Court will turn to the second

prong of the analysis, which considers whether withheld materials are also “confidential.”

2. Sufficiency of Showing that Withheld Documents Are “Confidential”

The Court previously noted that the third prong of Exemption 4 requires the agency to

show that the information it has withheld is “privileged or confidential.” 5 U.S.C. § 552(b)(4).

DOJ and Siemens have argued that the withheld material is “confidential” not privileged. See

Siemens Mem. at 16–26; DOJ Mem. at 24–35. A court’s analysis of whether information is

confidential turns on whether the information was provided to the government voluntarily or

involuntarily. See Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871,

872 (D.C. Cir. 1992) (en banc). Under this rule, information that is provided voluntarily “will be

treated as confidential under Exemption 4 if it is of a kind that the provider would not

23
customarily make available to the public.” Id. In this case, however, the parties agree that the

withheld information was provided involuntarily.7

In a case such as this, where the agency received material through an involuntary

disclosure, that information is “confidential” for purposes of FOIA Exemption 4 if disclosure is

likely (1) to impair the agency’s ability to obtain the information in the future or (2) to cause

substantial harm to the competitive position of the source of the information. See Nat’l Parks

Conservation Ass’n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974); see also Critical Mass, 975

F.2d at 877 (reaffirming the National Parks test). The agency may prevail by showing that either

prong of the National Parks test applies. DOJ and Siemens argue that both prongs apply. See

Siemens Mem. at 17–26; DOJ Mem. at 25–35. 100Reporters responds that disclosure would not

impair the government’s ability to obtain necessary information in the future and that DOJ and

Siemens have not shown that disclosure would cause Siemens to suffer competitive harm. See

100Reporters Mem. at 16–28.

The Court begins its analysis with the second prong and considers whether the release of

the three categories of commercial information described above would also cause competitive

harm to Siemens. The relevant question is whether the agency or Siemens have sufficiently

shown that release of the withheld information is likely to “cause substantial harm to the

7
In a footnote, DOJ argues that “[t]o the extent that Siemens produced some of the
withheld information voluntarily, the information should be kept confidential because the
information is of the kind that Siemens would customarily not release to the public.” DOJ Mem.
at 25 n.11. However, all parties use the involuntary framework when analyzing this question,
and DOJ also explains that “[a]lthough Siemens voluntarily pleaded guilty, once the court
accepted its plea and adopted the plea agreement, its disclosures became involuntary submissions.”
DOJ Mem. at 25 n.12. At any rate, the voluntariness question turns on whether the agency had
“actual legal authority” to compel a party to turn over documents or information. See Ctr. for
Auto Safety v. Nat’l Highway Traffic Safety Admin., 244 F.3d 144, 149 (D.C. Cir. 2001). In this
case, the civil settlement and criminal plea agreement provided that actual authority.

24
competitive position of the person from whom the information was obtained.” Nat’l Parks, 498

F.2d at 770. The party invoking Exemption 4 does not need “to prove disclosure certainly would

cause it substantial competitive harm, but only that disclosure would ‘likely’ do so.” McDonnell

Douglas Corp. v. U.S. Dep’t of the Air Force, 375 F.3d 1182, 1187 (D.C. Cir. 2004).

The likely harm must be competitive, however. In other words, the exemption only

applies to “harm flowing from the affirmative use of proprietary information by competitors.”

Pub. Citizen Health Research Grp., 704 F.2d at 1291 n.30 (quoting Mark Q. Connelly, Secrets

and Smokescreens: A Legal and Economic Analysis of Government Disclosures of Business

Data, 1981 Wis. L. Rev. 207, 235–36 (1981)). Reputational injury or embarrassment alone are

not cognizable under Exemption 4. See Occidental Petroleum Corp. v. SEC, 873 F.2d 325, 341

(D.C. Cir. 1989) (“Occidental’s right to an exemption, if any, depends upon the competitive

significance of whatever information may be contained in the documents, not upon whether its

motive is to avoid embarrassing publicity.”).

The D.C. Circuit has explained that courts “generally defer to the agency’s predictive

judgments as to ‘the repercussions of disclosure.’” United Techs. Corp. v. U.S. Dep’t of Def.,

601 F.3d 557, 563 (D.C. Cir. 2010) (quoting McDonnell Douglas, 375 F.3d at 1191 n.4).

Nevertheless, when reviewing the sufficiency of declarations and Vaughn indices, merely

conclusory statements about competitive harm are insufficient. See Occidental Petroleum, 873

F.2d at 342 (requiring more than a “conclusory statement” regarding substantial competitive

harm); Pub. Citizen Health Research Grp., 704 F.2d at 1291 (“Conclusory and generalized

allegations of substantial competitive harm, of course, are unacceptable and cannot support an

agency’s decision to withhold requested documents.”). In other words, “deference does not

25
mean blind acceptance.” Mudge Rose Guthrie Alexander & Ferdon v. U.S. Int’l Trade Comm’n,

846 F.2d 1527, 1532 (D.C. Cir. 1988).

With that framework in mind, the Court turns to several arguments raised by the parties

that relate to multiple categories of materials withheld pursuant to Exemption 4. After resolving

those issues, the Court will consider whether the release of information contained in each of the

three categories of documents is likely to cause competitive harm to Siemens.

a. Competitive Harm Related to Disclosure of Siemens’ Compliance Plan

The parties spend a significant portion of their briefing addressing whether disclosing the

details of Siemens’ compliance plan would cause competitive harm. The Court will address

these arguments in general, because they pertain to each category of documents at issue here.

100Reporters argues that disclosure of the plan would not harm Siemens, because the

“compliance program is not an ‘off-the-shelf’ solution that could easily [be] adopted by a

competitor.” 100Reporters Mem. at 22. Furthermore, 100Reporters argues that Siemens’

competitors must already have compliance plans of their own because of “the dominating

presence that FCPA enforcement has taken on in corporate governance.” 100Reporters Mem.

at 23. 100Reporters includes a list of references to competitor companies’ experience with anti-

corruption enforcement, including guilty pleas and civil settlements with U.S. law enforcement.

100Reporters Mem. at 24. Finally, 100Reporters concludes that the costs Siemens incurred in

creating its compliance and training programs are due to factors that are “presumably unique to

this company” and that “there is no evidence on specific costs of designing and implementing

those features of Siemens’ FCPA compliance program . . . that go beyond competitors’

26
apparently robust programs.” 8 100Reporters Mem. at 25–26.; see also Pl.’s Reply Supp. Cross-

Mot. Summ. J. (“100Reporters Reply”) at 13, ECF No. 76 (“Siemens’ unique business profile

and geographic reach, and its uniquely broad violation of the FCPA, necessarily mean its

compliance program is unique to the company, and not replicable or easily or fruitfully usable by

competitors.”).

In response, Siemens relies heavily on the Public Citizen I and Public Citizen II opinions.

See Consolidated Reply Mem. P. & A. Supp. Siemens’ Mot. Summ. J. & Opp’n to Pl.’s Cross-

Mot Summ. J. (“Siemens Reply”) at 4, ECF No. 71. Pointing to those cases, Siemens argues that

disclosing Siemens’ compliance and training materials “would provide [competitors] with a ‘free

roadmap’ as to how they might efficiently comply with the laws and regulations in the highly-

regulated spaces in which Siemens operates” without incurring the same costs. Siemens Reply at

4–5. Siemens argues that 100Reporters’ position would “essentially undo Exemption 4” because

it fails to realize that “the mere fact that competitors do similar things in slightly different ways

does not diminish the competitive sensitivity of proprietary information.” Siemens Reply at 5.

Furthermore, Siemens contends that key parts of its compliance program could be directly

copied, with minimal changes, and used by competitors.9 Siemens Reply at 5.

8
For the first time in its reply brief, 100Reporters argues that Siemens has presented
details of its compliance program in public, and the company “cannot seek plaudits for its
commitment to compliance with the law while hiding the proof of that compliance behind claims
of potential competitive harm.” 100Reporters Reply at 12. As an initial matter, courts generally
will not entertain new arguments presented in a reply brief. See Campbell v. Nat’l Union Fire
Ins. Co., 130 F. Supp. 3d 236, 267 n.28 (D.D.C. 2015); see also McBride v. Merrell Dow &
Pharm. Inc., 800 F.2d 1208, 1211 (D.C. Cir. 1986) (“Considering an argument advanced for the
first time in a reply brief . . . is not only unfair . . . but also entails the risk of an improvident or
ill-advised opinion on the legal issues tendered.” (citation omitted)). At any rate, there is likely a
difference between revealing exhaustive details of a company’s compliance plan, and presenting
selected portions for a commercial purpose, such as bolstering the company’s reputation.
9
DOJ provides limited argument on this point.

27
 The Court finds that Siemens has the better argument here. In the context of Exemption

4, the D.C. Circuit has stated the general principle that “competition in business turns on the

relative costs and opportunities faced by members of the same industry,” and thus, “there is a

potential windfall for competitors to whom valuable information is released under FOIA.”

Worthington Compressors, Inc. v. Costle, 662 F.2d 45, 51 (D.C. Cir. 1981). The bargains

available to competitors taking advantage of FOIA, “could easily have competitive

consequences.” Id. In a case involving some similar facts, the court held that disclosure of FDA

compliance information could pose a competitive risk because the materials were, “in a sense, a

free roadmap as to what works in pharmaceutical marketing without violating the legal

framework of regulatory enforcement and laws that govern the industry.” Pub. Citizen II,

66 F. Supp. 3d at 210. In this case, Siemens’ declarant similarly states that disclosure “would

provide competitors with a roadmap of aspects of Siemens’ best-in-class compliance system and

allow those competitors to make affirmative use of the program . . . without incurring the

substantial investment cost Siemens has incurred.” Kirsch Decl. ¶ 28.

100Reporters’ arguments that Siemens is unique or that Siemens’ competitors already

have compliance plans misses the mark. In fact, the court rejected a very similar argument in

Public Citizen II. That court explained that:

The plaintiff’s argument that this customization would render such information
worthless to the defendant-intervenors’ competitors . . . is equally unpersuasive.
. . . This argument is belied by the importance the companies place on their
compliance programs . . . and the general importance all companies place on best
practices in corporate governance and structure.

Pub. Citizen II, 66 F. Supp. 3d at 215 n.24. That logic is equally compelling in this case. First, the

Court notes that 100Reporters has not presented legal authority in support of its position.

Second, 100Reporters’ theory would gut Exemption 4. Of course no two companies are exactly

alike, and this proposed rule would effectively make identity a requirement before disclosure of

28
compliance materials could constitute harm. That rule seems particularly problematic in a world

of constantly changing regulatory environments and business climates, where companies must

continue to invest in compliance and training to address emerging risks. For these reasons, the

Court finds that disclosure of Siemens’ compliance plans and trainings can constitute a form of

competitive harm.

b. Other General Arguments Raised by 100Reporters

100Reporters raises a number of other general arguments against DOJ’s assertion that the

withheld information is confidential for the purposes of Exemption 4.

First, 100Reporters repeatedly argues that the justifications for withholding information

under Exemption 4 are “vague and conclusory,” based on boilerplate language, and “too cursory

and nonspecific.” 100Reporters Mem. at 12. Specifically, 100Reporters argues that DOJ’s

affidavits and Amended Vaughn Index provide insufficient detail for the Court to determine

whether Siemens would suffer competitive harm. See 100Reporters Mem. at 19–21. According

to 100Reporters, DOJ has not shown the severity or nature of the alleged competitive harm, or

how a competitor could use the withheld information. See 100Reporters Mem. at 20. Next,

100Reporters argues that Siemens also fails to establish the same information. The Court finds

that a general, facial attack on the sufficiency of the withholdings is not the proper analysis. To

be sure, although “parties opposing disclosure need not ‘show actual competitive harm,’” they

must show a “likelihood of substantial competitive injury.” Pub. Citizen Health Research Grp.

v. FDA, 704 F.2d 1280, 1291 (D.C. Cir. 1983) (quoting Gulf & Western Indus. v. United States,

615 F.2d 527, 530 (D.C. Cir. 1979)). But the best way to test the agency’s justifications is to

consider specific materials at issue. Thus, the Court will bear these principles in mind when it

turns to the three categories of documents withheld pursuant to Exemption 4.

29
 Second, 100Reporters argues that neither DOJ nor 100Reporters has established that

Siemens faces actual competition. See 100Reporters Mem. at 20, 27. Parties seeking

withholding of information must present evidence of “[a]ctual competition.” Pub. Citizen Health

Research Grp., 704 F.2d at 1291 (alteration in original) (quoting Gulf & Western, 615 F.2d at

530). But the evidence of competition can be general, and does not need to list specific

competitors, for example. See Gen. Elec. Co. v. Dep’t of the Air Force, 648 F. Supp. 2d 95,

102–03 (D.D.C. 2009) (“[E]vidence need not be of actual competition over these particular

contracts.”); see also Nat’l Parks Conservation Ass’n v. Morton, 498 F.2d 765, 770–71 (D.C.

Cir. 1974) (noting that disclosure would be improper if the release of contract information would

harm a party’s competitive position in a non-concession enterprise, even though the concessioner

faced no actual competition during the term of its contract with the government). The party

seeking to prevent disclosure need only present evidence of actual competition and that

disclosure of the disputed information is likely to cause substantial competitive harm in the

future. See Gulf & Western, 615 F.2d at 530; see also McDonnell Douglas Corp. v. U.S. Dep’t

of the Air Force, 375 F.3d 1182, 1187 (D.C. Cir. 2004) (explaining that a party invoking

Exemption 4 need not “prove disclosure certainly would cause it substantial competitive harm,

but only that disclosure would ‘likely’ do so”).

In this case, DOJ and Siemens have presented sufficient evidence of actual competition.

Although DOJ and Siemens do not specifically identify any competitors, the declarations make

repeated reference to Siemens’ competitors. See Kirsch Decl. ¶¶ 13, 15, 16, 21, 22, 24, 26, 28;

Moberly Decl. ¶ 22. 100Reporters seems to acknowledge this relatively intuitive point when it

refers to “a survey of Siemens’ acknowledged competitors” and cites Siemens’ annual investor

report. 100Reporters Mem. at 23–24. Thus, the Court finds that Siemens faces actual

30
competition, and the risk of potential competitive harm will be considered in the context of each

category of withheld materials.

Third, 100Reporters argues that “Exemption 4 does not guard against mere

embarrassment in the marketplace or reputational injury.” 100Reporters Mem. at 27 (quoting

Pub. Citizen I, 975 F. Supp. 2d 81, 107 (D.D.C. 2013)). 100Reporters is correct. The D.C.

Circuit has repeatedly made clear that embarrassment is not a legitimate grounds for withholding

under Exemption 4. See, e.g., United Tech. Corp. v. Dep’t of Defense, 601 F.3d 557, 564 (D.C.

Cir. 2010)); CNA Fin. Corp. v. Donovan, 830 F.2d 1132, 1154 (D.C. Cir. 1987). But the Court

does not believe that DOJ has relied on embarrassment as a basis for withholding information.

Certainly, the Court will not rely on the risk of embarrassment to Siemens when considering the

categories of materials withheld under Exemption 4.

With these principles in mind, the Court turns to the three categories of documents

withheld pursuant to Exemption 4.

c. Annual Monitor Reports and Associated Documents

First, the Court considers the Monitor’s annual reports and associated documents,

including presentations summarizing the reports and communications related to the reports. The

Court finds that this type of documents contains information that is likely to cause competitive

harm to Siemens and is therefore “confidential.”

The Monitor’s annual reports and associated documents reveal extensive details about the

inner workings of Siemens’ business, including its compliance program. See Kirsch Decl. ¶ 17;

Warin Decl. ¶ 25(c). The materials include the Monitor’s assessment of and recommendations

for various functional compliance areas, including:

(1) compliance policies; (2) anti-corruption training provided to Siemens
employees; (3) proprietary compliance tools, including those that govern

31
 confidential reporting, lines of approval authority, and competitive bidding; (4)
reporting of compliance violations; (5) guidelines, policies, and internal
investigations conducted with respect to compliance issues; (6) disciplinary
procedures; (7) finance and controllership functions; (8) contracting and
procurement with suppliers; (9) mergers and acquisitions; (10) mitigation of risks
related to third-party business partners; and (11) sales and marketing.

Kirsch Decl. ¶ 18. The reports also detail materials that do not solely pertain to compliance

policies. For instance, the reports also include “observations and assessment with respect to

specific Siemens’ projects and customers,” “observations and assessments with respect to

particular M&A transactions,” and “particular Siemens business partners.” Kirsch Decl.

¶¶ 20(c), (d), (f).

Siemens’ declarant states that the release of these materials would harm Siemens by

“provid[ing] competitors with a roadmap of Siemens’ system and allow those competitors to

make affirmative use of the program . . . without incurring the substantial investment cost that

Siemens has incurred.” Kirsch Decl. ¶ 21. The Court has previously determined that this sort of

harm is cognizable under Exemption 4. See supra Part IV.A.2.a. Siemens has invested

resources in creating its compliance plan, see Kirsch Decl. ¶ 8, and permitting competitors to

take advantage of that plan through FOIA constitutes a competitive harm. See Worthington

Compressors, Inc. v. Costle, 662 F.2d 45, 51 (D.C. Cir. 1981).

The release of this information would likely cause other competitive harms. For

example, these materials contain a wide range of information on Siemens’ finance structure,

business partners, and customers. See Kirsch Decl. ¶¶ 18, 20. This information cuts to the core

of Siemens’ business, and there is little doubt a competitor could rely on this information to

Siemens’ detriment.10

10
Siemens also argues that a competitor could use the disclosures to identify and exploit
weaknesses in Siemens’ compliance program. See Kirsch Decl. ¶ 21. Siemens does not provide
any evidence as to how a competitor might do so, however. The Court is even less persuaded by

32
 The descriptions of the information contained in the Monitor’s annual report and

associated materials are sufficiently detailed to show that these materials relate to Siemens’

compliance program, as well as other essential business interests. Thus, the Court concludes that

disclosure of the information would likely cause competitive harm to Siemens, and it is therefore

“confidential” for the purposes of Exemption 4. See McDonnell Douglas Corp., 375 F.3d at

1187.

d. Monitor Work Plans and Associated Documents

Second, the Court considers the Monitor’s work plans and related presentations and

documents. The Court finds that disclosure of information contained in this category of

documents is likely to cause competitive harm to Siemens and is therefore “confidential.”

These materials set forth the process that the Monitor planned each year in order to

evaluate and improve Siemens’ compliance programs. See Kirsch Decl. ¶ 22; Warin Decl.

¶ 25(a). In setting forth that plan, these materials detail “Siemens’ operations, contracts,

projects, and bids that the Monitor intended to review.” See Kirsch Decl. ¶ 22. The documents

reflect “Siemens’ business operations, structure, and compliance controls,” see Kirsch Decl.

¶ 24, as well as “the number of Siemens employees in each country, new orders, new

Siemens’ argument that counterparties could use the disclosure to “identify and exploit strengths
and weaknesses and could make it more difficult for Siemens to detect compliance violations.”
Siemens Mem. at 20 (citing Kirsch Decl. ¶ 21). The D.C. Circuit has held that Exemption 4 only
applies to “harm flowing from the affirmative use of proprietary information by competitors.”
Pub. Citizen Health Research Grp., 704 F.2d at 1291 n.30 (emphasis in original) (quoting Mark
Q. Connelly, Secrets and Smokescreens: A Legal and Economic Analysis of Government
Disclosures of Business Data, 1981 Wis. L. Rev. 207, 235–36 (1981). To the extent Siemens is
likely to be harmed by counterparties seeking to thwart Siemens’ compliance program, that harm
does not flow from the use of propriety information by a competitor. Nevertheless, Siemens has
shown that the disclosure of information in this category of documents is likely to cause
competitive harm for other reasons.

33
government orders, joint ventures and business partnerships, and Siemens’ business development

strategy across different sectors of the economy.” DOJ_0000001, Am. Vaughn Index at 18.

These materials contain information that is likely to cause competitive harm for the same

reasons as the Monitor’s annual reports and associated materials. See supra Part IV.A.2.c. First,

disclosing information in these documents would reveal details of Siemens’ compliance plan,

which is likely to cause competitive harm for the reasons set forth above. Second, these

materials contain extensive information related to Siemens’ operations, including, for example,

detailed figures about orders and customers in different parts of the world. It is likely that a

competitor would use this information to Siemens’ detriment.11

The description of the subject matter of this category of withheld documents is

sufficiently specific to demonstrate that these materials pertain to business operations, including

compliance programs, business partnerships, and order data. Thus, the Court concludes that the

information contained in these records would likely cause competitive harm to Siemens if

disclosed, and it is therefore “confidential” for the purposes of Exemption 4. See McDonnell

Douglas Corp., 375 F.3d at 1187.

11
These materials also include references to “employees the Monitor intended to
interview.” See Kirsch Decl. ¶ 22. The Court is not convinced that releasing the names of
employees, identified only as potential subjects for interviews, is likely to cause competitive
harm to Siemens. Neither Siemens nor DOJ has explained why releasing the names of these
employees is likely to cause competitive harm. See Siemens Mem. at 21; DOJ Mem. at 33–34;
Siemens Reply at 3–6; DOJ Reply at 22–25. The party invoking Exemption 4 bears the burden
of proving the likelihood of competitive harm, and neither Siemens nor DOJ has shown that the
release of these names would cause that harm. See McDonnell Douglas Corp. v. U.S. Dep’t of
the Air Force, 375 F.3d 1182, 1187 (D.C. Cir. 2004). For the reasons explained below, the Court
also denies summary judgment with regard to the withholding of employee names pursuant to
Exemption 7(C). See infra Part IV.C.2. Nevertheless, in light of the fact that DOJ and
Defendant-Intervenors will have an opportunity to supplement their arguments with regard to
Exemption 7(C), the Court concludes that it would be premature to reach the other prong of the
National Parks test at this time.

34
 e. Siemens Trainings, Compliance Policies, and Associated Documents

Third, the Court considers Siemens’ internal compliance policies, training presentations,

training modules, and other related materials. The Court finds that disclosure of information

contained in this category of documents is likely to cause competitive harm to Siemens and is

therefore “confidential.”

These materials include internal training presentations for Siemens’ employees covering

the company’s compliance programs and policies. See Kirsch Decl. ¶ 25. Among other things,

the trainings discuss global anti-corruption laws, Siemens’ due diligence practices, guidelines on

gifts, and Siemens’ contract approval process. See Kirsch Decl. ¶ 25. Aside from trainings, this

category of documents includes “compliance policies and circulars.” Kirsch Decl. ¶ 27. This

subset of documents discuss “internal regulations governing Siemens’ interactions with third

parties, reporting of compliance violations, and corporate discipline.” Kirsch Decl. ¶ 27.

The Court finds that these materials are likely to cause competitive harm for the reasons

stated above. See supra Part IV.A.2.a. The disclosure of a compliance plan constitutes a

competitive harm because competitors are likely to take advantage of that plan without incurring

the costs undertaken by the party who provided the documents to the government. See Pub.

Citizen II, 66 F. Supp. 3d at 210; see also Worthington Compressors, 662 F.2d at 51. Thus, the

Court concludes that the records would likely cause competitive harm to Siemens if disclosed,

and they are therefore “confidential” for the purposes of Exemption 4. See McDonnell Douglas

Corp., 375 F.3d at 1187.

* * *

Thus, the Court finds that DOJ, relying in part on the declarations provided by Siemens

and the Monitor, has met the burden of showing that the release of information in each of the

35
three categories of documents withheld pursuant to Exemption 4 is likely to cause competitive

harm to Siemens. Because the information satisfies the second prong of the National Parks test,

it is “confidential” for the purposes of Exemption 4.12 Pursuant to FOIA, “commercial or

financial information obtained from a person” that is “confidential” may be withheld from

disclosure. 5 U.S.C. § 552(b)(4). Therefore, the Court grants summary judgment in favor of

DOJ and Defendant-Intervenors with regard to DOJ’s withholding of the information described

here pursuant to Exemption 4.13

B. Exemption 5

DOJ has also withheld records in this case pursuant to FOIA Exemption 5. Exemption 5

permits the withholding of “inter-agency or intra-agency memorandums or letters that would not

be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C.

§ 552(b)(5). This exemption protects documents “normally privileged in the civil discovery

context,” Judicial Watch, Inc. v. U.S. Dep’t of Justice, 365 F.3d 1108, 1113 (D.C. Cir. 2004),

such as materials shielded by the attorney-client privilege, the attorney work-product privilege

and “what is sometimes called the ‘deliberative process’ privilege,” Dep’t of the Interior v.

12
Because the Court finds that release of this information is likely to cause competitive
harm to Siemens, there is no need to address the other prong of the National Parks test, which
considers whether disclosure would make it difficult for the government to obtain reliable data in
the future. Nor is there any need for the Court to address DOJ’s argument that “[c]ourts have . . .
recognized a third prong of the National Parks . . . test that protects other governmental
interests.” DOJ Mem. at 29.
13
The Court finds that DOJ properly withheld certain information in these documents,
but the Court’s analysis does not apply to the entirety of the documents themselves.
100Reporters requests that the Court “conduct in camera review of the documents” and it also
argues that “DOJ’s blanket claim that effectively none of the material is segregable is neither
plausible nor justified.” 100Reporters Mem. at 28 n.17. The Court will address segregability
and in camera review in greater detail below. See infra Part IV.D. In brief, DOJ must produce
certain representative documents for in camera review before the Court will determine whether
DOJ has produced all segregable factual information.

36
Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001). In other words, Exemption 5

covers “those documents, and only those documents, normally privileged in the civil discovery

context.” Loving v. U.S. Dep’t of Defense, 550 F.3d 32, 37 (D.C. Cir. 2008) (citations omitted).

The two Exemption 5 privileges at issue in this case are the deliberative process privilege and the

attorney work-product privilege.

DOJ and the Monitor argue that DOJ has properly withheld materials under Exemption 5.

See Monitor Mem. at 10–20; DOJ Mem. at 11–21. Siemens does not address Exemption 5 in its

briefs, but states that it “joins in and incorporates by reference the arguments” raised by DOJ and

the Monitor. See Siemens Mot. at 1–2. 100Reporters raises a number of arguments in

opposition to the Exemption 5 withholdings. For the reasons set forth below, the Court first

finds that the consultant corollary to Exemption 5 applies to the Monitor and its communications

with the government related to the monitorship. Next, the Court concludes that DOJ has not

established that it properly relied on the deliberative process privilege. The Court does,

however, find that DOJ’s reliance on the attorney work-product privilege is justified.

1. Consultant Corollary to Exemption 5

As a threshold issue, Exemption 5 only covers records that are “inter-agency or intra-

agency memorandums or letters.” 5 U.S.C. § 552(b)(5). In other words, the Supreme Court has

stated that, for Exemption 5 to apply to a document, the “source [of the withheld document] must

be a government agency.” Klamath, 532 U.S. at 2. But that rule is not absolute. Under what has

become known as the “consultant corollary,” FOIA Exemption 5 can protect certain

communications between an agency and an outside consultant.

The D.C. Circuit has explained that “records of communications between an agency and

outside consultants qualify as ‘intra-agency’ for purposes of Exemption 5 if they have been

37
‘created for the purpose of aiding the agency’s deliberative process.’” Pub. Citizen v. Dep’t of

Justice, 111 F.3d 168, 170 (D.C. Cir. 1997) (emphasis in original) (quoting Dow Jones & Co.,

Inc. v. Dep’t of Justice, 917 F.2d 571, 575 (D.C. Cir. 1990)); see also Ryan v. Dep’t of Justice,

617 F.2d 781, 789–90 (D.C. Cir. 1981) (“When an agency record is submitted by outside

consultants as part of the deliberative process, and it was solicited by the agency, we find it

entirely reasonable to deem the resulting document to be an ‘intra-agency’ memorandum.”). The

D.C. Circuit has determined that it is “‘irrelevant’ whether the author of the documents is

‘a regular agency employee or a temporary consultant.’” Pub. Citizen v. Dep’t of Justice, 111

F.3d at 170 (quoting Formaldehyde Inst. v. Dep’t of Health and Human Servs., 889 F.2d 1118,

1122 (D.C. Cir. 1989)).

The Supreme Court addressed the consultant corollary in Department of Interior v.

Klamath Water Users Protective Association, 532 U.S. 1 (2001). In a unanimous opinion, the

Court noted that several circuits have adopted the consultant corollary to Exemption 5.14 Id. at 9

(collecting cases from the Second, Fifth, and D.C. Circuits). Although the Court did not

expressly endorse the consultant corollary, it described the parameters of the rule in a “typical[]”

14
The Court also referred to Justice Scalia’s dissent in Department of Justice v. Julian,
which concluded that “[i]t is textually possible and . . . in accord with the purpose of the
provision, to regard as an intra-agency memorandum one that has been received by an agency, to
assist it in the performance of its own functions, from a person acting in a governmentally
conferred capacity other than on behalf of another agency—e.g., in a capacity as employee or
consultant to the agency, or as employee or officer of another governmental unit (not an agency)
that is authorized or required to provide advice to the agency.” 486 U.S. 1, 18 n.1 (1998) (Scalia,
J., dissenting). The majority opinion in Julian did not address that issue. Id. at 11 n.9
(“Respondents argue that presentence memorandums are not ‘inter-agency’ records for purposes
of Exemption 5. The Court of Appeals did not address this issue, however, and we do not find it
necessary to do so in light of our disposition today.”).

38
case.15 Id. at 10; see also id. at 11, 12 & n.4 (referring to “typical” applications of the consultant

corollary). The Court explained that, in a typical case, “the records submitted by outside

consultants played essentially the same part in an agency’s process of deliberation as documents

prepared by agency personnel might have done.” Id. at 10. The Court acknowledged that

consultants were independent and could have a definite point of view. Id. In the Court’s view,

the critical factor was that “the consultant does not represent an interest of its own, or the interest

of any other client.” Id. at 11. Instead, such a consultant’s “only obligations are to truth and its

sense of what good judgment calls for.” Id.

With that typical case in mind, the Court determined that the consultant corollary did not

apply to communications between the Bureau of Indian Affairs and certain Indian Tribes. The

Court’s reasoning turned on the fact that the Tribes communicated “with the Bureau [of Indian

Affairs] with their own, albeit entirely legitimate, interests in mind.”16 Id. at 12; see also id. at

14 (“[T]he dispositive point is that the apparent object of the Tribe’s communications is a

decision by an agency of the Government to support a claim by the Tribe that is necessarily

adverse to the interests of competitors.”).

Following Klamath, the D.C. Circuit has continued to recognize the consultant corollary.

See Nat’l Inst. of Military Justice v. U.S. Dep’t of Def., 512 F.3d 677, 682 (D.C. Cir. 2008)

(“Given the Supreme Court’s disclaimer and its reasoning, we perceive no basis to jettison our

binding Circuit precedent.”). Consistent with Klamath, the D.C. Circuit has focused on whether

15
The D.C. Circuit characterized the Klamath decision as “[a]ssuming without deciding
that the consultant corollary was valid.” Pub. Empls. for Envtl. Responsibility v. U.S. Section,
Int’l Boundary & Water Comm’n, 740 F.3d 195, 201 (D.C. Cir. 2014).
16
The Court also identified two cases, both decided by the D.C. Circuit, that it believed
“extend[ed] beyond what we have characterized as the typical examples” because they involved
parties who had their own independent interests. Klamath, 532 U.S. at 12 n.4 (citing Pub.
Citizen v. Dep’t of Justice, 111 F.3d 168; Ryan, 617 F.2d 781.

39
the purported consultants were advocating for their own interests. See Nat’l Inst. of Military

Justice, 512 F.3d at 683 (“Unlike the Indian tribes in Klamath, the individuals DoD consulted

had no individual interests to promote in their submissions.”); McKinley v. Bd. of Governors of

the Fed. Reserve Sys., 647 F.3d 331, 337–38 (D.C. Cir. 2011) (“Unlike the Indian tribes, the

FRBNY ‘[did] not represent an interest of its own, or the interest of any other client, when it

advise[d] the [Board].’” (alteration in original) (quoting Klamath, 532 U.S. at 11)).

The relevant question here is whether the Monitor falls within the parameters of the

consultant corollary, as defined by the D.C. Circuit and the Supreme Court. Although the

Monitor is not a classic government contractor, the Court finds that the consultant corollary

applies to materials the Monitor submitted to DOJ.

A DOJ attorney states that, in general, “[a] monitor’s primary responsibility is to assess

and monitor the company’s compliance with the terms of the settlement agreement.” DOJ Mot.,

Decl. of Tarek Helou (“Helou Decl.”) ¶ 8, ECF No. 59-6. According to the same declarant, “the

Justice Department could not conduct the kind of reviews that monitors conduct, because [the

Department’s] limited resources are focused on investigating and prosecuting violations of the

FCPA.” Helou Decl. ¶ 16. In this case, the civil settlement and criminal plea materials, which

the relevant law enforcement agencies created and filed, required the Monitor to undertake an

independent assessment of Siemens, its compliance with international anti-corruption rules, and

its adherence to the plea and settlement agreement. See Plea Agreement ¶ 12 (“Siemens AG

agrees that as part of its continuing cooperation obligations and to ensure that Siemens AG

implements an effective system of corporate governance and compliance with applicable laws

and regulations going forward, Dr. Theodor Waigel will serve as an independent monitor . . . .”);

Consent ¶ 3 (“The Monitor will . . . evaluate . . . the effectiveness of Siemens’ internal controls,

40
record-keeping, and financial reporting policies and procedures . . . .”); Statement of Offense,

Attach. 2 (setting forth Monitor’s responsibilities); see also Price Decl. ¶¶ 5, 13; Lipton Decl. ¶ 3.

The agreements gave the Monitor broad powers to request information, assess Siemens’

compliance program, and suggest reforms. See Statement of Offense, Attach. 2 ¶¶ 4, 6; see also

Warin Decl. ¶ 16; Price Decl. ¶¶ 5–8. Ultimately, the terms of the monitorship required the

Monitor to “certify whether the compliance programs of Siemens . . . is reasonably designed and

implemented to detect and prevent violations within Siemens of the anti-corruption laws.”

Statement of Offense, Attach. 2 ¶ 6. Crucially, the plea and settlement agreement explicitly

called for the Monitor to submit both written work plans and follow-up reports to the

government annually. See Statement of Offense, Attach. 2 ¶ 3; Consent ¶ 5. The undisputed

evidence shows that the Monitor submitted those materials to the agencies, as required.

See Monitorship Notice ¶ 7; Warin Decl. ¶¶ 20–23; Lipton Decl. ¶ 5; Price Decl. ¶¶ 7–8.

The Monitor provided additional information through in person meetings, and other informal

communications. See Warin Decl. ¶ 25(b), (d), (e); Lipton Decl. ¶¶ 5–6.

In Klamath, the Court’s consideration of the consultant corollary focused on one critical

factor: “the consultant does not represent an interest of its own, or the interest of any other

client.” 532 U.S. at 11. Instead, the consultant corollary may apply where a purported

consultant’s “only obligations are to truth and its sense of what good judgment calls for.” Id.

The undisputed evidence shows that the monitorship, imposed by agreements with relevant law

enforcement agencies, gave the Monitor wide-ranging authority to evaluate Siemens’ compliance

with the terms of the settlement agreement and with international anti-corruption laws. The

terms of the monitorship also explicitly required the Monitor to report to the government

regarding Siemens’ compliance. The Monitor was not representing his own interests or the

41
interests of Siemens when communicating with the government. Instead, the plea and settlement

agreement tasked the Monitor with the important job of exercising independent, fact-based

judgment to evaluate Siemens’ compliance and submit reports to the government detailing

Siemens’ compliance efforts.

100Reporters makes several arguments in opposition to this application of the consultant

corollary, but none are ultimately persuasive. First, 100Reporters argues that DOJ and the

Monitor do not “directly argue that the Monitor is an outside expert to whom the consultant

corollary clearly applies,” but instead only contend that the Monitor is “akin to” a consultant or

“effectively function[ing]” as one. See 100Reporters Mem. at 33–34 (alteration in original)

(quoting DOJ Mem. at 14 and Monitor Mem. at 17). Second, 100Reporters also notes that

Siemens, not the government, paid the Monitor. See 100Reporters Mem. at 35. Third,

100Reporters raises a number of ways in which it contends the “Monitor’s primary function was

directed towards Siemens, rather than toward fulfilling (or helping to fulfill) an agency

function.” 100Reporters Mem. at 34. For one, 100Reporters notes that the Monitor shared work

plans and annual reports with Siemens, which is inconsistent with a “purported role as a

consultant reporting strictly to the government on a confidential basis.”17 100Reporters Mem. at

34. For another, 100Reporters argues that the Monitor’s mandate was actually to manage

Siemens’ compliance with the plea agreement, not to provide information to the government.

See 100Reporters Mem. at 34. Last, 100Reporters contends that the terms of the monitorship

calls for the Monitor to report “questionable or corrupt payments or . . . transfers” to Siemens’

17
The Court addresses 100Reporters’ argument that the Monitor’s sharing of work plans
and annual reports with Siemens waived the deliberative process privilege in greater detail
below. See infra Part IV.B.2.b.

42
General Counsel or Audit Committee, and the Monitor need only report “significant violations of

the law” to DOJ. See 100Reporters Reply at 16 (quoting Statement of Offense, Attach. 2 ¶ 8).

While these arguments highlight ways in which the Monitor is different from a typical

government consultant, they do not address the core question, which is whether the Monitor

represented the interests of himself or Siemens, or instead, exercised independent judgment. The

D.C. Circuit has explained that “federal agencies occasionally will encounter problems outside

their ken, and it clearly is preferable that they enlist the help of outside experts skilled at

unravelling their knotty complexities.’” Nat’l Inst. of Military Justice, 512 F.3d at 683 (quoting

Formaldehyde Inst. v. Dep’t of Health and Human Servs., 889 F.2d 1118, 1122 (D.C. Cir.

1989)). In those situations, the information provided is “no less valuable or confidential for the

lack of compensation or formal contract.” Id. at 684. In fact, the court made clear that “what

matters is the nature of the relationship between the consultant and the agency, not the

formalities observed.” Id. at 687. In other words, the formal arrangements, including payment

and the structure of the agreement to provide information, are not dispositive.

Following Klamath, the D.C. Circuit has repeatedly approved of the application of the

consultant corollary where the party providing information to the agency was not advocating for

itself or a client. See Nat’l Inst. of Military Justice, 512 F.3d at 683; McKinley, 647 F.3d at 337–

38. Because the Monitor was exercising independent judgment, not advocating on its behalf or

on behalf of Siemens, the Court finds that the consultant corollary applies and the Monitor’s

documents are intra-agency documents within the meaning of Exemption 5.18

18
This conclusion is consistent with two other factors the D.C. Circuit has emphasized in
the context of the consultant corollary. First, “the expectation that communications will remain
confidential is crucial to eliciting candid and honest advice from outside consultants.” Nat’l Inst.
of Military Justice, 512 F.3d at 685. Here, DOJ also expressly authorized Siemens to share
privileged information with the Monitor subject to a non-waiver arrangement, see Statement of

43
 2. The Deliberative Process Privilege

DOJ has withheld documents pursuant to the deliberative process privilege incorporated

in Exemption 5. The deliberative process privilege “covers ‘documents reflecting advisory

opinions, recommendations, and deliberations comprising part of a process by which

governmental decisions and policies are formulated.’” Klamath, 532 U.S. at 8 (quoting NLRB v.

Sears, Roebuck & Co., 421 U.S. 132, 150 (1975)). The privilege is intended “to enhance the

quality of agency decisions by protecting open and frank discussion among those who make

them within the Government.” Id. at 9 (internal citation and quotation marks omitted). The

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.” Id. at 8–9; see

also Dow Jones & Co. v. U.S. Dep’t of Justice, 917 F.2d 571, 573–74 (D.C. Cir. 1990).

For the deliberative process privilege to apply, a court must first determine whether the

withheld materials are both “predecisional” and “deliberative.” Access Reports v. Dep’t of

Justice, 926 F.2d 1192, 1194 (D.C. Cir. 1991) (internal quotation marks omitted). Materials are

“predecisional” if they are “generated before the adoption of an agency policy.” McKinley v.

FDIC, 744 F. Supp. 2d 128, 138 (D.D.C. 2010) (quoting Coastal States Gas Corp. v. Dep’t of

Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)). Materials are “deliberative” if they reflect “the

give-and-take of the consultative process,” id. (quoting Coastal States, 617 F.2d at 866), “by

Offense, Attach. 2, ¶ 2(b), and this litigation illustrates the lengths DOJ and Defendant-
Intervenors will go to in an attempt to avoid disclosure. Second, there has “been some indicia of
a consultant relationship between the outsider and the agency . . . evidenced by the fact that the
agency seeks out the individual consultants and affirmatively solicits their advice in aid of
agency business.” Nat’l Inst. of Military Justice, 512 F.3d at 686. Here, the plea and settlement
agreement required Siemens to enter into a monitorship and explicitly required Dr. Waigel to
serve as the Monitor. See Plea Agreement ¶ 12. These factors bolster the Court’s conclusion
that the consultant corollary applies in this case.

44
which the decision itself is made,” Jowett, Inc. v. Dep’t of the Navy, 729 F. Supp. 871, 875

(D.D.C. 1989) (quoting Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975)). The “key

question” in determining whether the material is deliberative in nature “is whether disclosure of

the information would ‘discourage candid discussion within the agency.’” Access Reports, 926

F.2d at 1195 (quoting Dudman Commc’ns Corp. v. U.S. Dep’t of the Air Force, 815 F.2d 1565,

1567–68 (D.C. Cir. 1987)). Furthermore, an agency withholding information, “must establish

‘what deliberative process is involved, and the role played by the documents in issue in the

course of that process.’” Senate of P.R. v. U.S. Dep’t of Justice, 823 F.2d 574, 585–86 (D.C. Cir.

1987) (quoting Coastal States, 617 F.2d at 868).

a. The Deliberative Process at Issue

Ms. Moberly states that DOJ has withheld the following information pursuant to

Exemption 5 and the deliberative process privilege:

 Monitor’s work plans and related documents . . . .
 Monitor’s yearly reports and exhibits . . . .
 Monitor’s presentations to DOJ and SEC summarizing various aspects of
his work;
 Emails and correspondence between the Monitor, Monitor’s counsel, DOJ
attorneys, and SEC attorneys concerning various aspects of the
monitorship;
 Emails involving DOJ attorneys and SEC attorneys concerning various
aspects of the monitorship, including issues raised at meetings and
presentations;
 Correspondence between the Siemens Board19 and the DOJ and SEC
attorneys concerning various aspects of the monitorship;
 Siemens compliance policies and descriptions of various aspects of its
compliance programs;

19
Although the Court cannot undertake a full analysis of the deliberative process
privilege because DOJ has failed to identify the deliberative process at issue, the Court notes that
the Monitor is covered by the consultant corollary. See supra Part IV.B.1. The Court’s finding
does not extend the consultant corollary to the Siemens Board.

45
  Training materials for Siemens employees on various aspects of its
compliance programs; and
 Draft court filings involving the Siemens prosecution.

Moberly Decl. ¶ 24.

The Court first considers which deliberative process, if any, is linked to the withheld

documents. 100Reporters argues that DOJ has not only failed to identify any deliberative

process, but also failed to “tie the records to the purported decision-making at issue.” See

100Reporters Mem. at 29–30. 100Reporters contends that the declarations presented by DOJ are

too vague, and do not provide specific claims regarding the deliberative process at issue in this

case. 100Reporters Mem. at 30.20

The Court is persuaded by 100Reporters’ argument that DOJ has not sufficiently

identified the deliberative process or processes at issue. “[T]o approve exemption of a document

as predecisional, a court must be able ‘to pinpoint an agency decision or policy to which the

document contributed.’” Senate of P.R. v. U.S. Dep’t of Justice, 823 F.2d 574, 585 (D.C. Cir.

1987) (quoting Paisley v. CIA, 712 F.2d 686, 698 (D.C. Cir. 1983)). To be sure, the Supreme

Court has explained that “the need to protect pre-decisional documents does not mean that the

existence of the privilege turns on the ability of an agency to identify a specific decision in

connection with which a memorandum is prepared.” Sears, 421 U.S. at 151 n.18. The Court

20
100Reporters also asserts that the Amended Vaughn Index, “far from establishing what
role each document played in a deliberative process, merely recite[s] identical boilerplate.”
100Reporters Mem. at 31. The Court notes that the use of repetitive language is not necessarily
prohibited, as long as an agency can adequately describe the nature of the deliberative process
involved and the function and significance of the withheld material in that process. See Judicial
Watch, Inc. v. FDA, 449 F.3d 141, 147 (D.C. Cir. 2006) (explaining that “categorization and
repetition provide efficient vehicles by which a court can review withholdings” and that
“particularity may actually impede court review and undermine the functions served by a
Vaughn index”); see also Pub. Empls. for Envtl. Responsibility v. Envtl. Prot. Agency, No. 14-
2056, 2016 WL 5675410, at *9 (D.D.C. Sept. 30, 2016).

46
recognized that some deliberate processes would not ripen into agency decisions, and did not

want to interfere with that process. See id. However, an agency must establish at least what

deliberative process is involved and the role that withheld documents played in that process. See

Formaldehyde Inst. v. U.S. Dep’t of Health & Human Servs., 889 F.2d 1118, 1123 (D.C. Cir.

1989). Furthermore, an agency must show that the document was “generated as part of a

definable decision-making process.” Gold Anti-Trust Action Comm., Inc. v. Bd. of Governors of

the Fed. Reserve Sys., 762 F. Supp. 2d 123, 135-36 (D.D.C. 2011) (emphasis added) (citing

Petroleum Info. Corp. v. U.S. Dep’t of the Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992)); see

also Pub. Empls. for Envtl. Responsibility v. Envtl. Prot. Agency, No. 14-2056, 2016 WL

5675410, at *6 (D.D.C. Sept. 30, 2016).

DOJ and the Monitor present evidence that purportedly shows that the withheld materials

were created over the four years of the monitorship, and the law enforcement agencies relied on

them when making decisions regarding Siemens’ compliance with the plea and settlement

agreement and with anti-corruption laws generally. See Warin Decl. ¶¶ 11–12, 24; Lipton Decl.

¶¶ 5, 7, 9–10; Price Decl. ¶¶ 9–10. For example, Mr. Lipton stated that the documents “helped

DOJ determine whether the Monitor was fulfilling his mandate to ensure that Siemens carried

out its responsibilities under the plea agreement.” Lipton Decl. ¶ 5. The SEC also purportedly

relied on communications with the Monitor “to determine whether Siemens was complying with

its obligations under the Final Judgment, including whether Siemens’ compliance program was

reasonably designed and implemented to detect and prevent violations of the anti-corruption

laws, and that further monitoring and review pursuant to the Final Judgment were no longer

warranted.” Price Decl. ¶ 9. Each Amended Vaughn Index entry that invokes the deliberative

process privilege includes the same boilerplate language. Among other things, each entry states:

47
 As a party to the plea agreement and in exercising its duty to enforce the FCPA,
the DOJ and the SEC were engaged in a deliberative process in evaluating
whether the Monitor was fulfilling his mandate and whether Siemens was
complying with the plea agreement. DOJ obtained the document prior to/in the
course of making law enforcement and litigation decisions, and relied upon the
information contained therein as part of its underlying deliberative process.

See, e.g., DOJ_0005222, Am. Vaughn Index at 4.

The Court finds that this evidence is insufficient to define with the necessary specificity

“what deliberative process is involved.” Coastal States, 617 F.2d at 868. In brief, DOJ’s

position is that “[t]he Monitor prepared the documents and presentations that he gave to the DOJ

for the purpose of helping the DOJ deliberate on whether Siemens had satisfied its obligations

under the Plea Agreement.” DOJ Mem. at 16. That view of the deliberative process at issue is

overbroad.

The agency bears the burden of identifying the deliberative process at issue. See Coastal

States, 617 F.2d at 868. This step is critical because a court can only analyze whether a record is

both predecisional and deliberative in relation to the relevant deliberative process. In other

words, the timing of a record in relation to the adoption of agency policy is a crucial factor. See

Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151 (D.C. Cir. 2006) (“We deem a document

predecisional if ‘it was generated before the adoption of an agency policy.’” (quoting Coastal

States, 617 F.2d at 866)); Nat’l Right to Work Legal Def. & Educ. Found., Inc. v. U.S. Dep’t of

Labor, 828 F. Supp. 2d 183, 189 (D.D.C. 2011) (“The timing of a record is important in the

analysis; communications made after a decision has been made and designed to explain that

decision are not privileged under Exemption 5.”). Similarly, materials are “deliberative” if they

reflect “the give-and-take of the consultative process,” McKinley, 744 F. Supp. 2d at 138

(quoting Coastal States, 617 F.2d at 866), “by which the decision itself is made,” Jowett, Inc.,

729 F. Supp. at 875 (quoting Vaughn, 523 F.2d at 1144).

48
 The process identified by DOJ and Defendant-Intervenors is too nebulous to allow the

Court to conduct the necessary analysis for each withheld record. Although EPA is not required

to link each document to a specific action, it must do more to tie the materials to some definable

process. See Nat’l Sec. Counselors v. CIA, 960 F. Supp. 2d 101, 189 (D.D.C. 2013) (“The

individual entries in the CIA’s Vaughn index, however, do not elaborate on the ‘specific

deliberative process to which the withheld [document] contributed.’” (quoting Elec. Frontier

Found. v. U.S. Dep’t of Justice, 826 F. Supp. 2d 157, 168 (D.D.C. 2011))); Trea Senior Citizens

League v. U.S. Dep’t of State, 923 F. Supp. 2d 55, 68 (D.D.C. 2013) (“Such a broad and opaque

description of the deliberative process involved does not provide the Court with enough detail

about whether these documents are deliberative and predecisional.”); cf. Judicial Watch, Inc. v.

U.S. Postal Serv., 297 F. Supp. 2d 252, 264 (D.D.C. 2004) (“It is not enough to say that the

documents relate, in some way, to ‘actions taken or proposed in response to the discovery of

anthrax in the mail,’ for if they did not, the documents would not be before the court at all.”

(citations omitted)). Accepting DOJ and Defendant Intervenors’ view of the deliberative process

at issue would create a four-year umbrella effectively shielding all agency action from review

without accounting for any subsidiary agency decisions.

For example, instead of being part of a broader process by which DOJ reached the

decision to certify that Siemens complied with the terms of the plea and settlement agreement,

each of the work plans appears to implicate a separate sub-decision—with a distinct deliberative

process—about what work the Monitor should undertake for the relevant year of the

monitorship.21 The agency bears the burden of identifying the deliberative process at issue, see

21
It is hard to see how the individual work plans were part of the deliberative process for
determining whether Siemens complied with the plea and settlement agreements. Instead, they
appear to be decisions in themselves. If DOJ had concluded that Siemens failed to comply with

49
Coastal States, 617 F.2d at 868, and DOJ has failed to point to subsidiary decisions that fall

underneath the nebulous umbrella process it has purported to identify.

The Court also notes that DOJ has withheld “Siemens compliance policies” and

“[t]raining materials for Siemens employees” pursuant to the deliberative process privilege.

Moberly Decl. ¶ 24. The privilege is intended “to enhance the quality of agency decisions by

protecting open and frank discussion among those who make them within the Government.”

Dep’t of the Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 9 (2001) (internal

citation and quotation marks omitted). Although the Court does not doubt that DOJ reviewed

Siemens’ compliance policies and training materials, it seems unlikely that disclosure would

harm the quality of agency decisions because those documents exist independently of the

Monitor’s work and were not created for the purpose of agency decisionmaking. In other words,

the mere consideration of a document does not bring it within the privilege if it does not

“reflect[] the give-and-take of the consultative process.” Coastal States, 617 F.2d at 866.

Without greater clarity on what deliberative process is at stake, the Court cannot determine

whether a particular record reflects that process.

For these reasons, the Court finds that DOJ has failed to carry its burden to “establish

‘what deliberative process is involved, and the role played by the documents in issue in the

course of that process.’” Senate of P.R., 823 F.2d at 585–86 (quoting Coastal States, 617 F.2d at

the plea and settlement agreements because the year two work plan was inadequate, the Court
suspects that Siemens would have cried foul. The Court is not thus convinced that the work
plans are predecisional or that they reflect the give and take of the consultative process with
respect to DOJ’s ultimate compliance decision.

50
868).22 Thus, the Court denies DOJ and Defendant-Intervenors’ motions for summary judgment

on the application of the deliberative process privilege.

Federal courts have the authority to order agencies to produce any records that have been

withheld improperly. See 5 U.S.C. § 552(a)(4)(B); see also Vaughn v. Rosen, 484 F.2d 820, 824

(D.C. Cir. 1973) (“If the factual nature of the documents were so clearly established on the

record, then the court would inquire no further and would make the legal ruling as to whether

they fit within the defined exemption or exemptions.”). But, if a court finds that an “agency fails

to provide a sufficiently detailed explanation to enable the district court to make a de novo

determination of the agency’s claims of exemption, the district court . . . has several options,

including inspecting the documents in camera, requesting further affidavits, or allowing the

plaintiff discovery.” Spirko v. U.S. Postal Serv., 147 F.3d 992, 997 (D.C. Cir. 1998). At this

time, the Court will permit DOJ and Defendant-Intervenors another opportunity to present

further affidavits, if the parties intend to continue to rely on the deliberative process privilege.

Thus, 100Reporters’ cross-motion for summary judgment will also be denied on this issue,

pending possible supplementation by DOJ and Defendant-Intervenors.

Although the Court does not dictate the form of any supplemental affidavits or Vaughn

indices, DOJ must show, at the least: “(1) the nature of the specific deliberative process

involved” (including whether that process resulted in a decision independent of, although related

to, the ultimate compliance decision), “(2) the function and significance of the document in that

process, and (3) the nature of the decisionmaking authority vested in the document’s author and

22
Because DOJ has failed to sufficiently identify the deliberative process or processes at
issue, the Court cannot reach the questions of whether the withheld materials are predicisional or
deliberative in nature.

51
recipient.”23 Nat’l Sec. Counselors, 960 F. Supp. 2d at 189 (citing Senate of P.R., 823 F.2d at

585–86; Arthur Andersen & Co. v. IRS, 679 F.2d 254, 257–58 (D.C. Cir. 1982); Coastal States,

617 F.2d at 867–68)).

b. Purported Waiver of the Deliberative Process Privilege

Although the Court finds that the withholdings pursuant to the deliberative process

privilege have not been justified at this time, the Court will turn to a related issue disputed by the

parties. 100Reporters also argues that “circumstances [of the monitorship] would operate as a

waiver of the deliberative process privilege as to documents originating or shared with the

Monitor.” 100Reporters Mem. at 35. 100Reporters argues that, to the extent the Monitor was a

consultant to the government, sharing records with Siemens would waive any privilege. See

100Reporters Mem. at 35. This argument is misplaced.

As the Monitor notes in its reply, see Consolidated Reply Supp. Monitor’s Mot. Summ. J.

& Opp’n Pl.’s Cross-Mot. at 4–5, ECF No. 70, the cases cited by 100Reporters stand for the

proposition that voluntary disclosure to unnecessary third parties constitutes a waiver of the

deliberative process privilege. See Elec. Frontier Found. v. Dep’t of Justice, 890 F. Supp. 2d 35,

46 (D.D.C. 2012) (“[V]oluntary disclosure of privileged material . . . to unnecessary third parties

. . . waives the [deliberative process] privilege . . . . for the document or information specifically

released.” (alterations in original) (quoting In re Sealed Case, 121 F.3d 729, 741 (D.C. Cir.

1997) (per curiam))); Shell Oil Co. v. IRS, 772 F. Supp. 202, 206 (D. Del. 1991) (“[I]f an

23
Although the parties have not raised this issue, the Court also notes that, in certain
circumstances, “a document can lose its predecisional character—and the protections of the
privilege—if an agency adopts the document as its own.” See Judicial Watch, Inc. v. U.S. Dep’t
of Def., 847 F.3d 735, 739 (D.C. Cir. 2017). DOJ’s filings with the Court in the underlying
Siemens case contain little independent analysis, and, instead, rely heavily on the Monitor’s
work.

52
authorized disclosure is made to a non-federal party and the disclosure is not necessary to effect

the purpose of the document, a waiver occurs.”); see also Fla. House of Representatives v. U.S.

Dep’t of Commerce, 961 F.2d 941, 946 (11th Cir. 1992) (“Where an authorized disclosure is

voluntarily made to a non-federal party, the government waives any claim that the information is

exempt from disclosure under the deliberative process privilege.” (quoting Shell Oil Co., 772

F. Supp. at 211)). In other words, there is no waiver where the disclosure was both necessary

and required.24

In this case, the Monitor’s disclosures to Siemens were clearly necessary. The

monitorship imposed by the plea and settlement agreement called for the Monitor to carefully

analyze Siemens’ business practices and provide recommendations for improvements. See

Statement of Offense, Attach. 2 ¶¶ 3–4. That process would have been impossible if the Monitor

could not communicate with Siemens. Furthermore, the terms of the monitorship expressly

permitted Siemens, which presumably knows its business better than anyone, to comment on and

object to the Monitor’s recommendations, ensuring meaningful participation by Siemens, which,

in turn, allowed the Monitor to make more informed decisions. See Statement of Offense,

Attach. 2 ¶ 5. Thus, the Court finds that communications between the Monitor and Siemens

were necessary to best effectuate the plea and settlement agreement and the monitorship.

Second, the Monitor’s disclosures to Siemens were also clearly involuntary. A court will

only find a waiver of the deliberative process privilege where the disclosure was voluntary.

Mobil Oil Corp. v. EPA, 879 F.2d 698, 700–01 (9th Cir. 1989); Elec. Frontier Found., 890

F. Supp. 2d at 46. In Florida House of Representatives, the Eleventh Circuit determined that a

24
DOJ makes a similar argument in its reply brief. See DOJ Reply at 11–12 (“[T]he
Monitor’s disclosures to Siemens were both required and necessary.”). 100Reporters does not
respond to this point in its reply brief. See 100Reporters Reply at 14–17.

53
release was not voluntary when required by a court order. See 961 F.2d at 946. Here, the plea

and settlement agreement, which were approved by the court, required the Monitor to submit his

work plans and reports to Siemens. See Statement of Offense, Attach. 2 ¶ 3; Consent ¶ 5.

Therefore, the Court finds that the disclosure was involuntary. Because the disclosure of

information from the Monitor to Siemens was involuntary under the relevant court orders and

was necessary for the purposes of the plea and settlement agreement and the monitorship, the

Court concludes that the disclosures did not waive the deliberative process privilege.25

3. Attorney Work-Product Privilege

Finally, the Court will consider the withholdings made pursuant to the attorney work-

product doctrine. Documents “prepared in anticipation of litigation” are typically not

discoverable in civil litigation and are therefore exempt from disclosure under FOIA Exemption

5. See Shapiro v. U.S. Dep’t of Justice, 969 F. Supp. 2d 18, 27 (D.D.C. 2013) (quoting Fed. R.

Civ. P. 26(b)(3)(A)). The attorney work-product doctrine protects “the mental impressions,

conclusions, opinions, or legal theories of an attorney,” as well as “factual materials prepared in

anticipation of litigation.” Tax Analysts v. IRS, 117 F.3d 607, 620 (D.C. Cir. 1997) (quotation

marks omitted). This rule is rooted in the principle that “it is essential that a lawyer work with a

certain degree of privacy, free from unnecessary intrusion by opposing parties and their

counsel.” Hickman v. Taylor, 329 U.S. 495, 510 (1947).

The D.C. Circuit has explained that the proper test considers “whether, in light of the

nature of the document and the factual situation in the particular case, the document can fairly be

25
100Reporters also contends that DOJ withheld purely factual, non-deliberative
information pursuant to the deliberative process privilege. See 100Reporters Mem. at 36.
Generally, an agency should disclose severable and purely factual material. See Wolfe v. Dep’t
of Health & Human Servs., 839 F.2d 768, 774 (D.C. Cir. 1988) (en banc). The Court addresses
the question of segregability in greater detail below. See infra Part IV.D.

54
said to have been prepared or obtained because of the prospect of litigation.” FTC v. Boehringer

Ingelheim Pharms. Inc., 778 F.3d 142, 149 (D.C. Cir. 2015) (emphasis added) (quoting United

States v. Deloitte LLP, 610 F.3d 129, 137 (D.C. Cir. 2010)). The agency must establish that the

records were created with a “subjective belief that litigation was a real possibility, and that belief

must have been objectively reasonable.” In re Sealed Case, 146 F.3d 881, 884 (D.C. Cir. 1998).

Under this test, the agency must establish the following factors to justify its withholding:

“(1) provide a description of the nature of and contents of the withheld document, (2) identify the

document’s author or origin, (3) note the circumstances that surround the document’s creation,

and (4) provide some indication of the type of litigation for which the document’s use is at least

foreseeable.” Ellis v. U.S. Dep’t of Justice, 110 F. Supp. 3d 99, 108 (D.D.C. 2015), aff’d,

No. 15-5198, 2016 WL 3544816 (D.C. Cir. June 13, 2016).

In this case, DOJ states that it has withheld three categories of documents under the

attorney work-product privilege. First, DOJ states that is has withheld “emails between DOJ

attorneys that related to the monitorship.” DOJ Mem. at 20. Second, DOJ has withheld “draft

versions of notices to the Court about the corporate monitorship and proposed order.” DOJ

Mem. at 20. Third, DOJ has withheld “email messages between DOJ attorneys and SEC

attorneys.” DOJ Mem. at 20. In its reply, DOJ notes that 100Reporters did not address DOJ’s

invocation of the attorney work-product privilege, and argues that 100Reporters, “therefore,

concedes the arguments.” DOJ Reply at 10 n.3.

In fact, 100Reporters does not address the attorney work-product privilege in either of its

briefs. See generally 100Reporters Mem.; 100Reporters Reply. Nevertheless, even if the

nonmovant does not respond to a motion for summary judgment, the court cannot grant the

motion for the reason that it was conceded. See Winston & Strawn, LLP v. McLean, 843 F.3d

55
503, 505 (D.C. Cir. 2016) (“Under the Federal Rules of Civil Procedure, a motion for summary

judgment cannot be ‘conceded’ for want of opposition. ‘The burden is always on the movant to

demonstrate why summary judgment is warranted.’” (quoting Grimes v. District of Columbia,

794 F.3d 83, 97 (D.C. Cir. 2015) (Griffith, J., concurring))). Therefore, the Court will consider

the arguments raised by DOJ despite 100Reporters’ lack of a response.

Based on DOJ’s Amended Vaughn Index and the declaration of Ms. Moberly, the Court

finds that DOJ properly withheld these records pursuant to the attorney work-product privilege.

First, DOJ has provided “a description of the nature of and contents of the withheld document[s].”

Ellis, 110 F. Supp. 3d at 108. Ms. Moberly sets forth generally that the withheld records

“reflect[] communications and exchange of work-product among DOJ attorneys (and sometimes

also SEC attorneys) assigned to the Siemens monitorship concerning various aspects of the

monitorship, including the Monitor’s work plans and annual reports and the length of the

monitorship, and a draft of DOJ's notice concerning Siemens’ compliance with its plea

agreement.” Moberly Decl. ¶ 29. Furthermore, each entry of the Amended Vaughn Index

includes a description of the document that, while brief in some cases, provides a sufficiently

detailed description of its contents. See, e.g., DOJ_0005225, Am. Vaughn Index at 6 (“A draft of

a letter to Dr. Theo Waigel and F. Joseph Warin designed to provide feedback on the Monitor’s

proposed work plan.”); DOJ_005288, Am. Vaughn Index at 108 (“An email message to a DOJ

trial attorney concerning the timing of the termination of the monitorship.”).

Second, DOJ has sufficiently “identif[ied] the document’s author or origin.” Ellis, 110

F. Supp. 3d at 108. Ms. Moberly states that “[e]ach of the documents was prepared by an

attorney who was acting at the behest of a client (the U.S. Government).” Moberly Decl. ¶ 29.

Each entry of the Amended Vaughn Index also specifies the author or authors (sometimes

56
anonymously) of the relevant document. See, e.g., DOJ_0005288, Am. Vaughn Index at 111

(“Author(s): a DOJ trial attorney”); DOJ_0005291, Am. Vaughn Index at 120 (“Author: an SEC

attorney”).

Third, DOJ has sufficiently “note[d] the circumstances that surround the document’s

creation.” Ellis, 110 F. Supp. 3d at 108. Ms. Moberly explains that each of the withheld

documents was created in connection with the Siemens monitorship. See Moberly Decl. ¶ 29.

The Amended Vaughn Index provides additional information for each document, which permits

the Court to evaluate the circumstances surrounding the creation of each document, including the

document’s title, author, subject matter, and, where relevant, the recipient and date or time of a

communication. See, e.g., DOJ_005235, Am. Vaughn Index at 14 (“A letter [from a DOJ trial

attorney] to Dr. Theo Waigel and F. Joseph Warin acknowledging receipt of the Monitor’s year

one work plan and providing feedback on that document. The letter discusses issues raised

during the parties’ April 1, 2009 meeting, including Monitor independence, Monitor

recommendations to Siemens, the Monitor’s engagement of a consultant, and forensic analysis of

the company. The letter also contains DOJ’s views on the role that Siemens’ internal audit group

will play in the monitorship. The letter indicates that a copy was sent to a DOJ trial attorney.”);26

26
Although disclosure to third parties typically destroys the attorney–client privilege,
“the work product privilege is not automatically waived by any disclosure to a third party.” In re
Sealed Case, 676 F.2d 793, 809 (D.C. Cir. 1982). Instead, “[t]hree main factors determine
whether work-product protection has been waived: ‘(1) the party claiming the privilege seeks to
use it in a way that is not consistent with the purpose of the privilege; (2) the party had no
reasonable basis for believing that the disclosed materials would be kept confidential by the
[government]; and (3) waiver of the privilege in these circumstances would not trench on any
policy elements now inherent in this privilege.’” United States v. Williams Cos., Inc., 562 F.3d
387, 394 (D.C. Cir. 2009) (second alteration in original) (quoting In re Subpoenas Duces Tecum,
738 F.2d 1367, 1372 (D.C. Cir. 1984)). No party has provided any reason to doubt that DOJ’s
reliance on the privilege is consistent with the purpose of the privilege, that DOJ reasonably
believed the letter would be kept confidential, and that DOJ’s reliance is consistent with the
policy objectives of the privilege.

57
DOJ_005288, Am. Vaughn Index at 108 (“An email message [with the subject “Siemens Year 3

Report] to a DOJ trial attorney [sent by another DOJ trial attorney on September 6, 2011]

concerning the timing of the termination of the monitorship”).

Fourth and finally, DOJ has sufficiently “provide[d] some indication of the type of

litigation for which the document’s use is at least foreseeable.” Ellis, 110 F. Supp. 3d at 108.

Here, every document related to “the prospect of continuing litigation concerning Siemens’

compliance with the plea agreement, the duration of the monitorship, etc.” Moberly Decl. ¶ 29.

Each entry of the Amended Vaughn Index that invoked the attorney work-product privilege

indicated that the “document was prepared by an attorney . . . in anticipation of litigation or in

connection with actual litigation, i.e., United States v. Siemens Aktiengesellschaft, 08-cr-367-RJL

(D.D.C.) and the implementation of the plea agreement therein.” See, e.g., DOJ_005225, Am.

Vaughn Index at 7.

These documents are classic attorney work-product, and disclosure would risk putting the

thoughts and strategies of agency counsel on public display. See Hickman, 329 U.S. at 510;

Ellis, 110 F. Supp. 3d at 108. The records include analysis, recommendations, and strategic

considerations created in connection with the underlying criminal cases. And, despite the fact

that the documents were created after the entry of Siemens’ plea and settlement, the materials are

sufficiently prospective because they relate to the government’s decision to accept the

termination of the monitorship or to potentially raise other issues in the enforcement action.

There is no doubt that the materials were created “because of the prospect of litigation.”

Boehringer Ingelheim Pharms., 778 F.3d at 149 (quoting Deloitte, 610 F.3d at 137). The Court

finds that DOJ has shown that the attorney work-product privilege applies to the withheld

58
materials. Therefore, the Court grants summary judgment to DOJ with respect to its Exemption

5 withholdings under this privilege.

C. Exemptions 6 and 7(C)

Exemption 6 protects “personnel and medical files and similar files the disclosure of

which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C.

§ 552(b)(6). Exemption 7(C) excludes “records or information compiled for law enforcement

purposes . . . to the extent that the production of such law enforcement records or information . . .

could reasonably be expected to constitute an unwarranted invasion of personal privacy.” Id.

§ 552(b)(7)(C). Both exemptions require agencies and reviewing courts to “balance the privacy

interests that would be compromised by disclosure against the public interest in the release of the

requested information.” Beck v. Dep’t of Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993) (quoting

Davis v. Dep’t of Justice, 968 F.2d 1276, 1281 (D.C. Cir. 1992)).

Although the balancing test is applied to both Exemption 6 and 7(C), “‘Exemption 7(C)

is more protective of privacy than Exemption 6’ and thus establishes a lower bar for withholding

material.” Prison Legal News v. Samuels, 787 F.3d 1142, 1146 n.5 (D.C. Cir. 2015) (quoting

ACLU v. U.S. Dep’t of Justice, 655 F.3d 1, 6 (D.C. Cir. 2011)); see also U.S. Dep’t of Def. v.

Fed. Labor Relations Auth., 510 U.S. 487, 496 n.6 (1994) (“Exemptions 7(C) and 6 differ in the

magnitude of the public interest that is required to override the respective privacy interests

protected by the exemptions.”). Specifically, “the balance tilts more strongly toward

nondisclosure in the context of Exemption 7(C) because ‘Exemption 7(C)’s privacy language is

broader than the comparable language in Exemption 6 in two respects.’” Braga v. FBI, 910 F.

Supp. 2d 258, 267 (D.D.C. 2012) (quoting Reporters Comm., 489 U.S. at 756). First, Exemption

6 “encompasses ‘clearly unwarranted’ invasions of privacy, while Exemption 7(C) omits the

59
adverb ‘clearly.’” Id. Second, Exemption 7(C) lowers the risk of harm standard from “would”

to “could reasonably be expected to” constitute an invasion. Id. The differences in the language

between the two exemptions reflect Congress’s decision to provide the government with “greater

flexibility in responding to FOIA requests for law enforcement records or information” than in

responding to requests for personnel, medical, and other similar files. See Reporters Comm., 489

U.S. at 777 n.22.

Accordingly, if the documents withheld and information redacted were “compiled for law

enforcement purposes,” the Court need engage only in an analysis of whether the defendant

properly redacted information and withheld documents pursuant to Exemption 7(C). See People

for the Ethical Treatment of Animals v. Nat’l Insts. of Health, 745 F.3d 535, 541 (D.C. Cir. 2014)

(confining its FOIA analysis to Exemption 7(C) because its “privacy language is broader than the

comparable language in Exemption 6” (quoting Reporters Comm., 489 U.S. at 756)); Roth v.

U.S. Dep’t of Justice, 642 F.3d 1161, 1173 (D.C. Cir. 2011) (finding “no need to consider

Exemption 6 separately [where] all information that would fall within the scope of Exemption 6

would also be immune from disclosure under Exemption 7(C)”); Rodriguez v. U.S. Dep’t of the

Army, 31 F. Supp. 3d 218, 231 (D.D.C. 2014). Therefore, as an initial matter, the Court must

determine whether Exemption 7 applies to the withholdings in this case.

1. Exemption 7 Threshold Question

“In order to withhold documents under Exemption 7, the agency must, as a preliminary

matter” make a “threshold” showing demonstrating “that the records were compiled for a law

enforcement purpose.” Kay v. FCC, 976 F. Supp. 23, 37 (D.D.C. 1997). Agencies classified as

law enforcement agencies, like the DOJ in this case, receive deference to their assertion that

documents were compiled for a law enforcement purpose. See Pratt v. Webster, 673 F.2d 408,

60
418 (D.C. Cir. 1982) (rooting deference in “the generally accurate assumption that federal

agencies act within their legislated purposes”). A court’s review of this threshold question is

“necessarily deferential,” but the review is “not vacuous.” Id. at 421.

To be sure, not every document compiled by a law enforcement agency is compiled for a

law enforcement purpose. See, e.g., Am. Immigration Council v. U.S. Dep’t of Homeland Sec.,

950 F. Supp. 2d 221, 245–46 (D.D.C. 2013) (relying on Pratt to reject ICE’s argument that all of

its records are compiled for a law enforcement purpose); Benavides v. Bureau of Prisons, 774

F. Supp. 2d 141, 146–47 (D.D.C. 2011) (relying on Pratt to reject a “per se” rule that all BOP

documents are created for law enforcement purposes and finding that the recordings of inmates’

telephone conversations were not compiled for law enforcement purposes). Instead, the agency

must establish “(1) ‘a rational nexus between the investigation and one of the agency’s law

enforcement duties;’ and (2) ‘a connection between an individual or incident and a possible

security risk or violation of federal law.’” Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331

F.3d 918, 926 (D.C. Cir. 2003) (quoting Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 32 (D.C.

Cir. 1998); see also Pratt, 673 F.2d at 420 (setting forth the rational nexus test for the first time

in this circuit).

In 1986, Congress amended Exemption 7 to broaden the reach of the threshold

requirement from “investigatory records compiled for law enforcement purposes,” 5 U.S.C.

§ 552(b)(7) (1982) (emphasis added), to simply “records or information compiled for law

enforcement purposes,” Anti-Drug Abuse Act of 1986, § 1802(a), Pub. L. No. 99-570, 100 Stat.

3207, 3207–48 (1986); see also Tax Analysts v. IRS, 294 F.3d 71, 79 (D.C. Cir. 2002). The D.C.

Circuit has made clear that, after the amendments, the Pratt test applies only “when an agency

seeks to invoke Exemption 7 in a situation in which there is an ongoing law enforcement

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‘investigation,’” but in that context, it “is still good law.” Tax Analysts, 294 F.3d at 77–78.

If there is no ongoing investigation, materials may still meet the threshold requirement of

Exemption 7 if they are akin to “guidelines, techniques, and procedures for law enforcement

investigations and prosecutions outside of the context of a specific investigation.” Id. at 78.

100Reporters argues that “[t]he Monitor’s review of Siemens’ compliance was not a

criminal investigation.” 100Reporters Mem. at 47. Instead, 100Reporters contends that the

investigation into Siemens closed at the time the company signed the plea agreement and civil

settlement. See 100Reporters Mem. at 47. 100Reporters also points to DOJ’s declarant who

states that DOJ “could not conduct the kind of reviews that monitors conduct because [DOJ’s]

limited resources are focused on investigating and prosecuting violations of the FCPA.”27 Helou

Decl. ¶ 16.

DOJ’s response to 100Reporters on this point is brief. DOJ argues that the records at

issue were compiled “pursuant to a plea agreement in a criminal case.” DOJ Reply at 26–27.

DOJ also contends that the criminal “case did not conclude[] with the entry of the plea

agreement, but rather remained open during the duration of the monitorship, as the plea

agreement imposed continuing duties on Siemens.” DOJ Reply at 26. DOJ also points to a line

27
In its reply, 100Reporters also relies on Bristol-Myers Co. v. FTC, 424 F.2d 935 (D.C.
Cir. 1970). See 100Reporters Reply at 18. 100Reporters quotes language from that decision that
states “an agency cannot, consistent with the broad disclosure mandate of the Act, protect all its
files with the label ‘investigatory’ and a suggestion that enforcement proceedings may be
launched at some unspecified future date.” Bristol-Myers, 424 F.2d at 940. That court also
determined that Exemption 7 would apply after the close of an investigation “[i]f further
adjudicatory proceedings are imminent.” Id. This reference is not persuasive. In fact, four years
later, the D.C. Circuit stated that, “[i]t is established now that the Government need not show
imminent adjudicatory proceedings or the concrete prospect of enforcement proceedings.” Rural
Hous. All. v. U.S. Dep’t of Agric., 498 F.2d 73, 80 (D.C. Cir. 1974) (quotation marks omitted).
Furthermore, to the extent that Bristol-Myers was not expressly rejected on this point, the opinion
does not account for the last fifty years, including amendments to FOIA or Pratt and its progeny.

62
of cases suggesting that a court’s analysis in this context should “focus . . . on how and under

what circumstances the requested files were compiled, and whether the files sought relate to

anything that can fairly be characterized as an enforcement proceeding.” Jefferson v. Dep’t of

Justice, 284 F.3d 172, 176–77 (D.C. Cir. 2002) (citations and internal quotation marks omitted);

see also DOJ Reply at 26.

Neither party has presented any authority directly analogous to the facts of this case.

Instead, the Court turns to the general principles set forth by the D.C. Circuit. First, as a law

enforcement agency, DOJ’s assertion that these documents were compiled for a law enforcement

purpose warrants deference. See Pratt, 673 F.2d at 418. Where the purported law enforcement

purpose is an investigation, the agency must “establish “(1) ‘a rational nexus between the

investigation and one of the agency’s law enforcement duties;’ and (2) ‘a connection between an

individual or incident and a possible security risk or violation of federal law.’” Ctr. for Nat’l

Sec. Studies, 331 F.3d at 926. Here, there is no doubt that DOJ has a duty to enforce the FCPA

and Siemens committed an actual violation of federal law. The more difficult question is

whether documents compiled after the entry of a guilty plea constitute a part of the investigation.

Neither party has presented authority that specifically addresses this issue. The Court finds that

the post-plea compilation in this case is part of an ongoing investigation, because DOJ had an

ongoing responsibility to enforce the terms of the plea agreement and could bring additional

enforcement action if Siemens failed to comply.

Even if the records were not compiled as part of an investigation, the Court would still

find that they were compiled for a law enforcement purpose. As the Court explained above,

Congress amended Exemption 7 to broaden the reach of the threshold requirement from

“investigatory records compiled for law enforcement purposes,” 5 U.S.C. § 552(b)(7) (1982)

63
(emphasis added), to simply “records or information compiled for law enforcement purposes,”

Anti-Drug Abuse Act of 1986, § 1802(a), Pub. L. No. 99-570, 100 Stat. 3207, 3207 (1986). In

light of that change, the D.C. Circuit has applied Exemption 7 to “guidelines, techniques, and

procedures for law enforcement investigations and prosecutions outside of the context of a

specific investigation.” Tax Analysts, 294 F.3d at 78. Here, compilation of the records at issue

was necessary to DOJ and the SEC’s ongoing enforcement against Siemens, which did not

conclude until after the end of the monitorship. See generally Monitorship Notice.28

For these reasons, and the deference owed to DOJ in this context, see Pratt, 673 F.2d at

418, the Court finds that the records compiled during the monitorship were compiled for a law

enforcement purpose. Thus, the Court concludes that DOJ may rely on Exemption 7 in order to

withhold information.

2. Exemption 7(C)

Under Exemption 7(C), a court first determines if there is a privacy interest in the

information to be disclosed. See ACLU v. U.S. Dep’t of Justice, 655 F.3d 1, 6–7 (D.C. Cir.

2011). If the court finds a privacy interest, the next step is to balance the individual’s privacy

interest against the public interest, considering only the public interest “that focuses on ‘the

citizens’ right to be informed about what their government is up to.’” Davis v. U.S. Dep’t of

Justice, 968 F.2d 1276, 1282 (D.C. Cir. 1992) (quoting Reporters Comm., 489 U.S. at 773). It is

the FOIA requester’s obligation to articulate a public interest sufficient to outweigh the

28
In a different context, the timing of a conviction is not dispositive of whether records
were compiled for a law enforcement purpose. Specifically, several courts have made clear that
records created in connection with the Bureau of Prisons’ responsibility to protect inmates, staff,
and the community are compiled for a law enforcement purpose, regardless of whether the
records are tied to any pending prosecution. See, e.g., Pinson v. Dep’t of Justice, No. 12-1872,
2017 WL 663523, at *18 (D.D.C. Feb. 17, 2017); Mingo v. U.S. Dep’t of Justice, 793 F. Supp.
2d 447, 453 (D.D.C. 2011); Holt v. U.S. Dep’t of Justice, 734 F. Supp. 2d 28, 41 (D.D.C. 2010).

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individuals’ privacy interest, and the public interest must be significant. See Nat’l Archives &

Records Admin. v. Favish, 541 U.S. 157, 172 (2004).

Courts have “long recognized” that a “mention of an individual’s name in a law

enforcement file will engender comment and speculation and carries a stigmatizing connotation.”

Roth v. U.S. Dep’t of Justice, 642 F.3d 1161, 1174 (D.C. Cir. 2011) (quoting Schrecker v. U.S.

Dep’t of Justice, 349 F.3d 657, 666 (D.C. Cir. 2003)). For those reasons, substantial privacy

interests are implicated under exemption 7(C) for targets of law enforcement investigations,

potential defendants, witnesses, informants, and investigators. See SafeCard Servs. v. SEC, 926

F.2d 1197, 1205 (D.C. Cir. 1991). In fact, the D.C. Circuit has adopted “a categorical rule

permitting an agency to withhold information identifying private citizens mentioned in law

enforcement records, unless disclosure is ‘necessary in order to confirm or refute compelling

evidence that the agency is engaged in illegal activity.’” Schrecker, 349 F.3d at 661 (quoting

SafeCard Servs., 926 F.2d at 1206).

Here, DOJ has withheld “private personal information” in a range of different documents.

See Moberly Decl. ¶¶ 30, 34. According to DOJ, the withheld materials include information

pertaining to both law enforcement personnel and Siemens employees. See DOJ Reply at 28.

DOJ explains that the withheld material includes “personal identifying information” pertaining to

(1) government employees found in emails involving DOJ and SEC attorneys, (2) private

individuals and government employees found in correspondence between the Siemens Board and

government attorneys, (3) individuals who developed Siemens’ compliance programs and

training materials, and (4) various individuals identified in draft court filings. See DOJ Mem. at

35. In each instance, DOJ has withheld identical material under both Exemption 6 and

Exemption 7(C). See Moberly Decl. ¶¶ 30, 34; see generally Am. Vaughn Index.

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 In identifying the private interests at stake, DOJ’s declarant states generally that “[p]ublic

identification of the DOJ and SEC personnel involved in the Siemens monitorship could subject

them to harassment both in the conduct of their official duties and their private lives.” Moberly

Decl. ¶ 32. Ms. Moberly also states that “individuals—whether targets, suspects, or witnesses—

have a strong interest in not being unfairly associated publicly with alleged criminal activity,”

and that “[t]he mention of a private individual’s name in a law enforcement file engenders

comment and speculation and could produce an unfair stigma which could expose the individual

to harassment or criticism.” Moberly Decl. ¶ 32. Each entry of the Amended Vaughn Index that

invokes Exemption 6 and 7(C) includes identical language that states:

This document contains personal information concerning private individuals
and/or government employees acting in their official capacity whose release could
reasonably be expected to “constitute an unwarranted invasion of personal
privacy.” Disclosure could subject him/her to harassment both in the conduct of
their official duties and private life. The document also contains personal
information concerning private individuals and/or government employees acting
in their official capacity whose release would constitute a clearly unwarranted
invasion of their personal privacy. The mention of a private individual’s name in
a law enforcement file engenders comment and speculation and could produce an
unfair stigma which could expose the individual to harassment or criticism.

DOJ_0005217, Am. Vaughn Index at 1.

As 100Reporters notes, the evidence presented in support of this assertion is relatively

sparse, and DOJ does little to differentiate the privacy interests of different individuals, or even

different groups, such as Siemens employees and government personnel. See 100Reporters

Mem. at 42. DOJ responds that it has “adequately articulated the separate interest of government

personnel and Siemens employees in avoiding unwarranted invasions of their personal privacy.”

DOJ Reply at 28 n.12 (citing Moberly Decl. ¶¶ 32, 35). In fact, the relevant declaration merely

states that identification of government personnel “could subject them to harassment both in the

conduct of their official duties and their private lives,” while identifying private individuals

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“engenders comment and speculation and could produce an unfair stigma which would expose

the individual to harassment or criticism.” Moberly Decl. ¶ 32. These interests are substantially

similar, and DOJ has made little effort, in its Amended Vaughn Index or its declarations, to

differentiate the privacy concerns at stake. DOJ’s failure to justify this categorical approach is

fatal to its withholdings.

The D.C. Circuit has explained that categorical withholdings may be permitted where

“the FOIA litigation process threatens to reveal ‘the very information the agency hopes to

protect.’” Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, 746 F.3d 1082,

1088 (D.C. Cir. 2014) (quoting ACLU v. CIA, 710 F.3d 422, 432 (D.C. Cir. 2013)). In Prison

Legal News v. Samuels, the Bureau of Prisons (“BOP”) took a categorical approach to

Exemption 6 withholdings, but the D.C. Circuit determined that BOP provided insufficient

explanation of the disparate privacy rights involved.29 787 F.3d 1142 (D.C. Cir. 2015).

In that case, the plaintiff sought records of settlements paid by BOP, and BOP discussed

the privacy interests implicated by different types of claims together, even though “the privacy

interest of tort claimants will be different when they are claiming injury from a slip and fall as

compared to a sexual assault.” Id. at 1150. The BOP also grouped together all involved

individuals, “fail[ing] to distinguish between redacting the identity of the alleged victim and the

alleged perpetrator.” Id. at 1150. Although the D.C. Circuit explained that categorical

withholdings might be appropriate for individuals sharing similar privacy interests, such as

29
Prison Legal News involved Exemption 6, and the Court noted that it had no reason to
reach Exemption 7(C) because the district court below had relied exclusively on Exemption 6.
787 F.3d at 1146 n.5. Nevertheless, Prison Legal News relied on Exemption 7(C) cases to reject
the BOP’s categorical approach. Id. at 1149 (quoting Citizens for Responsibility & Ethics in
Washington v. U.S. Dep’t of Justice, 746 F.3d 1082, 1088 (D.C. Cir. 2014)). Although
Exemption 7(C) is more protective than Exemption 6, the balancing processes are similar and the
Court finds that the logic of Prison Legal News applies in the context of Exemption 7.

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“medical professionals who treat inmates” or “prisoners who testify in FTCA claims,” the court

determined that BOP’s less precise method was insufficient. Id. at 1150–51; see also Am.

Immigration Lawyers Ass’n v. Exec. Office for Immigration Review, 830 F.3d 667, 675 (D.C.

Cir. 2016) (“Given the variety in types of complaints and circumstances of individual

immigration judges, not every judge has the same privacy interests at stake and not every

complaint would equally enlighten the public . . . .”).

DOJ has done even less to distinguish the privacy interests at stake here. First, it may

well be true that the identities of low-level Siemens employees should be withheld. To be sure,

the D.C. Circuit has adopted “a categorical rule permitting an agency to withhold information

identifying private citizens mentioned in law enforcement records, unless disclosure is

‘necessary in order to confirm or refute compelling evidence that the agency is engaged in illegal

activity.’” Schrecker, 349 F.3d at 661–62 (quoting SafeCard Servs., 926 F.2d at 1206).

And 100Reporters has not asserted any evidence, much less compelling evidence, that the

agency is engaged in illegal activity. But DOJ has not differentiated the interests of these

individuals from others (e.g., innocent third-party employees versus employees who committed

illegal acts). Nor has DOJ articulated any subgroups of Siemens employees, and how their

interests might differ.

Second, DOJ has not differentiated the interests of regular Siemens employees and Board

Members. DOJ has withheld personal information found in correspondence between the

Siemens Board and government attorneys. The Court notes that all members of both Siemens’

Managing Board and Supervisory Board are listed on Siemens’ website. See Siemens, Siemens

Management, https://www.siemens.com/global/en/home/company/about/management.html (last

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visited Mar. 31, 2017). DOJ has not differentiated the privacy interests of members of the

Siemens Board, who have different privacy interests based on their public, high-level positions.

Third, DOJ has not differentiated the privacy interests of government employees,

including DOJ and SEC attorneys. This category of individuals appears to include a subcategory

of attorneys who have entered appearances on the public docket on behalf of the government.

Although public officials “do not surrender all rights to personal privacy when they accept a

public appointment,” courts have recognized that they “may have a somewhat diminished

privacy interest.” Citizens for Responsibility & Ethics in Washington v. U.S. Dep't of Justice,

746 F.3d 1082, 1092 (D.C. Cir. 2014) (quoting Quinon v. FBI, 86 F.3d 1222, 1230 (D.C. Cir.

1996). An Exemption 7(C) analysis may also take into account “the rank of the public official

involved.” Kimberlin v. Dep’t of Justice, 139 F.3d 944, 949 (D.C. Cir. 1998). Courts have

acknowledged that the “reason for generally protecting names in law enforcement records is the

risk of harassment, embarrassment, and reputational damage,” but explained that those risks are

not applicable in the context of every government employee. See Kleinert v. Bureau of Land

Mgmt., 132 F. Supp. 3d 79, 93 (D.D.C. 2015). DOJ has not done enough to differentiate the

interests of the various government employees in the context of this case. Nor has DOJ made

clear how the interests of employees, particularly those who have publicly appeared on the

record, differ from one another.

Finally, DOJ has stated that it “redacted certain personal identifying information from

documents transmitted by the Monitor to attorneys at the DOJ and SEC.” DOJ Mem. at 37.

In support of that statement, DOJ cites an entry in the Amended Vaughn Index that states that the

record was “sent to Dr. Theo Waigel, two Siemens employees, and a Gibson Dunn & Crutcher

attorney.” DOJ_0005313, Am. Vaughn Index at 132. To the extent that DOJ is withholding the

69
identities of the Monitor’s counsel, or any further category of “[o]ther private third-parties,” see

DOJ Mem. at 37, DOJ must do more to differentiate those privacy interests as well.30

DOJ’s failure to establish the different privacy interests at stake makes it impossible for

the Court to balance the private interests with the public’s interest in knowing “what their

government is up to.” Reporters Comm., 489 U.S. at 773. Therefore, the Court must deny

summary judgment with regard to DOJ’s withholdings. If DOJ and Defendant-Intervenors

intend to continue to rely on Exemption 7(C), they will have another opportunity to present

further affidavits justifying the withholdings. Although DOJ is not necessarily prohibited from

relying on categorical arguments, it should, at the least, “make a more particularized showing for

defined subgroups.” See Am. Immigration Lawyers Ass’n, 830 F.3d at 676; see also Prison

Legal News, 787 F.3d at 1151–52. At this time, 100Reporters’ cross-motion for summary

judgment will also be denied on this issue.

D. Segregable Factual Material and In Camera Review

The final issue that the Court must address is segregability. FOIA requires that “[a]ny

reasonably segregable portion of a record . . . be provided to any person requesting such record

after deletion of the portions which are exempt.” 5 U.S.C. § 552(b). Under FOIA, “non-exempt

portions of a document must be disclosed unless they are inextricably intertwined with exempt

portions.” Mead Data Cent., Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 260 (D.C. Cir.

1977). An agency is not, however, required to segregate non-exempt material if “the excision of

exempt information would impose significant costs on the agency and produce an edited

document with little informational value.” Neufeld v. IRS, 646 F.2d 661, 666 (D.C. Cir. 1981),

30
To the extent that DOJ is withholding the identities of the Monitor’s counsel, the Court
notes that the Monitor and his counsel identify themselves in this case and argue not that they are
private citizens, but that they are akin to government consultants.

70
overruled on other grounds by Church of Scientology of Cal. v. IRS, 792 F.2d 153 (D.C. Cir.

1986) (en banc). The agency is “entitled to a presumption that [it] complied with the obligation

to disclose reasonably segregable material,” Hodge v. FBI, 703 F.3d 575, 582 (D.C. Cir. 2013)

(alteration in original), but that does not excuse the agency from carrying its evidentiary burden

to fully explain its decisions on segregability, see Army Times Pub. Co. v. U.S. Dep’t of the Air

Force, 998 F.2d 1067, 1068 (D.C. Cir. 1993).

Here, DOJ argues that it is impossible to further segregate and release purely factual

material from withheld documents without disclosing information that is protected by FOIA

exemptions. See DOJ Mem. at 38–40. DOJ relies on Ms. Moberly’s declaration, which states

that she has “reviewed each page of the material deemed responsive . . . to determine whether

there was any non-exempt information that could be reasonably segregated and released.”

Moberly Decl. ¶ 37. Ms. Moberly states that “some factual information” is being withheld under

the deliberative process privilege because it is “inextricably intertwined with core deliberative

material” and, “[m]oreover, the factual material reflects the Monitor’s efforts to distill material

facts from a much larger body of information, which was itself a deliberative act.” Moberly

Decl. ¶ 38. Aside from that information and information that has already been released, Ms.

Moberly states that “there is no segregable non-exempt information.” Moberly Decl. ¶ 39.

The adequacy of an agency’s Vaughn index is a crucial factor when a district court

undertakes a segregability analysis. See, e.g., Loving v. U.S. Dep’t of Defense, 550 F.3d 32, 41

(D.C. Cir. 2008) (stating that “the description of the document set forth in the Vaughn index and

the agency’s declaration that it released all segregable material” are “‘sufficient for [the

segregability] determination’” (quoting Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d 771,

776 (D.C. Cir. 2002))); Johnson, 310 F.3d at 776 (upholding agency’s segregation efforts based

71
on “comprehensive Vaughn index” and “the affidavits of [agency officials]”). In this case, the

Court has determined that the Amended Vaughn Index and the declarations presented by DOJ

and Defendant-Intervenors are sufficient to justify DOJ’s decision to withhold certain categories

of information pursuant to Exemption 4. See supra Part.IV.A. Whether the documents that have

been withheld in total or have been redacted beyond comprehension contain only those

categories of properly withheld information is a much more difficult question. Furthermore, the

Court has determined that the Amended Vaughn Index and the declarations presented by DOJ

and Defendant-Intervenors are not sufficient to justify withholdings pursuant to the deliberative

process privilege or pursuant to Exemptions 6 and 7(C). See supra Parts IV.B.2.a, IV.C.2.

100Reporters requests the Court to “conduct in camera review of the documents to

determine if . . . they contain commercial or financial information, and that disclosure would

impair future information gathering.” 100Reporters Mem. at 28 n.17. “In making a

determination as to segregability . . . , a district court judge ‘may examine the contents of . . .

agency records in camera.’” Armstrong v. Executive Office of the President, 97 F.3d 575, 577

(D.C. Cir. 1996) (second alteration in original) (quoting 5 U.S.C. § 552(a)(4)(B)). The D.C.

Circuit has held that district courts have “broad discretion” to decide whether in camera review

is necessary to determine whether the government has met its burden. See id.

In light of the expansive withholdings in this case and the Court’s denial of summary

judgment with regard to the deliberative process privilege, the Court will exercise its discretion

to require the production of representative documents for review in camera. See Lam Lek Chong

v. U.S. Drug Enf’t Admin., 929 F.2d 729, 735 (D.C. Cir. 1991) (noting that in camera review is

appropriate “when agency affidavits are insufficiently detailed to permit meaningful review of

exemption claims”); see also Horowitz v. Peace Corps, 428 F.3d 271, 282 (D.C. Cir. 2005)

72
(noting that “whether to conduct an in camera review of a document is within the trial court’s

‘broad discretion’” (quoting Spirko v. U.S. Postal Serv., 147 F.3d 992, 996 (D.C. Cir. 1998))).

Specifically, DOJ shall provide the Court with one work plan and one annual report prepared by

the Monitor, including all attachments to those two documents. DOJ shall present the documents

in a manner that makes clear to the Court which portions of the documents were redacted. For

each document presented to the Court for in camera review, DOJ shall either indicate that the

document was redacted in full or identify specific portions of the document that were redacted by

marking those portions with semi-transparent gray highlighting. DOJ shall also indicate which

exemptions apply to all redacted material. For these reasons, the Court denies summary

judgment to DOJ on the question of segregability, without prejudice, pending the Court’s in

camera review of representative documents.

V. CONCLUSION

For the foregoing reasons, the Monitor’s Motion for Summary Judgment (ECF No. 57) is

GRANTED IN PART AND DENIED IN PART, Siemens’ Motion for Summary Judgment

(ECF No. 58) is GRANTED IN PART AND DENIED IN PART, DOJ’s Motion for Summary

Judgment (ECF No. 59) is GRANTED IN PART AND DENIED IN PART, and 100Reporters’

Cross-Motion for Summary Judgment (ECF No. 62) is DENIED. An order consistent with this

Memorandum Opinion is separately and contemporaneously issued.

Dated: March 31, 2017 RUDOLPH CONTRERAS
United States District Judge

73