CREW v. DOJ

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 20, 2022 Decided January 31, 2023

No. 21-5276

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON,

APPELLANT

v.

UNITED STATES DEPARTMENT OF JUSTICE,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:19-cv-03626)

Jessica A. Lutkenhaus argued the cause for appellant.

With her on the briefs were Nikhel S. Sus and Ari Holtzblatt.

John Davisson was on the brief for amici curiae the

Electronic Privacy Information Center and the Electronic

Frontier Foundation in support of appellant.

Khahilia Y. Shaw and Mehreen A. Rasheed were on the

brief for amicus curiae American Oversight in support of

appellant.

Amanda L. Mundell, Attorney, U.S. Department of Justice,

argued the cause for appellee. With her on the brief were Sarah

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E. Harrington, Deputy Assistant Attorney General, and

Michael S. Raab, Attorney.

Before: PILLARD and CHILDS, Circuit Judges, and

SENTELLE, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge PILLARD.

Opinion concurring in the judgment filed by Senior Circuit

Judge SENTELLE.

PILLARD, Circuit Judge: In 2019, the Department of

Justice announced that it would resume federal executions

using a new lethal agent: the drug pentobarbital. Shortly

thereafter, Citizens for Responsibility and Ethics in

Washington submitted a Freedom of Information Act (FOIA)

request for the Bureau of Prisons’ records related to its

procurement of pentobarbital. The Bureau of Prisons supplied

some records but withheld any information that could identify

companies in the government’s pentobarbital supply chain.

The Bureau invoked FOIA Exemption 4, which protects,

among other things, trade secrets and confidential commercial

information. The district court sustained those withholdings

and entered judgment for the Bureau.

We conclude on de novo review that the Bureau of Prisons

has not met its burden to justify the challenged nondisclosures.

In particular, the Bureau has not provided the detailed and

specific explanation required to justify withholding the

information as “commercial” and “confidential” under

Exemption 4. We thus reverse and remand the case to the

district court for further proceedings.

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BACKGROUND

On July 25, 2019, the Department of Justice (Department)

announced that it would resume federal executions after a

nearly two-decade hiatus. The Department adopted an

addendum to the existing federal execution protocol to specify

a different lethal agent. It then scheduled executions for

several federal inmates.

In lieu of the three-drug procedure used in the past, the

addendum authorized a new execution procedure using a lethal

dose of a single drug—pentobarbital. A bulk manufacturer of

the active pharmaceutical ingredient for pentobarbital, as well

as a compounding pharmacy, agreed to contract with the

Bureau of Prisons (Bureau) to make an injectable solution.

Independent laboratories agreed to conduct quality-control

testing on the drug.

The Bureau ultimately used pentobarbital to execute 13

people between July 2020 and January 2021. In December

2020, the Department amended its regulations to authorize

methods of execution other than lethal injection. See 28 C.F.R.

§ 26.3(a)(4). But then, in July 2021, the Department

announced a moratorium on federal executions.

Meanwhile, Citizens for Responsibility and Ethics in

Washington (CREW) was seeking records on the federal

government’s procurement of pentobarbital, pentobarbital

sodium, and/or Nembutal, which we here collectively refer to

as “pentobarbital.” Less than a month after the Justice

Department announced its July 2019 addendum to the

execution protocol, CREW sent a FOIA request to the Bureau

of Prisons, asking for “all records from February 14, 2019 to

the present related to the procurement of pentobarbital,

pentobarbital sodium, or Nembutal to be used in federal

executions, including without limitation any notifications to or

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communications with vendors, solicitation information,

requests for information, subcontracting leads, and contract

awards.” Aug. 8, 2019, FOIA Request to Bureau of Prisons

(J.A. 284). CREW submitted a similar FOIA request to the

Justice Department, which is not at issue here.

The Bureau of Prisons conducted a search and found 56

pages of non-email records that were responsive to CREW’s

request, as well as 1,095 responsive email records, of which

848 were duplicative. The Bureau initially deemed all

responsive records categorically exempt from disclosure under

several FOIA exemptions: Exemption 4 (confidential

commercial information), Exemption 5 (privileged material),

Exemption 6 (material invading personal privacy), and

Exemption 7 (material compiled for law enforcement

purposes). See 5 U.S.C. § 552(b)(4)-(7).

CREW filed an administrative appeal and, when the

Bureau did not respond, sued the Bureau in district court. With

the suit pending before the district court, the parties narrowed

their dispute to a subset of the responsive records. The Bureau

withheld documents pursuant to Exemption 7(E), which

applies to “records or information compiled for law

enforcement purposes, but only to the extent that the

production of such law enforcement records or information . . .

would disclose techniques and procedures for law enforcement

investigations or prosecutions . . . if such disclosure could

reasonably be expected to risk circumvention of the law.” 5

U.S.C. § 552(b)(7). The district court granted summary

judgment for CREW on the Exemption 7(E) withholdings,

which the Bureau has not appealed.

The Bureau also continued to withhold under Exemption

4—which protects confidential commercial information from

disclosure—any documents disclosure of which could reveal

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the identity of its pentobarbital contractors. The information

withheld under Exemption 4 included the names of the

Bureau’s contractors as well as key terms from its pentobarbital

contracts such as drug price, quantity, expiration dates,

invoices, container units, lot numbers, purchase

order/reference numbers, substance descriptions, drug

concentration, and dates of purchase, service, and/or delivery.

To justify its withholdings, the Bureau submitted declarations

from a Bureau information specialist, Kara Christenson, and

one of its attorneys, Rick Winter. It did not provide

declarations or affidavits from the contractors themselves.

The district court granted summary judgment for the

Bureau on its Exemption 4 withholdings, concluding that the

withheld identifying information was both “commercial” and

“confidential” as required under Exemption 4. The court

determined that the withheld information was “commercial”

because disclosing the contractors’ identities could subject the

contractors to harassment, cost them business, or cause them to

exit the market for pentobarbital altogether. The information

was also “confidential” because, at the pentobarbital

contractors’ request, the government agreed to keep the

contractors’ identities confidential to the greatest extent

possible under law, and the companies themselves have

typically kept the information private. CREW timely appealed.

After CREW filed its opening brief in this appeal, the

Bureau discovered that seven records withheld in full were

already available in the public domain with only limited

redactions. Those documents had been filed publicly, with

partial redactions of confidential commercial information, as

part of the administrative record in other litigation over the

Bureau’s lethal-injection protocol. See Dkt. No. 39-1, In re

Fed. Bureau of Prisons’ Execution Protocol Cases, No. 1:19-

mc-00145 (D.D.C. Nov. 13, 2019). On discovering the earlier

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disclosure, the Bureau gave the relevant pages of that

administrative record to CREW.

DISCUSSION

We review the district court’s grant of summary judgment

in a FOIA case de novo. Pavement Coatings Tech. Council v.

U.S. Geological Surv., 995 F.3d 1014, 1020-21 (D.C. Cir.

2021). On appeal, CREW argues that the Bureau has not

adequately demonstrated how information that could identify

its pentobarbital contractors is confidential commercial

information within the meaning of FOIA Exemption 4. CREW

also claims that, because the Bureau has already publicly

disclosed certain purportedly identifying information, it has

waived the application of Exemption 4 with respect to that

same information in other documents. We consider those

arguments in turn.

I. Exemption 4

FOIA is “designed ‘to pierce the veil of administrative

secrecy and to open agency action to the light of public

scrutiny.’” U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991)

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

The Act requires federal agencies to disclose records to the

public on request unless a record is protected by one of nine

statutory exemptions. See 5 U.S.C. § 552(b). “[T]hese limited

exemptions do not obscure the basic policy that disclosure, not

secrecy, is the dominant objective of the Act.” Nat’l Ass’n of

Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002)

(quoting Rose, 425 U.S. at 361). The FOIA exemptions must

be “narrowly construed,” Milner v. Dep’t of Navy, 562 U.S.

562, 565 (2011) (quoting FBI v. Abramson, 456 U.S. 615, 630

(1982)), even though they “are as much a part of FOIA’s

purposes and policies as the statute’s disclosure requirement,”

Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2366

7

(2019) (formatting modified) (quoting Encino Motorcars, LLC

v. Navarro, 138 S. Ct. 1134, 1142 (2018)).

The agency bears the burden to justify nondisclosure under

any exemption it asserts, Ray, 502 U.S. at 173, and ordinarily

may carry that burden by submitting declarations “attesting to

the basis for the agency’s decision,” Campbell v. U.S. Dep’t of

Just., 164 F.3d 20, 30 (D.C. Cir. 1998), as amended on denial

of reh’g (Mar. 3, 1999). “Summary judgment is warranted on

the basis of agency affidavits when the affidavits describe the

justifications for nondisclosure with reasonably specific detail,

demonstrate that the information withheld logically falls within

the claimed exemption, and are not controverted by either

contrary evidence in the record nor by evidence of agency bad

faith.” Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir.

2009) (quoting Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir.

1984)).

Exemption 4, the sole exemption at issue on appeal, allows

federal agencies to withhold “trade secrets and commercial or

financial information obtained from a person and privileged or

confidential.” 5 U.S.C. § 552(b)(4). When an agency

withholds non-trade-secret information under Exemption 4, it

must demonstrate that the withheld information is

“(1) commercial or financial, (2) obtained from a person, and

(3) privileged or confidential.” Pub. Citizen Health Rsch.

Grp. v. FDA, 704 F.2d 1280, 1290 (D.C. Cir. 1983).

The Bureau asserts that Exemption 4 applies here to

certain withheld “commercial and financial information, as

well as to identifying information.” Christenson Decl. ¶ 43

(J.A. 110-11). The Bureau claims entitlement to withhold “any

information that could lead to the identity” of its pentobarbital

suppliers or of individuals or companies that “performed

related critical services on that [p]entobarbital supply,”

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asserting that those individuals or companies “have typically

kept [such identifying information] private.” Id. ¶¶ 48, 51 (J.A.

111-12).

CREW’s challenge is a narrow one, focused on just a

subset of the Bureau’s Exemption 4 withholdings. CREW does

not appeal the Bureau’s withholding of clearly commercial

information, such as “price and contract term negotiations” and

“pricing and business strategies,” id. ¶ 49 (J.A. 112), which fall

neatly within Exemption 4. Nor does CREW dispute that any

of the withheld information was “obtained from a person.” 5

U.S.C. § 552(b)(4); see id. § 551(2).

CREW instead zeroes in on two deficiencies it sees in the

Bureau’s claim of exemption. First, it asserts that the names of

the Bureau’s contractors cannot be “commercial . . .

information” as contemplated by Exemption 4. Id. § 552(b)(4).

Second, it argues that the Bureau has not met its burden to

demonstrate that certain key contract terms, such as drug

quantities and expiration dates, could in fact reveal the

contractors’ identities such that they are “confidential”

commercial information. Id. Importantly, CREW disputes the

commercial nature of only the contractors’ names (not the

contract terms) and disputes the confidentiality of only the

requested contract terms (not the names). In other words,

CREW does not dispute that certain Exemption 4 requirements

are met—in particular, that the names are confidential and that

the contract terms are commercial. We begin then with

whether the contractors’ names are “commercial . . .

information,” before turning to whether the Bureau has

justified withholding certain contract terms as “confidential”

on the ground that they are identifying.

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a. Whether the contractors’ names are

“commercial . . . information”

Under Exemption 4, the Bureau seeks to withhold the

names of contractors involved in the government’s

procurement and testing of pentobarbital. Again, CREW does

not challenge that those names are “confidential” or that they

were “obtained from a person.” CREW asserts only that the

agency fails to meet its burden to demonstrate that the

contractors’ names are “commercial . . . information.”

We hold that the Bureau has not met its burden to justify

nondisclosure of the contractors’ names. To withhold them

under Exemption 4, the government must demonstrate that the

names are commercial in and of themselves—a showing that

the Bureau here has not made. The Bureau instead reads

Exemption 4 to apply whenever disclosure of confidential

information, regardless of its character, could have commercial

or financial repercussions. But that reading disregards the text

of Exemption 4, the structure, history, and purpose of FOIA,

and longstanding Exemption 4 precedent.

Our consideration of Exemption 4 “starts with its text.”

Milner, 562 U.S. at 569; see also Argus Leader, 139 S. Ct. at

2364. Under the plain text of Exemption 4, the term

“commercial” modifies the word “information.” 5 U.S.C.

§ 552(b)(4). “Adjectives modify nouns—they pick out a subset

of a category that possesses a certain quality.” Weyerhaeuser

Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361, 368 (2018).

The use of such a modifier in Exemption 4 “clearly marks the

provision’s boundaries.” Milner, 562 U.S. at 569. It signals

that Exemption 4 does not cover all confidential information,

but rather the subset of such information that is itself

commercial. See Weyerhaeuser, 139 S. Ct. at 368.

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We have explained that, under Exemption 4, information

must be commercial “in and of itself,” meaning it “serves a

‘commercial function’ or is of a ‘commercial nature.’” Norton,

309 F.3d at 38 (quoting Am. Airlines, Inc. v. Nat’l Mediation

Bd., 588 F.2d 863, 870 (2d Cir. 1978)). Because FOIA does

not define the word “commercial,” we have given that term its

ordinary meaning. Id. And, in ordinary parlance, information

is commercial if it pertains to the exchange of goods or services

or the making of a profit. See Webster’s Third New

International Dictionary 456 (1966) (defining “commercial” to

mean “of, in, or relating to commerce” or “having profit as the

primary aim”); id. (defining “commerce” to mean “the

exchange or buying and selling of commodities esp. on a large

scale and involving transportation from place to place”);

Webster’s New World Dictionary 294 (1968) (defining

“commercial” to mean “of, or connected with commerce” or

“made or done primarily for sale or profit”).

Given the ordinary meaning of “commercial,” Exemption

4 paradigmatically applies to records that a business owner

customarily keeps private because they “actually reveal basic

commercial operations, such as sales statistics, profits and

losses, and inventories, or [that] relate to the income-producing

aspects of a business.” Pub. Citizen, 704 F.2d at 1290. The

exemption “applies (among other situations) when 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 Com., 473 F.3d 312, 319 (D.C. Cir. 2006). Indeed, in

enacting FOIA, Congress sought to shield from public release

intrinsically valuable business information such as “business

sales statistics, inventories, customer lists, and manufacturing

processes.” S. Rep. No. 89-813, at 9 (1965); see also H.R. Rep.

No. 89-1497, at 10 (1966) (similar).

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While the exemption is “not confined” to information

“‘relate[d] to the income-producing aspects of a business,’”

Baker & Hostetler, 473 F.3d at 319 (emphasis omitted)

(quoting Pub. Citizen, 704 F.2d at 1290), its reach is finite. As

we have long recognized, “not every bit of information

submitted to the government by a commercial entity qualifies

for protection under Exemption 4.” Pub. Citizen, 704 F.2d at

1290.

In particular, Exemption 4 does not cover all information

the public disclosure of which could inflict commercial harm.

The exemption’s text, especially when read in statutory

context, confirms as much. Unlike other FOIA exemptions

enacted at the same time, Exemption 4 does not make potential

consequences of disclosure an explicit ground for withholding.

Take Exemption 6, which 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) (emphasis added). Similarly, Exemption 7 applies

to “records or information compiled for law enforcement

purposes, but only to the extent that the production of such law

enforcement records or information” has specific statutorily

enumerated consequences. Id. § 552(b)(7) (emphasis added).

By their own terms, Exemptions 6 and 7 require the

government to consider how disclosure might have certain

statutorily enumerated repercussions. Exemption 4 contains no

such language; it protects only information that is itself a “trade

secret[]” or “commercial or financial information obtained

from a person and privileged or confidential.” Id. § 552(b)(4).

If the requirement that information be “commercial or

financial” were satisfied by commercial or financial

consequences alone, Congress could have crafted a different

exemption, akin to Exemptions 6 and 7. It could have

protected, for instance, “information obtained from a person

which is privileged or confidential, the disclosure of which

12

could affect a commercial or financial interest.” But Congress

did not do so, and we must give effect to the language Congress

chose.

Just as Exemption 4 does not protect against any and all

commercial harm, it does not directly protect against asserted

harm to the government as a result of public scrutiny following

disclosure. The Bureau warns that advocacy by death penalty

opponents has made it difficult for governments to acquire

pentobarbital for use in executions, implying that further

disclosure will only compound that difficulty. See Christenson

Decl. ¶ 57 (J.A. 114). But that possibility does not itself render

Exemption 4 applicable. The Bureau concedes as much. See

Oral Argument at 30:48-56. After all, the text of Exemption 4

does not in any way refer to the government’s interests. In that

regard, it contrasts markedly with Exemption 7(A), for

instance, which protects certain law enforcement records to the

extent their production “could reasonably be expected to

interfere with enforcement proceedings.” Compare 5 U.S.C.

§ 552(b)(7)(A), with id. § 552(b)(4). To the extent that

Congress shares the Bureau’s concern about its ability to find

willing contractors to supply drugs for use in executions,

Congress could of course legislate—as several states have

done—that the government keep confidential the identities of

any entities involved in the lethal injection process. See, e.g.,

Ark. Code Ann. § 5-4-617(h)(i)(1)(B); Miss. Code Ann.

§ 99-19-51(3)(c), (4); Tex. Code Crim. Proc. Ann. art.

43.14(b)(2). But, again, Congress has not done so. In the

absence of any such legislation, our “judicial role is to enforce”

the balance Congress struck in enacting FOIA, rather than

“expand (or contract) an exemption” on a case-by-case basis.

Milner, 562 U.S. at 571 n.5.

Informed by Exemption 4’s plain text, statutory context,

and history, we take further guidance from our precedent

13

interpreting and applying the line between commercial and

noncommercial information. In evaluating Exemption 4

withholdings, we have consistently looked to whether

information is commercial “in and of itself,” meaning it “serves

a ‘commercial function’ or is of a ‘commercial nature.’”

Norton, 309 F.3d at 38 (quoting Am. Airlines, 588 F.2d at 870).

We have read Exemption 4 to cover only information that, in

and of itself, demonstrably pertains to the exchange of goods

or services or the making of a profit.

We have defined commercial information to include, for

example, a firm’s data or reports on its commercial service or

its product’s favorable or unfavorable attributes, see, e.g., Pub.

Citizen, 704 F.2d at 1290; Critical Mass Energy Project v.

Nuclear Regul. Comm’n, 830 F.2d 278, 279-81 (D.C. Cir.

1987), vacated on other grounds, 975 F.2d 871 (1992) (en

banc), or information an industry has gathered regarding its

competitive strengths and weaknesses, see, e.g., Baker &

Hostetler, 473 F.3d at 319. In so doing, we have looked to the

nature of the information itself. Consider Public Citizen, in

which we held that health and safety data that medical device

manufacturers submitted to the Food and Drug Administration

were commercial information. 704 F.2d at 1290. We there

reasoned that the manufacturers “clear[ly]” had a “commercial

interest” in the information itself, which “document[ed] . . . the

health and safety experience of their products” and would thus

“be instrumental in gaining marketing approval for their

products.” Id. Likewise, in Critical Mass we readily

concluded that nuclear plant safety reports prepared by a utility

industry consortium were commercial information. 830 F.2d

at 279-80. To reach that conclusion, we examined the

“character of the information” in the reports; the information

we identified as commercial included “details of the operations

of [utility companies’] nuclear power plants,” “apprais[als]” of

the products of certain vendors, and descriptions of “health and

14

safety problems experienced during the operation of nuclear

power facilities.” Id. at 281.

Conversely, the government may not rely on Exemption 4

where the withheld information only tenuously or indirectly

concerns the exchange of goods or services or the making of a

profit. See, e.g., Norton, 309 F.3d at 38-39; Wash. Rsch.

Project v. Dep’t of Health, Educ. & Welfare, 504 F.2d 238,

244-45 (D.C. Cir. 1974); Getman v. NLRB, 450 F.2d 670, 673

(D.C. Cir. 1971). For instance, in Norton we held that

Exemption 4 did not apply to owl-sighting data created through

a partnership between the U.S. Fish and Wildlife Service and a

state agency. 309 F.3d at 38-39. We explained that, even

though the state agency conditioned the Service’s database

access on the state agency’s receipt of federal funds, the data

exchange did “not constitute a commercial transaction in the

ordinary sense” because the state was “forbidden by statute to

sell the owl-sighting data,” the data were not created “in

connection with a commercial enterprise,” and there was “no

evidence that the parties who supplied the owl-sighting

information ha[d] a commercial interest at stake in its

disclosure.” Id. Similarly, in Washington Research Project,

we concluded that Exemption 4 did not apply to a scientist’s

research designs as submitted in federal grant applications,

because it “defie[d] common sense to pretend that the scientist

is engaged in trade or commerce.” 504 F.2d at 244. And in

Getman, we held that a “bare list” of the names and addresses

of employees eligible to vote in certain union representation

elections “cannot be fairly characterized” as commercial,

making Exemption 4 “[o]bviously” inapplicable. 450 F.2d at

673.

Cognizant of the statutory terms and precedents that bind

us, we turn to the question presented here: whether the withheld

names of the Bureau’s pentobarbital contractors are

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“commercial” information within the meaning of Exemption 4.

Perhaps not surprisingly, we have never considered whether

Exemption 4 applies to a business’s name. After all, most

businesses—unlike, apparently, the contractors here—eagerly

disclose their names, whether to publicize their identities,

develop their brands, register their names as trademarks, or use

them as website domains. And, where business names are not

customarily and actually kept private, they are not in any case

confidential commercial information that may be withheld

under Exemption 4. See Argus Leader, 139 S. Ct. at 2363-66.

That pervasive reality is no obstacle here because, as noted

above, CREW challenges only the commercial character of the

contractors’ names, not their confidentiality.

The Bureau seeks to justify withholding the contractors’

names because, if they were disclosed, the contractors could

face public opprobrium aimed at discouraging them from

providing pentobarbital for use in executions, which in turn

might hurt the contractors’ business or cause them to

voluntarily exit the pentobarbital market. See Christenson

Decl. ¶¶ 43-60 (J.A. 110-15). According to the Bureau, its

suppliers are “well aware” that businesses “are commonly

subject to harassment, threats, and negative publicity leading

to commercial decline when it is discovered that they are

providing substances to be used in implementing the death

penalty.” Id. ¶ 52 (J.A. 112-13). The Bureau describes how

one pharmacy demanded that a state prison system return its

drugs once the public discovered the state was using them for

executions, id. ¶ 53 (J.A. 113), how another company exited

the market for a lethal substance after a concerted campaign by

anti-death penalty advocates, id. ¶ 56 (J.A. 114), and how

difficult it has become for state and federal government

agencies in the United States to find suppliers for lethal

injections, see id. ¶ 57 (J.A. 114-15).

16

On its own terms, the Bureau’s claim of exemption suffers

from some shortcomings. First, the Bureau’s own declarations

cast at least some doubt on its claim that the contractors’ names

are commercial information. In one of its declarations, the

Bureau stated that it applied Exemption 4 to “commercial and

financial information, as well as to identifying information” in

the requested records. Id. ¶ 43 (J.A. 110-11) (emphasis added).

It makes little sense to treat “identifying information” as a

distinct category from “commercial and financial” information

unless identifying information is not necessarily commercial in

and of itself.

Second, the Bureau conflates the “commercial” and

“confidential” inquiries under Exemption 4. The Bureau’s own

declarations make clear that the risk of public outrage is why

“[t]his [identifying] information is kept private.” Id. ¶ 52 (J.A.

112). But the fact that a business’s name is kept private shows

only that it may be “confidential”—and CREW does not

dispute that the contractors and the government have so treated

the names of the contractors at issue here. See Argus Leader,

139 S. Ct. at 2366. It is not enough under Exemption 4,

however, for information to be “confidential.” We would

“torture[] the plain meaning of Exemption (4)” to apply it to

“any information given [to] the [g]overnment in confidence.”

Getman, 450 F.2d at 673; cf. Dep’t of Interior v. Klamath

Water Users Protective Ass’n, 532 U.S. 1, 9, 12 (2001). The

information must also be commercial in its own right. Norton,

309 F.3d at 38.

Third, the Bureau claims that companies are exiting the

market for lethal injection drugs as a result of activist pressure,

but its cited examples show that companies have exited or

decided against participating in the lethal injection market for

various reasons, not all of them commercial. A Danish

manufacturer of pentobarbital stopped selling it for use in

17

executions because “[t]hat manufacturer opposed the death

penalty.” Glossip v. Gross, 576 U.S. 863, 871 (2015); see also

Christenson Decl. ¶ 56 (J.A. 114). A German manufacturer of

propofol, a drug incorporated in Missouri’s execution protocol,

no longer sells the drug for executions out of concern that the

European Union would ban all exports of the drug for any

purpose if it were ever used in executions. See Kevin Murphy,

German firm blocked shipments to U.S. distributor after drug

sent for executions, REUTERS (Oct. 10, 2013, 10:57 PM),

https://perma.cc/963D-P5WU; Christenson Decl. ¶ 113 (J.A.

133) (citing the Murphy article); DOJ Br. 23-24. And one

testing laboratory publicly announced that it would not test

pentobarbital for use in executions after it learned that it had

“unknowingly been testing pentobarbital” for use as a lethal

agent, despite the laboratory’s longstanding “refus[al] to do

so.” E. Michael Pruett & Russell Odegard, Testing

Pentobarbital, DYNALABS (July 10, 2020),

https://perma.cc/MD96-ZC6C; see Christenson Decl. ¶ 118

(J.A. 135-36). The Bureau thus ignores the degree to which

reasons other than commercial effects of public outcry have

prompted companies to exit the pentobarbital market.

Even apart from those evidentiary shortcomings, the

Bureau’s claim of exemption fails for an antecedent,

independent reason: The Bureau does not explain in any detail

how a contractors’ name is commercial “in and of itself”—that

is, how the name “serves a ‘commercial function’ or is of a

‘commercial nature.’” Norton, 309 F.3d at 38 (quoting Am.

Airlines, 588 F.2d at 870). Instead, the Bureau rests its claim

of exemption exclusively on the potential commercial

consequences of disclosure, asserting that the contractors could

face public hostility and resulting economic harm if their

names were disclosed. At oral argument, the Bureau went

further to claim that Exemption 4 covers any confidential

information the disclosure of which could have commercial

18

consequences, positive or negative. Oral Argument at 22:09-

19.

But the commercial consequences of disclosure are not on

their own sufficient to bring confidential information within the

protection of Exemption 4 as “commercial.” As discussed

above, such an approach is at odds with the text and context of

Exemption 4 and our own precedent. See supra at 11-14. And

it would stretch Exemption 4 to cover nearly any information

that a business and the government agreed to keep secret,

vitiating FOIA’s ability to shine light on public contracting.

Indeed, the Bureau’s approach subverts the very purposes

that Congress enacted FOIA to serve. The Bureau claims that

the contractors’ names should be exempt from disclosure

because, as a result of significant public interest in those names,

disclosure could cause the contractors to face criticism that

might, in turn, cause them to suffer financially. Far from

“open[ing] agency action to the light of public scrutiny,” Ray,

502 U.S. at 173 (quoting Rose, 425 U.S. at 361), that theory of

exemption converts “public scrutiny” into a potential basis for

withholding information. Under the Bureau’s approach,

whenever public scrutiny might have reputational

repercussions with potential knock-on commercial effects, the

government and a contractor could shield information from

public view simply by agreeing to keep it secret. That is not

what Congress had in mind when it protected “citizens’ right

to be informed about ‘what their government is up to.’” Id. at

177 (quoting Dep’t of Just. v. Reporters Comm., 489 U.S. 749,

773 (1989)).

With little else to justify its Exemption 4 withholdings, the

Bureau seeks support in acontextual readings of stray sentences

from our past decisions. The Bureau leans on Baker &

Hostetler and Critical Mass, where we noted as relevant under

19

Exemption 4 that the “commercial fortunes” of a business

“could be materially affected by the disclosure.” Baker &

Hostetler, 473 F.3d at 319 (quoting Critical Mass, 830 F.2d at

281). The Bureau also points to Norton, where we considered

in part whether the parties submitting owl-sighting information

had a “commercial interest at stake in its [non]disclosure.” 309

F.3d at 39. But cf. Pub. Citizen, 704 F.2d at 1290 (evaluating

whether medical device manufacturers had a “commercial

interest in the requested information” without regard to any

potential consequences of disclosure). Those decisions

identify commercial harms a business might suffer following

disclosure as confirmation of the commercial or

noncommercial nature of the information itself. They do not

treat such consequences alone as sufficient to establish that

information is “commercial” under Exemption 4.

Our cases consistently consider whether the information in

and of itself has a commercial nature or serves a commercial

function. See Norton, 309 F.3d at 38; supra at 12-14. Baker &

Hostetler is illustrative. There, we held that letters submitted

to the government on behalf of American lumber companies in

connection with a trade dispute were confidential commercial

information. Baker & Hostetler, 473 F.3d at 318-320. In

reaching that conclusion, we first described the commercial

content of the letters themselves: The letters detailed the

“commercial strengths and weaknesses of the U.S. lumber

industry,” the effect of potential trade measures “on the

commercial activities and competitive position of domestic

lumber companies,” the “requirements for achieving a

competitive . . . lumber market,” the “competitive challenges

that domestic lumber companies face[d],” and the industry’s

views and recommendations regarding negotiations in the

U.S.-Canada lumber trade dispute. Id. at 319. The fact that

“disclosure would help rivals to identify and exploit” the

American lumber industry’s “competitive weaknesses” only

20

reinforced that those letters contained commercial information.

Id. at 320. Put otherwise, we highlighted the commercial

consequences of disclosure only to confirm what we had

already found apparent from the letters themselves: that they

contained “commercial . . . information.”

In sum, the Bureau does not attempt to show that its

contractors’ names are “commercial” in and of themselves, but

instead reasons by example to suggest the contractors will

suffer commercial harm on disclosure. Heeding the Supreme

Court’s command to give FOIA exemptions a “narrow

compass,” Milner, 562 U.S. at 571 (quoting U.S. Dep’t of Just.

v. Tax Analysts, 492 U.S. 136, 151 (1989)), we reaffirm that

withheld information must be commercial in and of itself to

qualify for withholding under Exemption 4; that disclosure

might cause commercial repercussions does not suffice to show

that information is “commercial” under Exemption 4. Because

the Bureau impermissibly relies solely on the downstream

opposition that the pentobarbital contractors might suffer on

disclosure of their names, we need not now decide whether or

under what other circumstances a business name might itself

be “commercial . . . information” for purposes of Exemption 4.

We reverse and remand for further proceedings because

the Bureau has not provided “detailed and specific information

demonstrating ‘that material withheld is logically within the

domain of’” Exemption 4. Campbell, 164 F.3d at 30 (quoting

King v. U.S. Dep’t of Just., 830 F.2d 210, 217 (D.C. Cir. 1987)).

On remand, the district court may require supplemental

affidavits to help it determine whether the contractors’ names

demonstrably pertain to the exchange of goods or services or

the making of a profit, such that they may be withheld under

Exemption 4. See Pavement Coatings, 995 F.3d at 1024. What

matters is whether the contractors’ names in and of themselves

are commercial or noncommercial, not whether the names

21

might reveal the existence of a contract likely to attract public

scrutiny.

b. Whether key contract terms are “confidential”

CREW also challenges the Bureau’s Exemption 4

withholding of so-called “key contract terms”—namely, drug

prices, quantities, expiration dates, invoices, container units,

lot numbers, purchase order/reference numbers, substance

descriptions, drug concentrations, and dates of purchase,

service, and/or delivery. The Bureau asserts that disclosing

those terms could reveal the identities of individuals and

companies involved in the procurement of pentobarbital.

CREW does not dispute that those terms are “commercial” and

were “obtained from a person”; it challenges only whether the

Bureau has met its burden of showing those terms are

“confidential.”

To address that claim, we begin with the meaning of the

word “confidential,” which the Supreme Court recently

clarified in Argus Leader. Argus Leader considered two

conditions that might be required for information provided to

the government to be confidential within the meaning of

Exemption 4: (1) that information is “customarily kept private,

or at least closely held, by the person imparting it,” and (2) that

“the party receiving [the information] provides some assurance

that it will remain secret.” 139 S. Ct. at 2363. The Court held

that at least the first condition must be met, reasoning that “it

is hard to see how information could be deemed confidential if

its owner shares it freely.” Id. In Argus Leader, the

government met that condition with uncontested testimony that

the businesses providing the information to the government

“customarily do not disclose [it] or make it publicly available

‘in any way.’” Id. As to the second possible condition, the

Court held that it need not consider whether privately held

22

information might “lose its confidential character for purposes

of Exemption 4 if it’s communicated to the government

without assurances that the government will keep it private,”

because such assurances had been provided. Id. We likewise

do not decide whether the second condition must be met,

because CREW does not dispute the point for purposes of this

appeal.

Ordinarily then, to justify Exemption 4 withholding, the

government must at least demonstrate that the withheld

information itself is “customarily and actually treated as private

by its owner.” Id. at 2366. Here, that would mean showing

that the contractors customarily and actually maintain in

secrecy their drug prices, expiration dates, and other withheld

contract terms.

But in its declarations the Bureau did not attempt to make

that showing directly, instead taking a different and

unconventional tack. It first asserted that it withheld certain

contract terms because they “could lead to the identity of”

individuals or companies involved in its pentobarbital supply,

and, second, claimed that the information “described above”—

that is, the potentially identifying information—“is

confidential” because the pentobarbital contractors “have

typically kept it private, have specifically designated the

information as proprietary and/or confidential,” and have asked

the government to maintain the same confidentiality “to the

greatest extent possible under the law.” Christenson Decl.

¶¶ 48, 51 (J.A. 111, 112). In other words, the Bureau did not

seek to show the confidentiality of the contract terms as such;

it predicated its claim of confidentiality wholly on their

potential to identify the contractors.

Again, CREW’s claim regarding the contract terms is

circumscribed. CREW does not dispute that the contractors

23

“customarily and actually” keep identifying information

private, as Argus Leader held is required for Exemption 4. 139

S. Ct. at 2366. CREW instead argues that the Bureau’s theory

places contract terms “logically within the domain” of

Exemption 4 only to the extent they could reveal the

contractors’ identities. Campbell, 164 F.3d at 30 (quoting

King, 830 F.2d at 217). In other words, CREW accepts that

any contract terms that are identifying are “confidential” under

the Bureau’s claim of exemption. Indeed, CREW already

conceded before the district court that some contract terms,

such as company logos and company brochures, could plainly

identify the contractors and are therefore “confidential” under

the Bureau’s theory. See Christenson Decl. ¶ 48 (J.A. 111-12).

But as to contract terms that are not identifying—whether in

isolation or in combination with other terms—the Bureau has

offered no other reason to believe they fall within the

exemption. On appeal, CREW thus asserts entitlement only to

those contract terms for which the Bureau has not provided

“detailed and specific information” showing that they are in

fact identifying. Campbell, 164 F.3d at 30.

The district court concluded that the Bureau need not

explain how any contract term is identifying, because under

Exemption 4, “[c]ompanies need not justify why they keep

information confidential.” Citizens for Resp. & Ethics in Wash.

v. U.S. Dep’t of Just., 567 F. Supp. 3d 204, 214 (D.D.C. 2021).

The Bureau makes a similar argument on appeal. It is true that,

in general, the government needs to show that information is

“customarily and actually treated as private by its owner,” not

necessarily why it is so treated. Argus Leader, 139 S. Ct. at

2366. But that sidesteps the crux of CREW’s argument. The

issue is not why any particular information is confidential, but

rather, whether it is confidential given the Bureau’s declarants’

only claim: that the contractors keep identifying information

private.

24

It is well established under our precedent that “[t]o justify

summary judgment, a declaration must provide detailed and

specific information demonstrating ‘that material withheld is

logically within the domain of the exemption claimed.’”

Campbell, 164 F.3d at 30 (quoting King, 830 F.2d at 217).

Here, the withheld contract terms are logically within the

domain of the Bureau’s Exemption 4 claim only to the extent

they constitute “information that could lead to the identity of”

individuals or companies in the Bureau’s pentobarbital supply

chain. Christenson Decl. ¶ 48 (J.A. 111). Because the Bureau

chose to structure its exemption claim in two steps—that is,

asserting first that the contractors keep identifying information

private and second that the contract terms are identifying—

particular contract terms are appropriately withheld under

Exemption 4 only to the extent both steps have been

demonstrated to the district court’s satisfaction.

Therefore, to meet its burden to justify withholding, the

Bureau must persuade the district court to hold that “detailed

and specific information” demonstrates that the contract terms

could in fact reveal the identities of the Bureau’s pentobarbital

contractors. Campbell, 164 F.3d at 30. It cannot rely on

“conclusory,” “vague,” or “sweeping” assertions as to their

identifying power. Id. (quoting Hayden v. Nat’l Sec. Agency,

608 F.2d 1381, 1387 (D.C. Cir. 1979)).

Because the district court did not require the Bureau to

explain how the contract terms are identifying, we reverse and

remand for further proceedings consistent with this opinion.

On remand, the district court should determine whether the

Bureau has carried its burden of demonstrating that the

withheld contract terms are in fact identifying. Should the

district court conclude that any identifying information is

appropriately withheld under Exemption 4, it should also make

an express finding as to whether portions of the withheld

25

documents are reasonably segregable. See Trans-Pac. Policing

Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1028 (D.C.

Cir. 1999).

II. Waiver

Finally, CREW contends that the Bureau waived the

application of Exemption 4 with respect to certain contract

terms that are already in the public domain. While preparing

its response to CREW’s opening brief, the Bureau discovered

that it had previously released some drug-concentration and

expiration-date information as part of the administrative record

in other litigation over its execution protocol. See Dkt. No.

39-1, In re Fed. Bureau of Prisons’ Execution Protocol Cases,

No. 1:19-mc-00145 (D.D.C. Nov. 13, 2019). The Bureau has

provided those already-disclosed records to CREW. But

CREW argues that the Bureau has waived its Exemption 4

withholdings as to the same information in other documents.

CREW’s claim to additional records containing drug-

concentration and expiration-date information rests on our

public-domain doctrine. Under that doctrine, “materials

normally immunized from disclosure under FOIA lose their

protective cloak once disclosed and preserved in a permanent

public record.” Cottone v. Reno, 193 F.3d 550, 554 (D.C. Cir.

1999); see also CNA Fin. Corp. v. Donovan, 830 F.2d 1132,

1154 (D.C. Cir. 1987). The doctrine flows from “‘the logic of

FOIA’” because “where information requested ‘is truly public,

then enforcement of an exemption cannot fulfill its purposes.’”

Cottone, 193 F.3d at 554 (quoting Niagara Mohawk Power

Corp. v. U.S. Dep’t of Energy, 169 F.3d 16, 19 (D.C. Cir.

1999)). We have thus applied the public-domain doctrine

across a range of FOIA exemptions to require disclosure of

information already in the public domain even if it otherwise

would have been exempt. See id.

26

As the party advocating disclosure, CREW bears the

burden of production and must “point[] to specific information

in the public domain that appears to duplicate that being

withheld.” Afshar v. Dep’t of State, 702 F.2d 1125, 1130 (D.C.

Cir. 1983). “Prior disclosure of similar information does not

suffice; instead, the specific information sought by the plaintiff

must already be in the public domain by official disclosure.”

Wolf v. CIA, 473 F.3d 370, 378 (D.C. Cir. 2007).

On appeal, we cannot determine on the existing record

whether the Bureau waived Exemption 4 with respect to certain

expiration-date and drug-concentration information. We

would need to know, for instance, what specific expiration

dates and drug concentrations have been publicly released and

whether records containing those very same dates and

concentrations are still being withheld because they include

that information. See id. Those factual inquiries are the

“province of the district court,” Powell v. U.S. Bureau of

Prisons, 927 F.2d 1239, 1243 & n.7 (D.C. Cir. 1991), but that

court has not yet weighed in because the earlier disclosure was

discovered for the first time on appeal.

A remand “best serve[s] the interests of justice and

fairness.” Powell, 927 F.2d at 1243-44; see 28 U.S.C. § 2106.

The Bureau’s earlier release of records containing drug

concentrations and expiration dates “go[es] to the heart” of

what the Bureau may still withhold under Exemption 4,

including whether those contract terms are in fact identifying.

Powell, 927 F.2d at 1243 (alteration in original) (quoting In re

AOV Indus., Inc., 797 F.2d 1004, 1013 (D.C. Cir. 1986)); see

also, e.g., New York Times Co. v. U.S. Dep’t of Just., 756 F.3d

100, 110 & n.8 (2d Cir.), amended on denial of reh’g, 758 F.3d

436 (2d Cir.), supplemented on denial of reh’g, 762 F.3d 233

(2d Cir. 2014). Were the court not to consider that earlier

release, CREW might be unfairly deprived of records to which

27

it is entitled. We thus remand to the district court to determine

in the first instance whether and to what extent any information

in the public domain is the basis on which the government

seeks to withhold any records or reasonably segregable

portions thereof under Exemption 4.

* * *

For the foregoing reasons, we reverse the district court’s

decision granting the Bureau’s motion for summary judgment

and remand for further proceedings consistent with this

opinion.

So ordered.

SENTELLE, Senior Circuit Judge, concurring in the

judgment: I join the disposition ordered by the majority, that

is to say, reversing and remanding for further proceedings. As

we have noted in the past, “[t]he vast majority of FOIA cases

can be resolved on summary judgment.” Evans v. Fed. Bureau

of Prisons, 951 F.3d 578, 584 (D.C. Cir. 2020) (quoting

Brayton v. Off. of the U.S. Trade Representative, 641 F.3d 521,

527 (D.C. Cir. 2011)). But this does not mean that summary

judgment is always appropriate. Rule 56 applies where there

is “no genuine dispute as to any material fact.” Fed. R. Civ. P.

56(a). In this case, it appears that further factual development

is necessary, if perhaps not a full-blown trial.

I am not, however, in full concurrence with the majority’s

opinion regarding the commercial nature of the companies’

names. In many instances, the correct answer to a question can

vary depending upon how the question is phrased. I understand

the majority’s reluctance to find that a company’s name fits

within the exemption for confidential and commercial

information. After all, companies advertise under their names.

Nonetheless, the relevant question can also be rephrased as

“Can the identity of a party to a contract be commercial

information?” And the answer to this question may be a

different one; the companies’ contractual obligation to provide

the Bureau of Prisons with lethal injection drugs “pertains to

the exchange of goods . . . or the making of a profit.” Maj. Op.

at 10; see CREW Opening Br. at 18 (“[I]nformation is itself

commercial if it is connected with the exchange of goods.”). It

appears that the companies in this case quite reasonably wish

to protect their contractual arrangements by maintaining the

confidentiality of their identities as suppliers of lethal injection

drugs. As the evidence shows, previous supplying entities

were subjected to protests, suffered economic disadvantage,

and withdrew from the market once identified as such

suppliers.

2

Therefore, while I agree with reversing and remanding, I

would also hope that full examination of the evidence with

respect to this claimed exemption would be undertaken on

remand.