Cowan v. Federal Communication Commission

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

SUSAN WILSON COWAN,

Plaintiff,

v. Case No. 21-cv-895-RMM

FEDERAL COMMUNICATIONS
COMMISSION,

Defendant.

MEMORANDUM OPINION AND ORDER

This is a FOIA action brought by journalist Susan Wilson Cowan (“Ms. Wilson”) against

the Federal Communications Commission (“FCC”). Ms. Wilson seeks documents that the FCC

obtained from Sinclair Broadcast Group (“Sinclair”) after the company’s proposed acquisition of

another television broadcast company, Tribune Media Company (“Tribune”), drew significant

scrutiny from both the FCC and the public at large. The documents Sinclair sent to the FCC

ultimately formed the basis of a consent decree, in which the FCC determined that Sinclair had

structured its planned transactions based on a good faith interpretation of FCC rules. Ms. Wilson

believes the documents will tell a different story. The FCC agreed to produce some of the

documents requested but withheld others under FOIA Exemption 4. The parties have cross-

moved for summary judgment; the FCC also requests a protective order to shield from further

disclosure information the agency inadvertently disclosed. 1 For the reasons set forth below, the

1
The opinion is based on the following relevant filings: The FCC’s Motion for Protective
Order, ECF No. 21 (“Mot. for Prot. Order”) and related exhibits, including the Declaration of
Sarah Citrin, ECF No. 21-3 (“Citrin Decl.”); the FCC’s Revised Vaughn Index, ECF No. 23-1
(“2d Vaughn Index”); two declarations by FCC Senior Counsel Christopher Santini, ECF Nos.
14-1 (“July Santini Decl.”) and 23-2 (“Nov. Santini Decl.”); Ms. Wilson’s Memorandum in
Support of her Motion for Summary Judgment, ECF No. 25-1 (“Pl. Mem.”), the related exhibit,
and the supporting Statement of Material Facts, ECF No. 25-3 (“Pl. Fact Stmt.”); the FCC’s
1
Court DENIES Ms. Wilson’s first motion for summary judgment (ECF No. 15), as moot,

DENIES WITHOUT PREJUDICE Ms. Wilson’s amended motion for summary judgment (ECF

No. 25) and the FCC’s cross-motion for summary judgment (ECF No. 26), and GRANTS IN

PART the FCC’s Motion for Protective Order (ECF No. 21).

BACKGROUND

In 2017, Sinclair and Tribune announced their intent to transfer control of Tribune’s

television stations to Sinclair for $3.9 billion. See FCC Fact Stmt. ¶ 1; Pl. Mem. at 4. The

transaction would have made Sinclair “the nation’s largest broadcaster, with [control of] as many

as 233 stations across the country.” In the Matter of Sinclair Broad. Grp., 35 FCC Rcd. 5877,

5897 (2020) (hereafter “Consent Decree”) (Statement of Commissioner Rosenworcel,

dissenting).

FCC approval was required to complete the transfer, so on June 28, 2017, Sinclair and

Tribune filed applications with the agency. See FCC Fact Stmt. ¶ 1. The applications were later

amended to include divestiture proposals for three Tribune stations. Id. ¶¶ 2–4. The divestitures

made economic sense to Sinclair, see Shapiro Decl. ¶ 3(b), and were also likely influenced by the

FCC’s multiple ownership rules, which govern the number of stations a company can control in a

market as well as the total number of stations a company can control nationwide. See Pl. Mem.

Memorandum in Support of its Motion for Summary Judgment, Opposition to Plaintiff’s Motion
for Summary Judgment, and Reply in Support of a Protective Order, ECF No. 26 (“FCC Mem.”),
the related exhibits and declarations, including the Declarations of Scott Shapiro, ECF No. 26-1
(“Shapiro Decl.”), Barbara Kreisman, ECF No. 26-2 (“Kreisman Decl.”), and Sima Nilsson, ECF
No. 26-3 (“Nilsson Decl.”), and the FCC’s Statement of Material Facts, ECF No. 26-6 (“FCC
Fact Stmt.”); Ms. Wilson’s Opposition Memorandum, ECF No. 29 (“Pl. Reply”) and supporting
exhibit; and the FCC’s Reply, ECF No. 30 (“FCC Reply”). Throughout, page citations to
documents in the record refer to the document’s original pagination, unless the page is
designated with an asterisk (e.g., *1), in which case the reference is to the pagination assigned by
PACER/ECF.

2
at 4–5; Nov. Santini Decl. ¶ 10. Under the divestiture proposal, Sinclair would have sold KDAF

(a Dallas station) and KIAH (a Houston station) to Cunningham Broadcast Corporation for $60

million. See FCC Fact Stmt. ¶ 3; Pl. Mem. at 4. Sinclair would have sold WGN-TV (a Chicago

station) to WGN-TV LLC, a company owned by Steven Fader, for $60 million. See FCC Fact

Stmt. ¶ 4; Pl. Mem. at 4.

The proposed deals attracted significant public scrutiny. Journalists, including Ms.

Wilson, reported on Sinclair’s plans, suggesting that Sinclair was attempting to use “front

companies” to circumvent FCC ownership rules. See Pl. Mem. at 4–5. Among other things, Ms.

Wilson pointed out the close relationships between Sinclair executives and the company’s

proposed divestiture partners, Cunningham Broadcast and Steven Fader. See id. In response to

these and similar allegations, the FCC designated the Sinclair-Tribune transfer applications for

hearing before an administrative law judge. See FCC Fact Stmt. ¶¶ 5–6; July Santini Decl. ¶ 7.

The purpose of the hearing was to determine whether Sinclair was the real party-in-interest in the

proposed KDAF, KIAH, and WGN-TV divestitures and whether Sinclair had made

misrepresentations or lacked candor in its communications to the FCC. Id.; see also Consent

Decree at 5877 ¶ 2, 5882–83 ¶ 4. The agency also expressed concerns about the proposed

divestiture sales prices, which appeared to be below market value. See Pl. Mem. at 5–6 (citing In

the Matter of Applications of Trb. Media Co. & Sinclair Broad. Grp., Inc., 33 FCC Rcd. 6830

(2018) (statement by Commissioner O’Rielly)).

Seeking to resolve the agency’s concerns outside the context of the (public) hearing, on

July 31, 2018, Sinclair voluntarily submitted to the FCC’s Enforcement Bureau information and

documents related to the proposed deals and divestitures. See July Santini Decl. ¶ 8; FCC Fact

Stmt. ¶ 7; Pl. Fact Stmt. ¶ 3. Sinclair requested that the information be treated as confidential,

3
because its communication was prepared for settlement negotiations and the supporting

documents included commercially sensitive financial information, including about how Sinclair

valued stations. See July Santini Decl. ¶ 8; FCC Fact Stmt. ¶¶ 8–9. Sinclair supplemented its

communication on May 3, 2019, again requesting that the submitted documents be treated as

confidential to protect commercially sensitive financial information. See July Santini Decl. ¶ 8;

FCC Fact Stmt. ¶¶ 10–11; Pl. Fact Stmt. ¶ 3. Through a letter of inquiry (“LOI”), the FCC in

June 2019 requested additional information and documents about Sinclair’s commercial dealings

and station valuations. See July Santini Decl. ¶ 9; FCC Fact Stmt. ¶¶ 12–13; see also Ex. 1 to Pl.

Mem., ECF No. 25-2 at *3–11 (copy of the LOI). Sinclair responded with additional documents

on July 11 and August 6, 2019, again requesting confidential treatment because the documents

contained commercially sensitive financial information. See July Santini Decl. ¶ 10; FCC Fact

Stmt. ¶¶ 15–16; Pl. Fact Stmt. ¶ 4.

The FCC reviewed Sinclair’s submissions and, satisfied that they described in detail the

company’s proposed transaction agreements, agreed to enter a consent decree. See July Santini

Decl. ¶ 11; FCC Fact Stmt. ¶ 18; Pl. Fact Stmt. ¶ 2. The Consent Decree concluded that Sinclair

had structured its proposed transactions based on a good faith interpretation of the FCC’s rules,

resolved the issues designated for (public) hearing, required Sinclair to develop and implement a

plan ensuring future compliance with FCC rules, and ordered Sinclair to pay a $48 million civil

penalty. See July Santini Decl. ¶ 11; FCC Fact Stmt. ¶¶ 17–19; Pl. Fact Stmt. ¶ 2; Consent

Decree at 5887 ¶ 20, 5892 ¶ 24. Significantly, the Consent Decree described Sinclair’s

submission of documents to the agency but not their precise contents. See Consent Decree at

5883 ¶ 7.

4
 Ms. Wilson wants the documents Sinclair submitted to the FCC. She maintains that,

“[h]ad the FCC followed the commands of the Communications Act [of 1934, 47 U.S.C. §§ 151

et seq.,] and its rules, Sinclair’s conduct would have been probed in an evidentiary hearing and

the documents in question would have been part of the hearing record.” Pl. Mem. at 3. She

insists that the FCC and Sinclair “should not be permitted to hide documents by resort to a

nonpublic, ex parte process, especially when [the documents] are the sole basis for the FCC’s

resolution of substantial and material questions of fact that it had previously said required a

public hearing.” Id. She accordingly filed a request under the Freedom of Information Act

(“FOIA”) on October 28, 2020, seeking:

All documents or filings Sinclair submitted to the FCC or its Bureaus, (as
referenced in the Consent Decree, paragraph 7), on July 31, 2018[;] May 2, 2019[;]
July 12, 2019[;] and August 6, 2019 and any supplements thereto.

Ex. 2 to Pl. Mem., ECF No. 25-2, at *14; see also Pl. Fact Stmt. ¶ 5; FCC Fact Stmt. ¶¶ 20–21;

Citrin Decl. ¶¶ 3–5; July Santini Decl. ¶¶ 12–13. Pursuant to FOIA, upon a reasonably

descriptive request for records submitted in compliance with agency procedures, the agency

“shall make the records promptly available” except in certain circumstances or if an exemption

applies. 5 U.S.C. § 522(a)(3)(A), (b). To fulfill this obligation, the FCC delegated the task of

responding to Ms. Wilson’s request to its Media Bureau. See Citrin Decl. ¶ 3; July Santini Decl.

¶ 12.

The Media Bureau then began the work of identifying responsive records and

determining whether they should be released or withheld under any of FOIA’s exemptions. See

Citrin Decl. ¶ 6. After locating some responsive records, in January 2021, the FCC notified

Sinclair of Ms. Wilson’s FOIA request and asked the company to state its objections, if any, to

disclosure of responsive records. Id. ¶ 8. Sinclair promptly informed the agency that it objected

5
to disclosure of all but seven of the documents and asserted that those seven documents were

exempt from disclosure under FOIA Exemption 4. Id. ¶ 9. Exemption 4 permits the agency to

withhold from public disclosure documents that reflect “trade secrets and commercial or

financial information obtained from a person and privileged or confidential.” 5 U.S.C.

§ 552(b)(4). Ms. Wilson responded to the objection, prompting the Media Bureau to

independently review the materials. See Citrin Decl. ¶¶ 10–11.

Two months later, the FCC had not completed its review and Ms. Wilson had not

received any substantive agency response to her FOIA request. See Compl., ECF No. 1, ¶¶ 8–

13. She accordingly filed this suit under 5 U.S.C. § 552(a)(4)(B) and requested an order

commanding the FCC to “process immediately” her request and make available to her copies of

responsive records. Id. ¶¶ 4, Prayer for Relief. The summons and complaint were served on

May 5, 2021, see ECF No. 9 at *2, and, the same day, the FCC’s Media Bureau released to Ms.

Wilson 261 pages of documents it determined were responsive to her request and not

confidential. See Citrin Decl. ¶ 11. The agency withheld the remainder of the discovered

responsive materials under FOIA Exemption 4. Id. The FCC then filed its Answer to Ms.

Wilson’s Complaint, and Ms. Wilson moved for summary judgment. See ECF Nos. 11, 15.

Seeking to narrow the scope of the dispute, FCC staff then conducted an additional

review of documents responsive to Ms. Wilson’s FOIA request. See Citrin Decl. ¶ 13. This

second review revealed to the agency additional non-confidential documents as well as portions

of documents that could be segregated from the confidential information the agency claimed was

exempt from disclosure under FOIA Exemption 4. Id. The FCC again contacted Sinclair to

obtain the company’s position on the proposed additional disclosures. Id. ¶ 14. To aid in

Sinclair’s review, the agency highlighted portions of the documents that the FCC proposed to

6
continue to withhold. Id. Sinclair responded by maintaining that there were “firm legal

grounds” to withhold “in their entirety” documents responsive to Ms. Wilson’s FOIA request,

but to “cooperate” with the agency, Sinclair limited its objections to the release of four “specific

items” contained in the company’s response to the FCC’s June 2019 LOI. Id. ¶ 17; see also Ex.

5 to Mot. for Prot. Order, ECF No. 21-5 (copy of Sinclair’s letter). According to the FCC,

Sinclair’s continued objections did not reach any of the additional material that the FCC

proposed to release. See Citrin Decl. ¶ 17.

The agency then prepared a supplemental production to Ms. Wilson’s FOIA request. Id.

¶ 18. In preparing the production, FCC staff converted most of the highlighted portions of the

material (marking for Sinclair’s review information that the agency intended to continue to

withhold) into redactions. See id. ¶¶ 18–20. One highlighted paragraph—the last paragraph of

Sinclair’s May 2019 submission to the FCC—was not successfully converted. See id. That

paragraph described how Sinclair determined its proposed divestiture resale price for stations

KDAF and KIAH. See id. ¶ 24; Nov. Santini Decl. ¶¶ 10–12. The FCC also failed to redact a

sentence it had highlighted in Sinclair’s July 2019 response to the LOI that explained how

Sinclair proposed to control WGN-TV after the station was divested to WGN-TV LLC. See

Nov. Santini Decl. ¶ 13. Accordingly, when attorneys transmitted the additional production to

Ms. Wilson’s attorney via email in the late afternoon on Friday, October 22, 2021, the sentence

about WGN-TV in Sinclair’s July 2019 LOI response and the last paragraph of Sinclair’s May

2019 submission remained highlighted instead of redacted, and the information reflected there,

which the FCC maintains is exempt from disclosure under FOIA Exemption 4, was inadvertently

disclosed. See Citrin Decl. ¶¶ 21–24; Nov. Santini Decl. ¶¶ 9–13.

7
 Agency staff learned of the mistake later that evening. Around 7:50 p.m. EDT, Media

Bureau staff forwarded a courtesy copy of the production to Sinclair. See Citrin Decl. ¶ 23. At

8:38 p.m. EDT, Sinclair alerted the FCC that the last paragraph of its May 2019 submission was

highlighted in the production to Ms. Wilson. Id. ¶ 24. At 11:03 p.m. EDT, an attorney in the

FCC’s Office of General Counsel emailed Arthur Belendiuk, counsel for Ms. Wilson, to advise

him of the inadvertent disclosure. Id. ¶¶ 1, 25. Agency counsel asked Mr. Belendiuk to discard

the production without reviewing or sharing it and to confirm that he had done so. Id. ¶ 25. He

was advised he would then be given a replacement production with corrected redactions. Id.

Mr. Belendiuk did not initially respond, and the FCC sent its replacement production the

following Monday, October 25. See id.; Nov. Santini Decl. ¶ 14. The replacement production

included 25 full, unredacted pages of previously withheld materials. See Nov. Santini Decl. ¶ 15.

Also included were 74 pages of partially redacted documents, which the FCC maintains are

protected from further disclosure by FOIA Exemption 4. Id. ¶ 16. The FCC continued to

withhold in full four documents that it insists contain confidential commercial information not

reasonably segregable from nonconfidential information also in the documents. Id. ¶ 17.

Still having received no response from Mr. Belendiuk, the FCC reached out again

regarding the inadvertent disclosures the next day at 11:53 a.m. and 5:32 p.m. EDT. See Mot.

for Prot. Order at 5 (citing exhibits 10 and 11, ECF Nos. 21-10 & 21-11). At 5:42 p.m., Mr.

Belendiuk responded: “After conferring with my client, the decision was made not to delete the

documents sent on Friday.” Id. (quoting exhibit 12, ECF No. 21-12). The parties alerted the

Court to the disclosure and clawback dispute later that week, advising that Ms. Wilson planned

to use the inadvertently disclosed materials unless the FCC moved for a protective order by

November 5, 2021. See Jt. Status Rep., ECF No. 20.

8
 The agency filed its request for protective relief in keeping with that agreement. See

Mot. for Prot. Order. In response, on November 5, 2021, the Court ordered Ms. Wilson not to

disclose, disseminate, or make use of the inadvertently disclosed information “unless and until

this Court orders otherwise.” Order at 1, ECF No. 22. The Court also directed the parties to

submit a briefing schedule addressing both the FCC’s protective order request and Ms. Wilson’s

pending motion for summary judgment. Id. at 2. A briefing schedule was entered on November

16, 2021, after which Ms. Wilson re-filed her request for summary judgment with an updated

motion and memorandum, see ECF No. 25, and the agency responded with a cross-motion for

summary judgment and its own memoranda and exhibits in support. See ECF No. 26. The

motions for a protective order and for summary judgment are now fully briefed and the parties’

disputes are ripe for resolution.

LEGAL STANDARD

I. Motion for Summary Judgment

Federal courts will grant summary judgment in favor of a movant who shows “there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). “When more than one party moves for summary judgment, each

party must carry its own burden of proof.” Pub. Citizen, 953 F. Supp. at 402. In a FOIA case,

that burden can be carried “solely on the basis of agency affidavits if they are clear, specific[,]

and reasonably detailed, and there is no contradictory evidence in the record,” id. (internal

quotation omitted), and so long as there is no evidence “of agency bad faith.” Jud. Watch, Inc. v.

U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013). “However, since summary judgment is

. . . a ‘drastic remedy, courts should grant it with caution so that no person will be deprived of his

or her day in court to prove a disputed material factual issue.’” Pub. Citizen, 953 F. Supp. at 402

(quoting Greenberg v. FDA, 803 F.2d 1213, 1216 (D.C. Cir. 1986)).
9
II. Motion for Protective Order

FOIA does not provide for protective orders or the compelled return or destruction of

inadvertently produced documents. See generally 5 U.S.C. § 552. “Nevertheless, federal courts

have long ‘understood that certain implied powers must necessarily result to our Courts of justice

from the very nature of their institution,’ which ‘are governed not by rule or statute but by the

control necessarily vested in courts to manage their own affairs so as to achieve the orderly and

expeditious disposition of cases.’” Sierra Club v. U.S. Env’t Prot. Agency, 505 F. Supp. 3d 982,

988–89 (N.D. Cal. 2020) (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991)). Courts

have used that implied power to bar dissemination of information inadvertently disclosed in

FOIA proceedings. See, e.g., Pub. Citizen Health Research Grp. v. Food & Drug Admin., 953 F.

Supp. 400, 404 (D.D.C. 1996); Am. Civil Liberties Union v. Dep’t of Def. (“ACLU I”), No. 09-

cv-8071, 2012 WL 13075284, at *5 (S.D.N.Y. Mar. 20, 2012). A federal court’s implied power

remains “limited by the necessity giving rise to its exercise,” however, and its use must be “a

reasonable response to the problems and needs that provoke it.” Degen v. United States, 517

U.S. 820, 823–24, 829 (1996). Whether exercise of that power is appropriate here must be

weighed in light of these principles and the insights of other courts that have wrestled with

similar questions.

DISCUSSION

I. Summary Judgment

Both parties claim they are entitled to summary judgment on the FCC’s withholding

decisions under FOIA Exemption 4. Because Ms. Wilson filed both an original and an amended

motion for summary judgment, her first-filed motion, ECF No. 15, is DENIED as MOOT. Her

amended summary judgment motion, ECF No. 25, is DENIED. The FCC’s cross-motion for

summary judgment, ECF No. 26, is also DENIED, for the reasons that follow.
10
 In Camera Review

Before addressing the legality of the FCC’s withholding decisions, the Court must first

address the adequacy of the agency’s affidavits and determine whether in camera review of the

withheld material is necessary or appropriate. See Pub. Citizen, 953 F. Supp. at 402; Meeropol v.

Meese, 790 F.2d 942, 958 (D.C. Cir. 1986). Ms. Wilson insists that the Court cannot rely on the

FCC’s Vaughn Index or supporting declarations because the FCC “acted in bad faith and has

failed to discharge its obligations under FOIA.” Pl. Mem. at 14. She notes that the FCC initially

withheld three “pro forma confidentiality requests” received from Sinclair and a “parental

disclosure letter” Sinclair attached to its July 2019 response to the FCC’s LOI. See id. at 12–13.

At the time those documents were withheld, the FCC claimed that the parental disclosure letter

was not segregable from confidential financial information in Sinclair’s LOI response. See id. at

13 (citing the July Santini Decl. and the FCC’s first Vaughn Index, ECF No. 14-2, at 3). The

agency later revised that position—a matter addressed in more detail below. The three

confidentiality requests were simply “overlooked.” Nilsson Decl. ¶¶ 8–9.

The agency later produced all four documents in their entirety. See id. at 14–15; see also

Nov. Santini Decl. ¶ 15. According to Ms. Wilson, that later production demonstrates that the

FCC improperly withheld the documents in the first instance, misrepresented itself in its initial

Vaughn Index and supporting affidavit, and therefore acted in bad faith. See Pl. Mem. at 11–15.

At the very least, she suggests that the FCC’s affidavits are untrustworthy because agency

representatives proclaimed under penalty of perjury that agency officials had reviewed

responsive materials “document-by-document and line-by-line,” and yet overlooked these

documents that should clearly have been disclosed. Id. at 12 (citing July Santini Decl. ¶ 26).

The implication, in other words, is that the agency’s initial withholding justifications were

11
wrong, “from which it follows that the agency is fallible and its affidavits suspect.” Mil Audit

Project v. Casey, 656 F.2d 724, 754 (D.C. Cir. 1981); see also Pl. Mem. at 11–15.

The FCC responds with caselaw suggesting that, standing alone, an agency’s voluntary

reevaluation and revision of FOIA withholdings is no reason to infer that the agency acted in bad

faith or that its affidavits are suspect. See FCC Mem. at 26–27 (citing Mil. Audit Project, 656

F.2d at 754; Am. Civil Liberties Union v. Dep’t of Def. (“ACLU II”), 628 F.3d 612, 627 (D.C.

Cir. 2011); Skybridge Spectrum Found. v. FCC, 842 F. Supp. 2d 65, 77 n.3 (D.D.C. 2012)).

Updated affidavits from the agency explain that FCC legal advisors reviewed the memorandum

Ms. Wilson submitted in support of her initial motion for summary judgment, at which point

agency staff “realized” that Sinclair’s confidentiality requests were responsive to Ms. Wilson’s

FOIA request and had been omitted from the initial production. Nilsson Decl. ¶¶ 10–14. The

agency also sought to “narrow the scope of the parties’ dispute” and so reassessed whether it was

possible to segregate and release additional material Sinclair submitted to the FCC. Id. ¶ 13.

The agency decided that the parental disclosure attached to Sinclair’s July 2019 LOI response

was so segregable, then produced the additional files and prepared updated affidavits explaining

what had been produced and withheld, when, and why. See generally id. Ms. Wilson responds

that, “[w]hether inadvertent or intentional,” the agency’s actions should raise legitimate doubts

that the Court can rely on the FCC’s representations. See Pl. Reply at 21.

“A judge hearing a claim under FOIA is not obligated to conduct an in camera review of

the documents withheld; the decision to do so is discretionary.” Meeropol, 790 F.2d at 958

(citing NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 224 (1978)). Courts use that

discretion to satisfy any “uneasiness” or to resolve doubts about the character of withheld

material before “tak[ing] responsibility for a de novo determination” that an agency’s

12
withholding decisions were proper. Id. (internal quotations omitted). The “inadequacy” of

previous withholding justifications has supported other courts’ decisions to conduct in camera

reviews. See id. Yet the D.C. Circuit has “emphatically” rejected any uniform rule that a

corrected disclosure is cause for alarm. Mil. Audit Project, 656 F.2d at 754. Courts in the D.C.

Circuit must instead weigh “the particular circumstances” of each case to determine whether in

camera review is necessary. Skybridge, 842 F. Supp. 2d at 77 n.3.

In Skybridge, a case similar to this one, the court found agency affidavits were sufficient

and that no further review of withheld materials was necessary after the agency made additional

disclosures of segregable information discovered in the process of preparing a motion for

summary judgment. See id. at 74, 77. The circumstances present here do not warrant a different

result. This Court is satisfied that the agency’s updated Vaughn Index and affidavits are

sufficiently detailed, reliable, and untainted by evidence of government bad faith, and will not

order in camera review.

FOIA Exemption Four

Based on the parties’ affidavits and the agency’s Vaughn Index, the Court must next

examine “de novo” whether the FCC properly withheld materials under FOIA Exemption 4.

5 U.S.C. § 552(a)(4)(B). Exemption 4 permits a government agency to protect from disclosure

“trade secrets and commercial or financial information obtained from a person and privileged or

confidential.” 5 U.S.C. § 552(b)(4). The burden is on the FCC to prove that the claimed

exemption applies. See ACLU II, 628 F.3d at 619. Exemptions are “narrowly construed,” FBI v.

Abramson, 456 U.S. 615, 630 (1982), but within that narrow construction, the agency’s

“justification for invoking a FOIA exemption is sufficient if it appears logical or plausible.” Id.

(quoting Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)). The agency must also

demonstrate that it “reasonably foresees that disclosure” of the withheld information “would
13
harm an interest protected by an exemption.” 5 U.S.C. § 552(a)(8)(A)(i). These rules permitting

withholding should “not obscure the basic policy that disclosure, not secrecy, is the dominant

objective” of FOIA. Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976).

Several of the Exemption 4 considerations are not presently in dispute. The FCC has not

suggested that the materials withheld from Ms. Wilson are “trade secrets” or “privileged.” See

generally 2d Vaughn Index; Nov. Santini Decl. ¶ 18. The agency describes the withheld

documents as confidential “commercial or financial information” concerning the market value

and proposed sale prices for various broadcast stations, negotiations and possible structures for

divestiture deals, and discussions surrounding the planned Sinclair-Tribune transaction. See id.

This kind of information fits snugly within the “ordinary meanings” of the terms “commercial”

and “financial,” Pub. Citizen Health Research Grp. v. FDA, 704 F.2d 1280, 1290 (D.C. Cir.

1983) (adopting that construction for FOIA Exemption 4), and Ms. Wilson does not seriously

contend otherwise. 2 See Pl. Mem.; Pl. Reply. Additionally, Ms. Wilson specifically requested

“documents or filings Sinclair submitted to the FCC or its Bureaus.” Pl. Fact Stmt. ¶ 5; FCC

Fact Stmt. ¶¶ 20–21. Any responsive documents must therefore have been “obtained from a

person.” 5 U.S.C. § 552(b)(4); see also Elec. Priv. Info. Ctr. v. U.S. Dep’t of Homeland Sec.,

117 F. Supp. 3d 46, 63 (D.D.C. 2015) (confirming that corporations are “persons” within the

2
Two exceptions are Sinclair’s July 31, 2018 letter “submitted . . . for consideration of a
settlement agreement” and Sinclair’s “Summary of Response to Issues Raised in the Hearing
Designation Order,” a document drafted by Sinclair and sent to the agency as part of the
company’s May 3, 2019 communication. See Vaughn Index at 1; Pl. Mem. at 29, 31. Ms.
Wilson suggests these documents were improperly withheld because settlement negotiations are
not protected by FOIA Exemption 4—the only exemption claimed by the FCC. See Pl. Mem. at
29, 31. The FCC did not withhold these documents in their entirety, however; both were
released with redactions which the agency says shield from disclosure only confidential
commercial information. See Nov. Santini Decl. ¶ 19. Ms. Wilson does not raise a separate
argument regarding segregablility, so the redacted information is addressed more generally
alongside the agency’s other withholdings.
14
meaning of FOIA Exemption 4). The only remaining issues, then, are whether the withheld

information is “confidential” within the meaning of 5 U.S.C. § 552(b)(4) and whether the FCC

“reasonably foresees that disclosure” of the information “would harm an interest protected by an

exemption.” 5 U.S.C. § 552(a)(8)(A)(i).

1. The Withheld Information Is Confidential.

Commercial or financial information is “confidential” within the meaning of FOIA

Exemption 4 “at least” where the information “is both [(i)] customarily and actually treated as

private by its owner and [(ii)] provided to the government under an assurance of privacy.” Food

Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2366 (2019). The first condition—that the

information be “customarily kept private, or at least closely held, by the person imparting it”—is

mandatory. Id. at 2363. The second condition—the government’s assurance of privacy—is

relevant but not strictly required. See id. (declining to decide whether the second condition is

mandatory); Stotter v. U.S. Agency for Int’l Dev., No. 14-cv-2156, 2020 WL 5878033, at *5

(D.D.C. Oct. 3, 2020) (describing as “clear beyond cavil” that an agency’s privacy assurances

are “relevant”); Shapiro v. Dep’t of Just., No. 12-cv-313, 2020 WL 3615511, at *26 (D.D.C. July

2, 2020), reconsideration denied, 2020 WL 5970640 (D.D.C. Oct. 8, 2020) (same). But cf.

Renewable Fuels Ass’n v. Env’t Prot. Agency, 519 F. Supp. 3d 1, 12 (D.D.C. 2021) (suggesting

D.C. Circuit precedent may affirmatively prohibit application of the second condition, citing

Critical Mass Energy Project v. Nuclear Regul. Comm’n, 975 F.2d 871, 879 (D.C. Cir. 1992)).

i. The Information Is Customarily and Actually Treated as Private.

The first confidentiality condition is satisfied in this case. The FCC says Sinclair

provided all the information the agency has withheld from Ms. Wilson under cover of

confidentiality requests and that the company does not typically make any of the information

public. See 2d Vaughn Index; July Santini Decl. ¶¶ 22, 24; Nov. Santini Decl. ¶ 7; FCC Mem. at

15
15–16 (collecting additional citations). That assessment is based on representations Sinclair

made to the FCC about its policies and practices in its requests for confidentiality, as well as

Sinclair’s responses to emails from the FCC regarding the company’s objections, if any, to the

disclosure of documents responsive to Ms. Wilson’s FOIA request. See July Santini Decl. ¶¶ 22,

24; Nov. Santini Decl. ¶¶ 5–7; see also Exs. 4, 5 to Mot. for Prot. Order, ECF Nos. 21-4, 21-5

(copies of Sinclair’s disclosure objection letters); Shapiro Decl. ¶¶ 3–9.

Ms. Wilson disagrees that the information she seeks is customarily or actually treated as

private. She advances three theories. Her first is that, had the public hearing about the Sinclair-

Tribune deal and related issues gone forward, “most if not all of [the] documents [she] seeks

would have been made part of the hearing record.” Pl. Mem. at 23. But there is no way to know.

This Court cannot assume into existence facts about the documents Sinclair would have prepared

or produced in the context of a hearing that ultimately did not take place. FCC administrative

law judges can moreover issue protective orders shielding confidential commercial or financial

information from public disclosure. See FCC Mem. at 22 (citing 47 C.F.R. § 1.314). Even if

Sinclair had produced some of the information Ms. Wilson seeks in a public hearing, then, that

information still may have been withheld from the public under the FCC’s rules. Ms. Wilson’s

first theory thus falls short.

Ms. Wilson’s remaining theories relate to the kinds of information broadcast companies

must routinely disclose to the FCC and public to comply with agency regulations. She draws

attention to Sinclair’s answers to LOI questions about the company’s loan guarantees and other

financial agreements with WGN-TV LLC and Cunningham Broadcast. See Pl. Mem. at 26.

These documents, she says, must be included with a broadcast company’s biennial ownership

16
report, which itself must be maintained for public inspection consistent with agency rules. See

id. at 27 (citing 47 C.F.R. §§ 73.3615, 73.3613, 73.3526(e)(5)).

The cited regulations do not support Ms. Wilson’s point. Section 73.3526(e)(5) requires

a commercial broadcast television station licensee to maintain and make available for public

inspection a copy of its most recent ownership report and ownership-related contracts, but the

rule expressly permits licensees to redact “confidential or proprietary information.” 47 C.F.R.

§ 73.3526(e)(5); see also Kreisman Decl. ¶ 12 (describing redaction rules before January 2019).

Whether the withheld information is “confidential” is at the heart of this dispute, so a rule

permitting the company to withhold from the public “confidential” information settles nothing.

Ms. Wilson also points to an agency regulation that requires licensees to submit biennial

ownership reports to the FCC consistent with the “requirements set forth in . . . FCC Form 323.”

47 C.F.R. § 73.3615(a). The instructions to FCC Form 323 warn filers not to attach to the form

copies of contracts or instruments. See Ex. 2 to FCC Mem., ECF No. 26-5, at 5, 10. Those

documents must be provided to the FCC “within seven days of a request by the FCC,” see id. at

10, but nothing in the Form 323 instructions or FCC regulations suggests that the agency will

routinely make documents it receives through this provision available for public inspection. See

id.; 47 C.F.R. § 73.3613; see also FCC Mem. at 21. There is accordingly no reason to believe

that Sinclair’s biennial ownership reports customarily or actually include draft or not-yet-

executed commercial arrangements with third parties, as Ms. Wilson suggests.

Ms. Wilson’s third theory relates to Sinclair’s obligations under 47 C.F.R. § 73.3540.

See Pl. Mem. at 23–27; Pl. Reply at 4–8. That agency rule requires companies to apply to the

FCC for approval of proposed station transfers (among other things), and mandates that

companies make numerous representations in their applications, usually on FCC Forms 314 or

17
315. See 47 C.F.R. § 73.3540(d); see also Kreisman Decl. ¶ 6. Regulations also require

companies to maintain a “copy of any application tendered for filing with the FCC, together with

all related material,” in a file available for public inspection. 47 C.F.R. § 73.3526(e)(2). Ms.

Wilson theorizes that, consistent with these rules, Sinclair would have been required to disclose

and maintain for public inspection both the company’s commercial agreements with

Cunningham Broadcast and WGN-TV LLC, see Pl. Mem. at 26, and information about Sinclair’s

“control [of] the programming, personnel, and finances of station WGN-TV” had that station

been divested to WGN-TV LLC. Id. at 24 (quoting the FCC’s LOI, ECF No. 25-2 at *5). She

concludes that Sinclair would not, therefore, customarily keep the information private, and the

information is accordingly not confidential within the meaning of FOIA Exemption 4. See id.

Whether the FCC’s rules and form applications for station transfers would have required

Sinclair to disclose the contested information is an open question that cannot be resolved on

summary judgment. 3 Ultimately, the issue is not material. Confidentiality under FOIA

3
The FCC says that its forms do not require transferor applicants to disclose detailed
information about post-transfer station control or commercial agreements with transferees. See
FCC Mem. at 19–21; Kreisman Decl. ¶¶ 6–10. Ms. Kriesman’s affidavit might ordinarily settle
the matter. See Jud. Watch, Inc. v. U.S. Dep’t of Justice, 185 F. Supp. 2d 54, 63 (D.D.C. 2002).
But there is contrary evidence in the record suggesting that FCC Form 315, used when a
company seeks agency approval for a voluntary transfer, may sometimes require more. The
Instructions for Form 315 require transfer parties to make numerous representations to the
agency, including about the parties’ interests, future ownership rights, and “non-party” influence
over licensee operations. See Ex. 1 to FCC Mem., ECF No. 26-4, at *14–20 ¶ E, *32–48; see
also Pl. Reply at 4–8 (providing additional citations). Depending on the representations made,
the parties may be required to submit exhibits further explaining their answers or the parties’
compliance with agency regulations. See, e.g., id. at *41 (requiring, depending on
representations made, copies of certain transferor-transferee financial agreements to demonstrate
compliance with agency rules); id. at *47 (requiring, depending on representations made,
submission of “an exhibit detailing the rights of any non-party investor and setting forth fully the
applicant’s reasons for not treating the investor as a party to the application”); id. at *63
(requiring certification regarding “equity and financial interests” not otherwise disclosed and
providing space for an exhibit). In some circumstances, then, Form 315 would seem to require
disclosure of fairly detailed information about transferor and transferee interests, financial
18
Exemption 4 is a matter of how the owner of withheld information customarily treats the

information, “not how the industry as a whole treats the information.” Ctr. for Auto Safety v.

Nat’l Highway Traffic Safety Admin., 244 F.3d 144, 148 (D.C. Cir. 2001). Even if Ms. Wilson is

correct that every other broadcast company would have submitted detailed information about the

future control of planned divestiture stations, either generally or under the circumstances

surrounding the proposed Sinclair-Tribune deal, or whether copies of Sinclair’s financial

agreements with its commercial partners were or should have been required by the rules, at the

end of the day, Sinclair did not publicly disclose any of that information. See Pl. Mem. at 24–25;

July Santini Decl. ¶¶ 6–10; Shapiro Decl. ¶¶ 3–4. Sinclair only shared the information with the

FCC under cover of confidentiality requests. See July Santini Decl. ¶¶ 8–10; Shapiro Decl. ¶¶ 3–

4. There is thus no reason to think that Sinclair “customarily” or “actually treated” this or any

other information withheld from Ms. Wilson by the FCC as anything other than private. The

information is therefore “confidential” within the meaning of FOIA Exemption 4.

ii. The Government Did Nothing To Suggest that Sinclair’s Private
Information Would Not Be Treated As Confidential.

arrangements, and control over transferred stations—information beyond the yes/no
certifications and identities of parties to the transaction described by Ms. Kriesman. Compare id.
with Kriesman Decl. ¶¶ 6–10. This is no small matter. The amount of information required by
the FCC’s rules is central to Ms. Wilson’s larger theory of this case. She contends that Sinclair
declined to disclose to the FCC sufficient information about its proposed deal with Tribune and
the related station divestitures, prompting the FCC to set for public hearing both the question of
Sinclair’s continued interest in and control over the divestiture stations and the underlying issue
of Sinclair’s candor to the FCC. See Pl. Mem. at 2–4, 24–26; Pl. Reply 4–8. The agency later
decided not to pursue those questions in the context of a public hearing. See Pl. Fact Stmt. ¶ 2;
FCC Fact Stmt. ¶¶ 17–19. Ms. Wilson casts this as a sort of “regulatory capture” that the Court
should not condone. See Pl. Mem. at 12. That is not, however, the issue before the Court. The
present question is whether the FCC properly withheld information that Sinclair did not make
public, and which the agency did not require Sinclair to make public, from public inspection
under FOIA Exemption 4.
19
 The second confidentiality factor—the government’s assurance of privacy—is not

required but is “relevant to determining whether [commercial or] financial information that is

shared with the government is ‘confidential’ pursuant to the FOIA’s Exemption 4.” Stotter, 2020

WL 5878033, at *5. Courts in this Circuit have declined to “read the word ‘confidential’ to

impose a blanket requirement that the government provide an assurance of privacy in every case

in which it asserts Exemption 4,” in part because doing so would prompt “many fairly arbitrary

disputes over whether such an assurance can be implied.” Renewable Fuels, 519 F. Supp. 3d at

12. If anything, courts here have taken the position that “privately held information is generally

confidential absent an express statement by the agency that it would not keep information

private, or a clear implication to that effect (for example, a history of releasing the information at

issue).” Id. at 12–13 (emphasis and parenthetical original); see also, e.g., Human Soc’y of U.S. v.

Dep’t of Agric., 549 F. Supp. 3d 76, 91 (D.D.C. 2021) (applying this approach). 4

Under FCC rules, when an outside entity submits materials to the agency together with a

confidentiality request, see 47 C.F.R. § 0.459, “the materials will not be made routinely available

for inspection” by the public “[i]f it is shown in the request that the materials contain . . .

confidential commercial, financial or technical data.” Id. § 0.457(d)(2). A member of the public

who wishes to inspect such materials must make “a persuasive showing as to the reasons for

inspection,” which the agency evaluates under its FOIA regulations. Id. Sinclair requested

4
Ms. Wilson argues that “[o]ther courts have held that Exemption 4 requires [a
governmental] assurance [of privacy],” citing several cases. See Pl. Reply at 10 & n.16
(emphasis added). Some of those cases are addressed in the body of this opinion. Others
supporting the proposition rely on non-D.C. Circuit precedent. See, e.g., Pub. Just. Found. v.
Farm Serv. Agency, 538 F. Supp. 3d 934, 942 (N.D. Cal. 2021) (deciding confidentiality issue
not on the basis of Argus Leader but on the 9th Circuit’s “Benson standard,” from Gen. Servs.
Admin. v. Benson, 415 F.2d 878, 881 (9th Cir. 1969)). The cited cases are not binding, and as
they apply law not applicable here, they are also not persuasive to this Court.
20
confidential treatment under these provisions for each of its four submissions to the FCC at issue

in this case. See July Santini Decl. ¶¶ 8, 10; Nilsson Decl. ¶ 4. As Ms. Wilson points out, see Pl.

Reply at 11, there was no guarantee the agency would grant the requests. See In re Sofio, 32

FCC Rcd 1781 (2017) (affirming partial denial of a confidentiality request under 42 C.F.R. §

0.459). But the agency’s regulations are enough to show that the FCC advertised that

confidentiality was available to Sinclair if Sinclair followed appropriate procedures, and Sinclair

followed the procedures. See July Santini Decl. ¶¶ 8, 10.

The FCC then did nothing to indicate it would not honor Sinclair’s confidentiality

requests. Rather, the agency signaled the opposite. Before Ms. Wilson filed her FOIA request,

the agency responded to Sinclair’s first two voluntary submissions—for which Sinclair requested

confidential treatment—with the June 2019 LOI. See July Santini Decl. ¶ 9. The LOI directed

Sinclair to respond to questions and asked Sinclair to state whether it would seek confidential

treatment for those responses under 47 C.F.R. § 0.459. See id. Sinclair submitted its responses

along with a request for confidential treatment. See id. ¶ 10. Then, after Ms. Wilson filed her

FOIA request, the agency followed its internal procedure for alerting Sinclair that a member of

the public had requested to inspect its materials under 47 C.F.R. § 0.461(d)(3)—a procedure that

applies only when a member of the public requests materials “not open to routine public

inspection.” Id.; see also July Santini Decl. ¶ 15. These actions show that the FCC affirmatively

alerted Sinclair to the agency’s confidentiality provisions and, once invoked, treated Sinclair’s

materials as if they were covered by the confidentiality provisions.

Ms. Wilson correctly points out that the FCC can make confidential materials publicly

available “if it [is] in the public interest to do so.” Pl. Reply at 11–12; see also In re Am.

Broadband & Telecomms. Co. Jeffrey S. Ansted, 35 FCC Rcd 3762, 3764 (2020). She further

21
asserts that the public interest favors the FCC’s release of the information at issue here. See Pl.

Reply at 9–10. Whether that is true is beyond the competence of this Court. The FCC decided

not to release the information Ms. Wilson seeks, and this Court’s role is limited to determining

whether the agency’s decision to withhold the information is consistent with FOIA Exemption 4.

The agency’s decision to release other information in a past case based on its assessment of the

public and private interests at stake there does not create a “clear implication” that the agency

would release information in this and all future cases involving roughly similar public interests.

See Renewable Fuels, 519 F. Supp. 3d at 13. Accordingly, because the FCC did not indicate to

Sinclair that it would disregard the company’s confidentiality requests, and because there is no

evidence that the agency has consistently released similar information in the past, the second

Argus Leader consideration—mandatory or merely relevant—is satisfied. The information Ms.

Wilson seeks is therefore “confidential” within the meaning of Exemption 4.

2. Neither Party Has Met Its Burden as to Reasonably Foreseeable Harm.

Satisfying the statutory criteria for Exemption 4 “does not end the matter.” Reps. Comm.

for Freedom of the Press v. F.B.I., 3 F.4th 350, 369 (D.C. Cir. 2021). “Under the FOIA

Improvement Act of 2016, the government may not withhold even [exempt] materials unless it

also ‘reasonably foresees that disclosure would harm an interest protected by’ the FOIA

exemption.” Id. (quoting 5 U.S.C. § 552(a)(8)(A)(i)(I)). The harms protected by Exemption 4

include “genuine harm to [a company’s] economic or business interests” and the related harm

that affected companies will be dissuaded “from submitting similar information to the

government” in the future. Ctr. for Investigative Reporting v. Customs & Border Prot., 436 F.

Supp. 3d 90, 106 (D.D.C. 2019) (internal citations, quotation, and modification omitted); accord

Leopold v. Dep’t of Just., No. 19-cv-3192, 2021 WL 124489, at *7 (D.D.C. Jan. 13, 2021). The

agency cannot articulate those harms in a “nebulous,” “speculative or abstract,” “generalized,”
22
“boilerplate,” or “conclusory” way. Investigative Reporting, 436 F. Supp. 3d at 106; Reps.

Comm., 3 F.4th at 369–70. “[W]hat is needed is a focused and concrete demonstration” that

links particular material withheld with particular harms foreseen. Reps. Comm., 3 F.4th at 370.

This can be accomplished “on a category-by-category basis rather than a document-by-document

basis” if the agency groups together like records and explains “the harm that would result from

release of each group,” so long as the “basis and likelihood of that harm [is] independently

demonstrated for each” group or category. Id. at 369 (citing Rosenberg v. Dep’t of Def., 342 F.

Supp. 3d 62, 78 (D.D.C. 2018)).

Two affidavits describe categories of information withheld by the FCC and harms

foreseen by the FCC. The first is from Sinclair executive Scott Shapiro. See Shapiro Decl. ¶¶ 3,

10–12. 5 Mr. Shapiro describes five categories of information that could cause harm if disclosed:

(a1) broadcast cash flow data for KIAH, KDAF, and WGN-TV, see id. ¶ 3a; (a2) Sinclair’s

economic incentives to divest WGN-TV, see id. ¶¶ 3b, 11; (a3) the identities of “Sinclair

personnel involved in determining divestiture sales prices,” id. ¶¶ 3c, 11; (a4) guarantee

agreements, see id. ¶ 3d; and (a5) information Sinclair “received from Tribune pursuant to

agreements intended to preserve confidentiality,” id. ¶ 10. The agency’s briefs cite almost

exclusively to this affidavit when discussing reasonably foreseeable harm. See FCC Mem. at

24–26; FCC Reply at 5–7.

5
FOIA requires “the agency” to reasonably foresee harm to an interest protected by an
exemption. 5 U.S.C. § 552(a)(8)(A)(i)(I) (emphasis added). Evidence that a Sinclair executive
foresaw harm from disclosure would not, therefore, be enough. The FCC has cured the problem
here by adopting Mr. Shapiro’s harm assessments as its own. The declaration of Ms. Kriesman,
chief of Video Division in the FCC’s Media Bureau, describes how Ms. Kriesman “reviewed”
Mr. Shapiro’s declaration and, based on her personal knowledge, found credible his “assertions
concerning the harm[s] that could foreseeably arise.” See id. ¶¶ 1, 15–16.

23
 A second, alternative list of categories of withheld documents is found in the declaration

of senior agency counsel Christopher Santini. See Nov. Santini Decl. ¶¶ 1, 18. Although the

agency does not reference Mr. Santini’s declaration in the section of its brief addressing

foreseeable harm, Mr. Santini’s declaration articulates both categories of information withheld

and harms foreseen by the agency. See id. ¶ 18. In Mr. Santini’s estimation, the categories of

withheld information are: (b1) information reflecting negotiations and internal deliberations

about Sinclair’s planned commercial transactions; (b2) station valuations and supporting

documents; (b3) independent appraisals; (b4) broadcast cash flow information; (b5) guarantee

agreements; (b6) “proprietary comparable transaction reports”; (b7) information about the

private business interests of a Sinclair executive; and (b8) information about Sinclair’s

“involvement, or lack thereof,” in the creation of WGN-TV LLC. Id.

There is significant overlap between the two lists. Both describe materials touching on

Sinclair’s internal assessment of the proposed divestiture deals (categories a2, b1). Both

describe materials reflecting broadcast cash flow data and other information used by Sinclair to

value stations (categories a1, b2, b4, b6). Both list guarantee agreements in both draft and final

form (categories a4, b5). And both list documents prepared for Sinclair’s private use by third

parties (categories a1, a5, b3).

There are some distinct categories, as well. Mr. Shapiro lists materials that reveal the

identity of “specific persons” at Sinclair “primarily responsible” for determining divestiture

purchase prices (category a3). Information about Sinclair executives’ private business interests

(category b7) must be considered separately, too, as must materials reflecting Sinclair’s

“involvement, or lack thereof,” in the creation of WGN-TV LLC (category b8). Comparing the

listed categories with the agency’s Vaughn Index satisfies the Court that all of the individual

24
documents or portions of documents withheld from Ms. Wilson are included in one of these

groups.

To meet its burden under the FOIA Improvement Act, the agency must next link each

category of withheld information to “the harm that would result from release of” that

information. Reps. Comm., 3 F.4th at 369. One harm identified by the agency is a reduction in

candid communications from companies—that disclosure of the information withheld from Ms.

Wilson “would foreseeably discourage broadcast television companies in future Commission

proceedings from sharing useful but sensitive commercial information with the agency.”

Kriesman Decl. ¶ 16; see also FCC Mem. at 26; FCC Reply at 6. Mr. Shapiro calls this a

“chilling effect” triggered by reduced trust in the agency’s ability to “prevent public disclosure of

. . . confidential information.” Shapiro Decl. ¶ 12; see also Kriesman Decl. ¶ 16 (agency

endorsing Mr. Shapiro’s concern). Ms. Wilson objects that this harm is “contradicted by FCC

rules and practice,” which in certain circumstances affirmatively require disclosure of sensitive

information if a company wishes to obtain (legally mandatory) agency approval for commercial

transactions in the highly regulated commercial broadcast media market. See Pl. Mem. at 3, 27,

37.

Neither party has met its summary judgment burden on this point. The undisputed facts

do not as a matter of law demonstrate that the agency’s fear of reduced company candidness is

reasonable, because if broadcast media companies are required to disclose sensitive commercial

information or risk agency rejection of their transfer applications, see supra note 3, those

companies are unlikely to withhold information solely because the information might become

public through FOIA proceedings. The incentives simply do not align. See Pl. Mem. at 24–25;

Nat’l Parks & Conservation Ass’n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974), abrogated on

25
other grounds by Argus Leader, 139 S. Ct. at 2356 (“Nat’l Parks I”) (observing that, where

companies were “required to provide . . . financial information to the government [in order to

operate their businesses], there [was] presumably no danger that public disclosure [would]

impair the ability of the Government to obtain this information in the future”). On the other

hand, the undisputed facts also do not make clear that companies must disclose sensitive

commercial information every time they seek agency approval for their dealings in the broadcast

market. See supra note 3. If disclosure of that sort of information is rare, an order by this Court

compelling disclosure here may indeed make companies more circumspect when communicating

with the FCC. There is simply too much ambiguity in the record to justify summary judgment to

either party on this point.

Reduced company candor is not the only harm the agency foresees. The FCC is also

concerned that Sinclair and other media companies could suffer competitive or commercial harm

if Sinclair’s confidential information is disclosed. See Nov. Santini Decl. ¶ 18; FCC Mem. at 25;

FCC Reply at 6. This concern about harm appears more speculative, however. The agency

couches its competitive harm concerns in the language of “could” rather than “would” or “will.”

See Shapiro Decl. ¶¶ 10–11; Nov. Santini Decl. ¶ 18. 6 “[T]he foreseeability requirement means

that agencies must concretely explain how disclosure ‘would’—not ‘could’—[cause harm].”

Reps. Comm., 3 F.4th at 369–70. That formal rule is binding on this Court and prevents an

award of summary judgment to the FCC at this stage of proceedings.

Summary judgment is also inappropriate because the FCC has failed to meaningfully pair

the provisional competitive harms it foresees with the categories of information withheld.

6
The only harm the agency foresees “would” occur from disclosure of Sinclair’s
confidential information is the harm to company candidness with the FCC. See Kriesman Decl.
¶ 16.
26
“Congress added the distinct foreseeable harm requirement to foreclose the withholding of

material unless the agency can articulate both the nature of the harm from release and the link

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

369 (internal quotation and modification omitted) (emphasis added); see also Investigative

Reporting, 436 F. Supp. 3d at 106 (observing that agencies must “connect the harms in a

meaningful way to the information withheld”) (internal quotation and modification omitted).

Some of the connections might be reasonably clear once the agency clarifies how it

anticipates competitive harm to Sinclair and other broadcast media companies. The agency

connects the disclosure of “strategic business decisions, including [Sinclair’s] economic

incentives for divesting particular stations or its internal processes for valuating the sale or

acquisition of assets” to the harm that “future sale partners” could have an “advantage in future

negotiations.” Shaprio Decl. ¶ 11. That statement, adopted by the FCC through Ms. Kriesman’s

affidavit, see Kriesman Decl. ¶ 15, seems to link the agency’s concern about competitive harm to

the disclosure of materials reflecting Sinclair’s internal deliberations about the Tribune deal and

divestitures, the broadcast cash flow data and similar information compiled by Sinclair as it

valued stations, similar data prepared by third parties for Sinclair’s private use, and the guarantee

agreements the company negotiated to support and structure the deals (categories a1, a2, a4, a5,

b1, b2, b3, b4, b5, and b6). But the connection is not explicit. If the agency wishes to prevail on

a future motion for summary judgment, it should draw a clear line between the disclosure of

individual documents or categories of information withheld and the specific, nonspeculative

harms the agency foresees.

Other connections are explicit but vague, and consequently will require additional

explanation. The agency links disclosure of confidential information about the “private business

27
holdings of a Sinclair executive” (category b7) with provisional harms to “the interests of that

person and his third-party companies by revealing information about the companies’ ownership

structure.” Nov. Santini Decl. ¶ 18. Based on the agency’s Vaughn Index, this category of

information must include “[i]nformation concerning the private business interests of [] Sinclair

executive[] David Smith.” See Vaughn Index at 5. Sinclair provided that information to the

FCC in response to an FCC LOI requesting an explanation of Mr. Smith’s business relationship,

if any, with Atlantic Automotive Corporation. See id.; Ex. 1 to Pl. Mem., ECF No. 25-2 at *5.

The agency has not explained how competitive harms anticipated within the broadcast media

market would apply to Atlantic Automotive Corporation—a company that, from its name, may

be involved in an entirely distinct line of business. Similarly, the agency withheld from Ms.

Wilson information that reveals the identities of Sinclair employees or executives responsible for

determining divestiture purchase prices (category a3); that information may be linked to

competitive harm in the broadcast industry, but is not explained in sufficient detail to satisfy the

Court that the harm is reasonably foreseeable as a matter of law.

The agency has also failed to articulate any anticipated harm at all for the last category of

information—information describing Sinclair’s “involvement, or lack thereof, in the creation of

WGN-TV, LLC” (category b8). See Nov. Santini Decl. ¶ 18. The agency may attempt again to

establish foreseeable harm by supplementing the record, but summary judgment is not

appropriate at this stage of proceedings.

Summary judgment must also be denied to Ms. Wilson. Although the agency has so far

failed to carry its burden with respect to its Exemption 4 withholdings, the undisputed material

facts do not establish that the agency will be unable to do so as a matter of law. Ms. Wilson

suggests, for example, that no harm could possibly flow from the agency’s release of the

28
broadcast cash flow numbers and multipliers she seeks. See Pl. Mem. at 19. She says these

figures are “not real . . . , but rather fabrications provided to the FCC to support Sinclair’s bogus

claim that it acted in good faith.” Id. Whether “real” or not—presumably figures are “real” in

this sense if they accurately reflect market value or are based on generally accepted accounting

principles, see id. at 17—the agency has provided a sworn declaration from an individual

familiar with the media industry who asserts that broadcast cash flow numbers and multipliers

are useful tools for assessing station value within the broadcast media market. See Kriesman

Decl. ¶ 14. If released, the agency says these figures might be used to leverage negotiations

surrounding KDAF, KIAH, and WGN-TV. See Nov. Santini Decl. ¶ 18. It is not inherently

unreasonable to think that a station valuation—even an artificially deflated one, if Ms. Wilson is

correct about Sinclair’s maneuverings—might be wielded in future industry dealings affecting

those stations. Both parties may supplement the record on this point, but neither has satisfied its

burden on the undisputed facts currently before the Court.

II. Protective Order

The FCC also moved for a protective order shielding from further disclosure information

inadvertently revealed to Ms. Wilson in the agency’s production of October 22, 2021. See Mot.

for Prot. Order. The inadvertently disclosed material consists of the final paragraph of Sinclair’s

May 2019 submission to the FCC and a single sentence on the third page of Sinclair’s July 2019

response to the FCC’s LOI. See Nov. Santini Decl. ¶¶ 10, 12–13. The agency requested

protective relief only as to the mistakenly disclosed paragraph in the May 2019 communication,

referred to hereafter as the “Inadvertent Disclosure.” See FCC Mem. at 28 n.4; see also Mot. for

Prot. Order at 1–2, 6 & n.1. The agency has thus waived any objection to Ms. Wilson’s use of

the other mistakenly disclosed material in Sinclair’s July 2019 LOI response. To the extent that

29
the parties have interpreted the Court’s Order of November 5, 2021 as reaching that sentence,

Ms. Wilson is no longer required to refrain from disclosing, disseminating, or making use of that

information.

The Court will partially grant the agency’s motion for protective order and order Ms.

Wilson to refrain from disclosing, disseminating, or making use of the Inadvertent Disclosure

until the Court resolves the merits of the government’s Exemption 4 withholding decisions. To

aid its decision, the Court will require supplemental briefs on the issue of foreseeable harm.

Although FOIA does not provide for protective orders or the compelled return or destruction of

inadvertently produced material, federal courts have “long ‘understood that certain implied

powers must necessarily result to our Courts of justice from the very nature of their institution,’

which ‘are governed not by rule or statute but by the control necessarily vested in courts to

manage their own affairs so as to achieve the orderly and expeditious disposition of cases.’”

Sierra Club, 505 F. Supp. 3d at 988–89 (quoting Chambers, 501 U.S. at 43); see also United

States v. Moussaoui, 483 F.3d 220, 236 (4th Cir. 2007); Pub. Citizen, 953 F. Supp. at 404. Those

inherent powers are routinely used to bar parties from disseminating information inadvertently

disclosed in FOIA proceedings, at least temporarily. See, e.g., Pub. Citizen, 953 F. Supp. at 404;

ACLU I, 2012 WL 13075284, at *5; Hersh & Hersh v. Dep’t of Health & Hum. Servs., No. 06-

cv-4234, 2008 WL 901539, at *9 (N.D. Cal. Mar. 31, 2008).

There are nonetheless significant limits to the federal courts’ inherent powers. See

Degen, 517 U.S. at 829. The extent of such powers “must be delimited with care, for there is a

danger of overreaching when one branch of the Government, without benefit of cooperation or

correction from the others, undertakes to define its own authority.” Id. “Principles of deference

counsel restraint in resorting to inherent power and require its use to be a reasonable response to

30
the problems and needs that provoke it.” Id. (citing Chambers v. NASCO, 501 U.S. 32, 44

(1991); Ortega-Rodriguez v. United States, 507 U.S. 234, 244 (1993); Thomas v. Arn, 474 U.S.

140, 146–48 (1985)). That is why at least one other federal court has declined to exercise its

implied power to bar dissemination of information inadvertently disclosed in a FOIA proceeding.

See Sierra Club, 505 F. Supp. 3d at 991.

Cases illustrating when the federal courts can and should use their inherent powers to

effectively permit the government to claw back information inadvertently disclosed in FOIA

proceedings illustrate several significant considerations. The sole in-district precedent discussed

by the parties, Public Citizen, makes clear that courts may appropriately issue temporary

protective orders controlling mistakenly disclosed information. See 953 F. Supp. at 404–05

(issuing protective order “until [the court] determines whether [the information] qualifies for

non-disclosure” and noting that “this order is only temporary in nature”).

Whether a temporary protective order should then be extended to permanently bar further

dissemination of information is a harder question. In ACLU I, the Southern District of New York

agreed to issue a permanent clawback order after the Department of Defense mistakenly

produced a document reflecting classified information about military detainees while complying

with a court-supervised, stipulated disclosure plan. See 2012 WL 13075284, at *1, *3. The

agency asked the court to confirm that the document could have properly been withheld as

classified and, if so, to order the plaintiffs to return it. Id. at *2. The court held that the

document was in fact classified and that its disclosure could reasonably be expected to harm

national security. Id. at *5. The court then relied on its inherent equitable powers to compel the

plaintiffs to return the document, reasoning that the court’s powers had been invoked not solely

by the agency’s request for protective relief, but also by the plaintiff’s initiation of their FOIA

31
action and invitation to the court to supervise their stipulation with the agency. See id. Also

significant was the scope of harm that could result if classified information impacting the

national security was made public. “Surely,” the court reasoned, “if a district court in a FOIA

case has the authority to order the return of . . . inadvertently produced documents wholly

unrelated to national security, then this Court has the authority to order the return an

inadvertently produced classified document that implicates national security and which Plaintiffs

are not authorized to possess.” Id. (citing Hersh, 2008 WL 901539, at *9; Al-Haramain Islamic

Found. v. Bush, 451 F. Supp. 2d 1215, 1229 (D. Or. 2006), rev’d in part on other grounds, 507

F.3d 1190 (9th Cir. 2007)).

On the other hand, Sierra Club explains why a request for protective relief in a FOIA

case is an “extraordinary” ask that should not be granted as a matter of course. 505 F. Supp. 3d

at 992. Observing that “[m]any mistakes by litigants have consequences,” the Northern District

of California declined to use its implied power to compel the destruction of disclosed material

after the government released partially redacted emails but “inadvertently failed to redact in all

instances” the names of three petroleum lobbyists and their business email addresses. Sierra

Club, 505 F. Supp. 3d at 984–85, 991–92. The releasing agency had planned to withhold the

information under FOIA Exemption 6, which protects personal privacy interests. See id. at 985.

The agency could not identify any “serious and non-speculative harm likely to result from Sierra

Club’s continued possession” of the information. Id. at 992. So the court declined to order

destruction of the documents, reasoning that no authority offered “a compelling rationale for

holding that a court should wield its inherent authority to compel the return or destruction of

documents produced under FOIA any time the producing agency could have invoked a statutory

exemption but inadvertently failed to do so.” Id. at 991.

32
 It is clear from these cases that this Court can grant the FCC protective relief. As

discussed above, the Court requests that the parties supplement the record to demonstrate the

harm that will result from the public disclosure of the withheld materials. The more robust

record developed through supplemental briefing will provide further insight into the harm likely

to occur if the Inadvertent Disclosure is left public and whether the FCC properly invoked FOIA

Exemption 4. Id. at 992. However, in the interim, Ms. Wilson should not be allowed to use or

further publicize the inadvertently disclosed information. Accordingly, the Court grants in part

the Motion for Protective Order, and orders that, pending resolution of the propriety of the

FCC’s withholding decisions after the submission of supplemental briefing, Ms. Wilson and her

counsel shall not disclose, disseminate, or make use of the Inadvertent Disclosure.

CONCLUSION AND ORDER

For these reasons, the FCC’s motion for a protective order, ECF No. 21, is GRANTED

IN PART. Ms. Wilson’s first motion for summary judgment, ECF No. 15, is DENIED as

MOOT. Ms. Wilson’s revised motion for summary judgment, ECF No. 25, and the FCC’s cross-

motion for summary judgment, ECF No. 26, are both DENIED WITHOUT PREJUDICE. The

undisputed material facts show that the information withheld from Ms. Wilson is “confidential

commercial information” within the meaning of FOIA Exemption 4, but at this time, the

government has failed to prove that release of the information would “harm an interest protected

by” the exemption, and Ms. Wilson has not demonstrated that the agency cannot meet that

burden as a matter of law. The parties shall confer and submit a proposed schedule for

submitting renewed motions for summary judgment to address this issue.

Dated: September 15, 2022

ROBIN M. MERIWEATHER
UNITED STATES MAGISTRATE JUDGE
33