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Case number 21, Judge 5276, Citizens for Responsibility and Ethics in Washington at Ballant versus United States Department of Justice.

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Ms.

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Lukenhouse for the at Ballant, Ms.

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Mundell for the Epoly.

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Good morning, Ms.

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Lukenhouse.

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Good morning.

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May it please the court, Jessica Lukenhouse, on behalf of Appellant Citizens for Responsibility and Ethics in Washington.

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In this case,

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The Bureau of Prisons adopts an interpretation of FOIA Extension IV that transforms strong public interest into a basis for withholding information rather than disclosure.

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Such a result turns FOIA's pro-transparency purpose to its head.

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In granting summary judgment for the Bureau, the District Court erred in two ways.

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First, the identities of the bureaus

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Tendo Barbatol contractors are not commercial information.

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Because the term commercial modifies the term information in Exemption 4, the information must itself be commercial to fall within the exemption.

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But the Bureau instead relies solely on the attenuated downstream consequences of disclosure arising from fears of negative publicity.

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Second, the information has to do with the parties to a contract.

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Does it?

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That's right.

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Your honor.

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This doesn't sound pretty commercial.

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Entering commerce and entering contracts are in commerce.

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It didn't information related to the contracting merchant.

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What's the information being held?

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The name itself reveals

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is simply in that case that this company or companies are a government contractor, something that is true of every government contractor.

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Something that is presumptively public and again would be true of every government contractor.

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Suppose we were to accept that a business's name

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may sometimes be commercial, but sometimes not.

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What's the line that you're relying on here to distinguish when the business name, let's say in the context of contracting with the government, when is it commercial, when is it not?

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Two responses, Your Honor.

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The first is that we need to look at the information itself, not

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solely at the consequences of disclosure.

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And that's all we have in this case from the Bureau.

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Right, so I understand that you're arguing that there are two steps and that under Baker and Hostetler, we at least have to determine whether the information is in and of itself commercial before we look also at the downstream consequences.

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What I'm asking is really focusing on that first aspect.

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Judge Sintel has posited, well,

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If it's a party to a contract, why isn't that commercial?

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You say, no, that's not enough.

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And I'm saying, well, what is the inquiry that you're proposing that we make in determining whether that information is in and of itself commercial?

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When looking at whether the information is itself commercial in the activity context, one, we want to see if the information reveals something else, not just the existence of

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business or linking the business to its known business operations, but that it reveals something else about the business.

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And the epic case relied upon by the district court is a good example of this, where in that case, the identities of the participants in the government cyber security program, according to declarations submitted by the government served as an admission of cyber vulnerability.

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So that revealed something about the business

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and it's operations, it's how it responds to or vulnerabilities to cyber attacks.

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That is something more than just the name of the business or the fact that it does.

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Does that not suggest that the inquiries here, I would suggest both commercial and confidentiality are a case specific rather than a generic or a matter of law kind of thing that sometimes

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the name revelation of the company name can be a commercial and be a rightly confidential matter.

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That's right, your honor.

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This is can be a case by case determine what we're trying to get at.

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I think is what would you say would be enough in this case if it isn't enough to have downstream consequence?

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In this case, the primary problem is that the Bureau relies only

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these attenuated downstream consequences coming from reputation.

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There was nothing from the bureau about how those consequences are about the nature or function of the information itself.

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The only evidence offered by the bureau was related to these consequences.

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And we think according to the plain text of exemption four, you cannot only rely

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on consequences themselves to transform non-commercial information into commercial information.

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Will you all, as crew, define information connected with the exchange of goods?

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So do we need to, one, provide me an example of what you mean by that, because again, these questions are going to, well, what is your definition of commercial?

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And then secondly, do we have to accept your definition in order to,

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award to you because the underlying district court opinion used dictionary definitions, et cetera.

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We take the second question first, because no, I don't think you do have to accept our definition of commercial.

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It's enough in this case that the Bureau didn't undertake the correct inquiry, that the Bureau never looked at the information itself, but only these attenuated downstream consequences.

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With respect to the meaning of commercial, dictionary definitions have said related to commerce exchange of goods that is in some ways circular.

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And this court has provided guidance about what that means.

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For one, that we look at the information itself and its nature or function.

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But also, there's a core set of information that the court has repeatedly recognized to be commercial.

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fail statistics, profits and loss, things that relate to the business's everyday operation.

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And here we don't have any indication, and from the Bureau summary judgment as to what the nature or function of this information, the names of contractors would be.

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All we have are these downstream.

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But would that be a reason to remain in that regard so that we got more qualifying information about

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What was actually confidential out of that huge list?

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I mean, the district court only seemed to list a few things, but I'm not sure that the record is necessarily complete about what qualifies as confidential.

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The Bureau had its chance at summary judgment.

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The parties did move for summary judgment and the Bureau had an opportunity to submit declarations and briefing.

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We think it would be a waste of

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judicial resources not efficient to go back to the district court and give them another bite.

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If we are determining whether this is efficient evidentiary record, would it not be a good idea to look at the purpose of the statute that is for the purpose of the statutory exemption?

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That would be a good place to start, Your Honor.

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Yes.

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Right.

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Does it not appear that the purpose of that is to

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meet the situation in which the government has someone has had to give up information to the government to deal with the government.

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And that release of that information could be harmful to the non governmental entity in its commercial life.

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That not the reason that we have the exemption in the first place.

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The purpose of FOIA, as you know, is to open up about the purpose of this particular exemption.

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to the agencies.

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We'll get a purpose for you in a moment, but let's go on the exemption.

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And in this case, it points you to the difference between exemption four and exemption six and seven, where in exemption four, Congress has decided to protect from disclosure, commercial information, but not any information, the disclosure of which would lead to any type of business constant.

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Why did you think Congress wanted to protect that information then?

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what is the purpose in protecting it, unless it is to protect the information supplying entity or person from adverse consequences as a result of the disclosure.

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It is to protect the company's confidential commercial information, but because exemption six and exemption seven are written to specifically take account.

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Let's look at exemption four for a moment.

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Let's just look at exemption four.

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Why isn't this within that purpose

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that you admit is the congressional purpose.

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That's one reason I think why we look at, do not look at the downstream attenuated consequences.

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Here, you know, the purpose of FOIA is to open the government to agency action and in cases where... The purpose of FOIA we've said lots of times is so that people can see what the government is up to.

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In this case, you're trying to use it

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to see what somebody other than the government, the contracting party.

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This really isn't inconsistent with the purpose for you, is it?

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Respectfully, Your Honor, we are trying to see what the government is up to.

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The revelation of the identity can help through and other organizations can help the public determine whether the government has contracted with a reputable supplier.

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which is poor to what the government is up to and that there are reputational concerns does not change our view of the analysis because FOIA is most important in cases in which the programs at issue are unpopular.

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Popular programs, the government,

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is willing to share that information, but for unpopular.

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No, no, no, no, no, no, no.

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The government is not always willing to share information about popular programs.

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The most often used exemptions are the criminal investigation and the national security, both of which are pretty popular most of the time.

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And yet, boy, you protect certain aspects of those.

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You can't say this is unpopularity matter.

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Doesn't want to reveal what's confidential.

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That's been important to force the government to reveal anything it doesn't want to reveal.

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But we think particularly important in this case, where the basis the government relies upon is public scrutiny that would follow the disclosure.

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Where, again, the purpose of FOIA is to create an informed public.

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And in this case, would make the informed public recognizable.

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Ms.

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Lupienhaus, you argued that if the Bureau is showing as inadequate, that there's no, it would be inappropriate to remand for it to supplement its justifications.

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And we do sometimes remand and allow the government under FOIA to supplement justifications.

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Do you have a good case for us, a circumstance in which we didn't remand because the government had already had a chance to offer its justification?

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I will answer your question.

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I'm just noticing my rebuttal time.

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We are not sticklers on time.

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If we have questions and are finding it useful, don't worry about it.

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I am aware that the court does often do that.

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Just recently in the OLC memo case that came out earlier, the court did decline to remand and give the government another opportunity to provide additional declarations and information.

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Remand is an option, but we think in this case, not a necessary one because the government had an opportunity.

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On understanding whether information is commercial or not, do we look at the ordinary

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operation of the business and how it treats this information generally?

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Or do we only look at this one contract?

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Or what's the frame factually for assessing whether the information is commercial or not?

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This is what would have been helpful to get from the Bureau, Your Honor, something about the help with the assessment of the nature or function.

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You could imagine

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different interests depending on what the business's operations are, how well known they are, how important the government is as a customer.

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But the Bureau didn't give us anything with which to base that assessment on because they looked only at these reputational downstream consequences.

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If I had a question, I know you conceded with respect to the business identity that it's confidential.

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So that's not an issue here.

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But I'm curious sort of when and why a business name might be confidential, just to understand your thinking about that as it, because it's one of the two aspects of the test.

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I mean, that, to me, the concession that it's confidential suggests that you are looking at this as contract specific.

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Because unless this is a, these are companies that have been created for this purpose, presumably they're companies that don't keep their business identity confidential in their other activities.

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So I'm just sort of struggling a little bit with what your concession on that might imply about the analysis of the commercial nature.

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It's true that we did not dispute the identity.

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And I think looking at the government's declarations on the identity point is,

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They did offer.

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You mean on the confidential.

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On the confidentiality point.

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They did offer evidence in particular that the contractors asked for the identifying information to be kept confidential and the Bureau made that assurance.

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So I think that that's an important thing considered in the confidential context.

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But we don't believe that that would govern in the partial context whenever if something is partial,

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Whenever the company wants to keep it private, that simply collapses the commercial and the confidential inquiries.

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You indicated a public domain doctrine, but you did so in your reply brief.

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Is that something that we should be considering then?

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We raised the reply because we only learned about the disclosure from the government's opposition brief or during the appellate briefing in this case.

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We do think that to the extent that the Bureau

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has publicly disclosed these particular types of information, the substance concentrations and the expiration dates publicly before.

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We know from the government's bond index that it continues to withhold that same type of information in other documents.

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The belief reversal is appropriate as to those particular records to release that information that was already released publicly.

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On the contract terms, which we haven't yet talked about this morning, there you make the opposite concession.

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You can see that they're commercial, but argue that they are not confidential.

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And the government makes a somewhat novel argument there instead of

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directly showing that these are terms that are customarily and actually kept private.

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Instead, the government adopts what I'll call a two-step approach.

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It says that the contractors customarily and actually keep identifying information private and that the withheld information is in fact identifying.

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And as I read your brief, you're not challenging whether the Bureau can adopt that two-step approach, whether that's

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sort of an adequate stand-in for the confidentiality test.

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You're only really saying that if it adopts that approach, it has to justify both steps.

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All right.

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We will give you a little bit of time.

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Good morning, Ms.

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Mundell.

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Good morning, Your Honors.

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May it please the Court?

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Amanda Mundell on behalf of the Department.

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I want to start by clarifying two important aspects of the tests that apply to these categories of information.

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So the first category that the Court was discussing with counsel was the names of these entities, the names of the companies, and why that information is commercial information.

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Now, the test that CRU has advocated for is a test that asks the Court to look at whether this information is, in and of itself, commercial,

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But I want to make clear that from this court's case law, the sentence doesn't end there.

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It's in and of itself commercial in nature or in function.

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And this court has clarified what it means to be commercial in nature or commercial in function.

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The court has explained that commercial in nature means connected to a commercial enterprise.

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And of course, the names of these entities are not being disclosed in a vacuum.

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Disclosing the names says something about their business operations, their commercial enterprise.

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And the other aspect of the test, whether it's commercial in function, this course explains, turns on whether there's a commercial interest at stake in the information's disclosure.

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And that's where the commercial consequences really come into play.

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Because to assess whether a company has a commercial interest at stake disclosing the document,

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We look at what happens when the documents are disclosed.

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But I think you're referring to language from the Home Builders case, which sort of parses the in nature and in function.

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And in talking about the function there, and that was the owl citing information, it said that there was no evidence that the parties who provided the owl citing information have a commercial interest at stake.

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And I think the difficulty for your position is

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is that it seems very broad that any risk of embarrassment for a company or any reputational exposure would become commercial.

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And that seems boundless.

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And it does seem somewhat intention with the disclosure notion of FOIA.

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And so I just wonder if you can give us some limiting principle

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if we were to accept your assertion that information is in and of itself commercial, it could embarrass the company.

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Absolutely, Your Honor.

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And I want to be clear, the consequences that issue here are not just reputational harm,

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and they're not attenuated as Peru has suggested.

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In fact, as our declarations explain, I think we'll find that at JA 112 to 115, and again at 134 to 35, we don't have to imagine what commercial consequences happen when the identities of these companies become public.

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Time and again, the moment the identities of these suppliers, for instance, a Texas supplier or others becomes public, that supplier withdraws from the market altogether.

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But that's a different question, whether the supplier says,

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from a public relations perspective, this is not a message that I want to associate myself with.

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We don't actually know whether, had they stuck it out, those companies would have suffered any loss of custom.

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All right.

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I think the number one, I think the loss here is that

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they cease selling these drugs to the state or federal governments.

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And that, that isn't demonstrable loss in their profits.

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It's money that they're not taking.

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But number two, some of those examples do identify commercial losses associated with boycotting or negative press.

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And one of those would be lawsuits.

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First lawsuits are expensive.

[00:21:49] Speaker 03:
So I don't think that this is, you know- What if the facts showed that their pulling out of that contract led to congratulatory uptick in,

[00:21:59] Speaker 03:
you know, the pat on the back kind of additional business, still commercial?

[00:22:05] Speaker 04:
Your honor, again, I don't think it's just negative commercial consequences that matter here.

[00:22:09] Speaker 04:
It's any time someone has a commercial stake in the information or commercial consequences.

[00:22:13] Speaker 04:
Of course, we know that there's no positive commercial consequences associated with these identities being revealed.

[00:22:20] Speaker 03:
Do we have any case where the disclosure risks positive commercial consequences?

[00:22:24] Speaker 04:
I'm not aware, Your Honor, because I doubt that these companies would assert confidentiality over that sort of information.

[00:22:29] Speaker 03:
They haven't asserted confidentiality.

[00:22:31] Speaker 03:
Here's the government.

[00:22:32] Speaker 03:
There are cases in which the businesses have submitted declarations, but this is not such a case.

[00:22:39] Speaker 04:
Well, Your Honor, the businesses haven't submitted declarations because to do so would

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obviously identify them.

[00:22:45] Speaker 03:
But I haven't sought to do it synonymously.

[00:22:48] Speaker 04:
No, they have not, your honor.

[00:22:49] Speaker 04:
But based on the declaration, the declaration asserts that these businesses keep this information confidential.

[00:22:55] Speaker 03:
It's not only in the context of this contract.

[00:22:59] Speaker 03:
The same question for you as I had for Ms.

[00:23:01] Speaker 03:
Luchenhaus, which is, do we only look at the universe of this contract?

[00:23:05] Speaker 03:
Or do we look at whether these are secret companies generally?

[00:23:09] Speaker 04:
Your honor, I think that gets into the confidentiality prong.

[00:23:11] Speaker 04:
I think Argus leader helps us answer that question.

[00:23:14] Speaker 04:
So under Argus leader, the question of letter information is confidential, whether the owner customarily and actually treats it as private.

[00:23:23] Speaker 04:
There really aren't any other instances.

[00:23:24] Speaker 03:
Confidentiality is conceded on the identity point, but the commercial nature of the information generally, how do we assess that more broadly or just in the context of this?

[00:23:39] Speaker 04:
I think it's a case-by-case basis and here The the declarations established that this information is commercial either because it reveals a business relationship These companies are suppliers of Pentel orbital or because of the commercial function and the consequences that we've discussed I want to turn to the other but to the declarations address each of the discrete

[00:24:02] Speaker 01:
contractual information in terms of being confidential.

[00:24:05] Speaker 04:
Yes, Your Honor.

[00:24:06] Speaker 04:
So that turns to the second point, this confidentiality aspect.

[00:24:09] Speaker 04:
I want to start by clarifying the test or at least clarifying what the government has, you know, the representations we've made in our brief, because I don't know if it was totally clear at the first phase of this argument.

[00:24:20] Speaker 04:
But unlike Cruz assertions, we don't think there needs to be a showing that the company

[00:24:26] Speaker 04:
protects this information because it's identifying.

[00:24:30] Speaker 04:
Under Argus Leader, what matters is whether the company customarily and actually treats the information as private, full stop.

[00:24:37] Speaker 04:
And as the declaration is explained at JA 112, this information is customarily and actually treated as private.

[00:24:45] Speaker 04:
All of the information that crew has sought.

[00:24:47] Speaker 04:
Now we also took the second step, Judge Childs, and explained how this information could be identifying

[00:24:53] Speaker 04:
For instance, we gave examples about quantity and dates of purchase being compared to DEA reporting logs or DEA databases at JA 134 to 135.

[00:25:02] Speaker 04:
And how other contract terms could be pieced together with other bits of information to paint a picture of who these companies and suppliers are.

[00:25:10] Speaker 01:
But you're also being accused of having provided this information in other settings.

[00:25:14] Speaker 04:
I'm sorry, say that again.

[00:25:15] Speaker 01:
You're also being accused of having provided this information in other settings.

[00:25:19] Speaker 04:
So, and I think your honor is referring to the administrative record in the protocol litigation.

[00:25:24] Speaker 04:
So in that instance, this is a very particular case where the judge had ordered us to file the administrative record on the public docket.

[00:25:32] Speaker 04:
And a question arose in the case whether the Pental Arbitral to be used in the executions was expired.

[00:25:39] Speaker 04:
We put in lab reports that had redacted

[00:25:42] Speaker 04:
identifying information about employees and laboratories, but that revealed that the drugs were in fact not expired.

[00:25:48] Speaker 04:
And in hindsight, we should have sought a protective order because it was going to be on the public docket.

[00:25:53] Speaker 04:
But as the court may recall, this was extremely fast-paced litigation and very short turnarounds.

[00:26:00] Speaker 04:
And we saw exactly what the consequences were from putting that information on the public docket without fully redacting all of the categories like expiration dates and concentrations.

[00:26:09] Speaker 04:
Reuters put out an article that purported to identify the very laboratory that had created that report.

[00:26:14] Speaker 04:
And so that's why this information, even if we think we have to look at whether it's identifying, that's how we know that pieces of information that might on their surface not appear identifying can be pieced together with other sources of information to narrow down the scope for these suppliers.

[00:26:29] Speaker 03:
We don't actually know if that's the methodology Reuters article relied on.

[00:26:34] Speaker 03:
And you don't make

[00:26:37] Speaker 03:
an argument about the potentially identifying aspect of many of the kinds of information thought here.

[00:26:47] Speaker 03:
I think with drug prices, with dates, with substance descriptions, drug quantity, drug concentration, I don't see anything in the declaration addressing lot numbers, container units,

[00:27:01] Speaker 04:
Your honor, so some of those, I think the declaration does go into some specifics at J 134.

[00:27:06] Speaker 04:
For instance, the declaration says that a particular company is known to.

[00:27:11] Speaker 04:
price a substance in a particular way or test a product in a particular way, the manner in which it's described could be used to trace that substance to the particular provider.

[00:27:19] Speaker 04:
It's true that we don't go one by one to every single category and give an example of how that traces back, in part because it can be difficult in a vacuum to make that determination, but also because it's not up to the government to give the public a clear, you know, connecting the dots between information that we think is confidential commercial information protected under exemption four.

[00:27:40] Speaker 04:
But even if this court thinks that some of that information is not on its face identifying in a vacuum, I think this court is on solid ground in looking at how bits and pieces of that information, if it were to become public, would be pieced together with other information to then identify the companies.

[00:28:00] Speaker 03:
I think it's hard for you that you do appear to be relying exclusively on downstream consequences of disclosure.

[00:28:08] Speaker 04:
Am I wrong about that?

[00:28:10] Speaker 04:
And I think there are consequences, but I don't know that they're really that downstream.

[00:28:15] Speaker 04:
Right.

[00:28:15] Speaker 04:
So the commercial consequences of disclosure.

[00:28:18] Speaker 04:
That's part of it, Your Honor.

[00:28:19] Speaker 04:
But going back to this commercial and nature test, that just looks at whether the information reveals that there's some connection to a commercial enterprise.

[00:28:29] Speaker 03:
That is so broad.

[00:28:30] Speaker 03:
The notion that anything connected to a commercial enterprise is, I mean, so much of it.

[00:28:35] Speaker 03:
When we look at the exemption,

[00:28:38] Speaker 03:
The first element is trade secrets, and then there's commercial and financial information.

[00:28:43] Speaker 03:
Don't we look at some likeness in the list and recognize that things that are similar to trade secrets, internal closely held value proposition information?

[00:28:55] Speaker 03:
How do we run our business?

[00:28:57] Speaker 03:
How do we make our product?

[00:28:59] Speaker 03:
What's our secret sauce?

[00:29:01] Speaker 03:
Not anything connected.

[00:29:03] Speaker 03:
Sure.

[00:29:04] Speaker 04:
I think those are very clear examples, but this court has embraced the reasoning of the Second Circuit's decision in American Airlines, which addressed employee authorization cards.

[00:29:13] Speaker 04:
And the court said that those were readily considered commercial because labor unions are related to commerce and deal with the commercial life of the country.

[00:29:20] Speaker 03:
So you would read this as broad as the Commerce Clause.

[00:29:23] Speaker 03:
You're reading commercial in that sense.

[00:29:24] Speaker 04:
Your Honor, I agree there is, there must be a limitation here.

[00:29:28] Speaker 04:
I think whatever that line is,

[00:29:30] Speaker 04:
We are clearly on the side of exemption for protections here because of how clear the consequences of disclosure are in terms of the effects on the commercial aspects of this business, but also what it says about their business.

[00:29:41] Speaker 03:
Why doesn't your test just allow the government and any business with whom it contracts to effectively contract around FOIA disclosure?

[00:29:51] Speaker 04:
Your Honor,

[00:29:52] Speaker 04:
Two responses to that.

[00:29:53] Speaker 04:
Number one, I would resist the notion that this is our test as opposed to just what this court has articulated.

[00:29:58] Speaker 03:
Well, it's a further development of the test.

[00:30:01] Speaker 03:
I mean, we've all read Baker and home builders and public citizen and Argus leader in all our cases.

[00:30:09] Speaker 04:
I think there are still meaningful limitations, Your Honor, and there are a few.

[00:30:13] Speaker 04:
Number one, confidentiality plays a meaningful limit here, and I don't think the government is in the business of just contracting with anybody and just shrouding the entire government operation in secrecy.

[00:30:24] Speaker 04:
That's not how it works.

[00:30:26] Speaker 04:
What's happening here is there is only

[00:30:28] Speaker 04:
you know, one or two or a handful of suppliers that will even do business with the government here in order to carry out the government's functions.

[00:30:34] Speaker 04:
And so it's a different universe from just going out and contracting with any old company, even if there are other options available, but even if confidentiality isn't enough of a limit.

[00:30:45] Speaker 03:
But this government's interest in having this job done doesn't render the identity of the contractor with whom it works commercial.

[00:30:52] Speaker 04:
Not at all your honor, but you're asking you what the meaningful limits are in terms of asserting this exemption.

[00:30:57] Speaker 04:
Yes, it's unlikely that this case is a repetitive case and you know crew references the epic litigation.

[00:31:04] Speaker 04:
That's really one of the first instances where the identities.

[00:31:07] Speaker 04:
of companies were at issue.

[00:31:09] Speaker 04:
And we haven't seen an uptick in companies refusing to do business with the government unless we promise to shroud their operations in confidentiality.

[00:31:16] Speaker 04:
But there's another important limitation, and that's that this court has held the government's feet to the fire to provide an adequate explanation in declarations to support their FOIA exemption assertions.

[00:31:27] Speaker 04:
And it has not been shy to say that what the government has shown is not enough.

[00:31:31] Speaker 04:
And we agree that it's not enough to make just a blanket statement, this is commercial and this is confidential.

[00:31:37] Speaker 04:
But we've made that showing.

[00:31:39] Speaker 04:
So that's another important limitation to ensure that exemption four doesn't become boundless.

[00:31:44] Speaker 04:
But just returning to sort of this public policy notion, because I know that Cruz articulated it, we understand that there's a public interest in disclosure and open government and transparency.

[00:31:54] Speaker 04:
But this court has already recognized that exemption four protects both the supplier of the information and their commercial interest, as well as the government as a recipient of that information.

[00:32:04] Speaker 04:
And to the extent that there is some balance between public interest accessing the information and protecting this kind of commercial information, Congress has struck that balance in exemption four.

[00:32:14] Speaker 04:
And this court need only to stick with its own cases in the language of exemption four to agree with the district court that this information, the names of the entities is commercial.

[00:32:23] Speaker 04:
And the other information, the contract terms are confidential.

[00:32:28] Speaker 04:
All right, unless there are other questions, we just ask that you affirm.

[00:32:31] Speaker 04:
Thank you, thank you.

[00:32:35] Speaker 03:
So did Ms.

[00:32:37] Speaker 03:
Lickenhouse have any additional time?

[00:32:39] Speaker 02:
We'll give you two minutes for rebuttal.

[00:32:46] Speaker 02:
Thank you, Your Honor.

[00:32:49] Speaker 05:
On the commercial prong, this court and public citizen has previously cautioned that not everything related to connected to a business is commercial, something narrower than that.

[00:33:03] Speaker 05:
The language in Norton about connection to a commercial enterprise is, as with disclosure, part of its analysis of the information itself.

[00:33:14] Speaker 05:
The government's reliance upon attenuated downstream consequences is clear from pointing to the possibility of lawsuits or other things arising from reputational concerns.

[00:33:29] Speaker 05:
That gets far afield from the information itself

[00:33:33] Speaker 05:
And the key inquiry of what is the information's nature or function.

[00:33:39] Speaker 03:
You say attenuated downstream consequences.

[00:33:42] Speaker 03:
What if we were to disagree with you that they were attenuated, but were in fact predictably quite immediate?

[00:33:50] Speaker 05:
For this purpose, this court has never held that consequences alone can transform non-commercial information into

[00:34:00] Speaker 05:
Commercial information, so the Bureau's reliance only on downstream consequences would be fatal in this case without reaching the attenuation point.

[00:34:12] Speaker 05:
But we do find that attenuated chain of causation is another reason why the consequences rely on the Bureau here are insufficient.

[00:34:24] Speaker 05:
On the confidential point, just to note that

[00:34:28] Speaker 05:
The Bureau admitted here that it does not go one by one through the various firms to describe how they are identifying, and that's fatal here because the identifying nature of the information is the only support that the government has offered to bolster the conclusory allegation that all withheld information is customarily and actually kept private.

[00:34:54] Speaker 05:
Because the Bureau stake its withholding on that basis, that's why it needs to provide this substantiation.

[00:35:01] Speaker 05:
Thank you.

[00:35:02] Speaker 05:
I'll take the case under advisement.