FOIA Disclosure of Federal Compliance Documents?

Abena Mainoo, Elizabeth (Lisa) Vicens, and Jonathan S. Kolodner are partners at Cleary Gottlieb Steen & Hamilton LLP. This post is based on a Cleary memorandum by Ms. Mainoo, Ms. Vicens, Mr. Kolodner, and Charity E. Lee.

On June 13, 2018, in its latest decision in a long-running litigation, the U.S. District Court for the District of Columbia considered the applicability of certain exemptions under the Freedom of Information Act (“FOIA”) to documents sought by journalists relating to the actions of the independent compliance monitor that Siemens AG was required to retain under the terms of its 2008 plea agreement for violations of the Foreign Corrupt Practices Act (the “FCPA”). Broadly speaking, although the court concluded that portions of the documents that related to Siemens’ business operations and the DOJ’s analysis of the monitor’s activities were exempted from disclosure, the court also required the DOJ to produce other portions of those materials and to reevaluate, based on the court’s decision, whether additional materials had to be disclosed. The decision, and the lengthy litigation over the application of FOIA to these materials, highlight the complexity of identifying the boundaries of the FOIA protection applicable to the typically sensitive and confidential information companies provide to compliance monitors and the risk that such information later will have to be disclosed once it is in the hands of the government.

Background

In 2008, Siemens pled guilty to criminal violations of the FCPA’s internal controls and books and records provisions and agreed to pay a then record-setting $450 million fine to the DOJ. As part of its plea agreement, Siemens was required to retain an independent compliance monitor (the “Monitor”) for a term of four years to ensure that it implemented an effective system of corporate governance and complied with all applicable anti-corruption laws and regulations. Siemens thereafter hired Dr. Theodore Waigel to serve as the Monitor, and, in that capacity, he reviewed Siemens’ compliance program, advised Siemens on enhancements to that program, and reported to the DOJ on Siemens’ compliance with the terms of the plea agreement, including by submitting work plans, monitorship reports, and certifications attesting to Siemens’ compliance to the DOJ.

Five years after Siemens entered into the plea agreement, in 2013, the nonprofit investigative news organization 100Reporters LLC submitted a FOIA request seeking records relating to the Siemens monitorship. 100Reporters filed a lawsuit in July 2014, in the District of Columbia, seeking to compel the DOJ’s production of documents responsive to its request. In response, the DOJ provided some information but redacted or withheld certain documents pursuant to FOIA exemptions relating to confidential commercial information, the attorney work product privilege, the deliberative process privilege, and privacy. The documents withheld or redacted by the DOJ included: (1) the Monitor’s work plans and related documents; (2) the Monitor’s annual reports and exhibits; (3) the Monitor’s presentations to the DOJ and the SEC; (4) emails and other correspondence between the Monitor, the Monitor’s counsel, the Siemens board of directors, the DOJ, and the SEC; and (5) Siemens’ compliance policies, descriptions of its compliance programs, and compliance training materials.

In 2016, the DOJ (along with Siemens and the Monitor) and 100Reporters filed cross‑motions for summary judgment relating to the DOJ’s withholdings and redactions. The court granted summary judgment to the DOJ with respect to information it withheld under the confidential commercial information exemption and the attorney work product privilege, but denied the DOJ’s motion with respect to the other exemptions. The court directed the DOJ to provide additional support for the deliberative process privilege exemption and to submit a representative sample of documents for in camera review.

The District Court’s Ruling

Following the court’s in camera review, the court held that the DOJ had properly withheld certain information pursuant to the confidential commercial information, deliberative process privilege, and privacy exemptions, but that it had applied those exemptions too broadly.

The court ordered the DOJ to reexamine its withholdings and redactions based on the guidance provided in the court’s decision, as follows.

The Confidential Commercial Information Exemption: As the court explained, the confidential commercial information exemption protects “trade secrets and commercial or financial information obtained from a person that are privileged or confidential.” As discussed above, the court had initially accepted the DOJ’s rationale for withholding documents under the confidential commercial information exemption. After conducting the in camera review, however, the court found that the DOJ had improperly applied this exemption to withhold certain documents that were mainly “general descriptions of the Monitor’s past and future activities.” The court found that the DOJ properly redacted, as confidential, information relating to Siemens’ specific compliance initiatives and business decisions, and that it could, as a general matter, withhold under the exemption information about “basic commercial operations that relate to the income‑producing aspects of Siemens’ business.”

Deliberative Process Privilege: The deliberative process privilege exempts inter- and intra-agency documents from disclosure in order to protect open and frank discussions about agency decisions. For the privilege to apply, first, an agency must sufficiently identify the deliberative process involved, the role played by the withheld documents in that process, and the decision-making authority vested in the documents’ authors and recipients. Second, an agency must establish that the withheld information was both created before an agency policy or decision was adopted and reflected the “give and take of the deliberative process.”

As to the first part of the analysis, the court had previously held that the DOJ could not rely on a “too nebulous” description of its deliberative process—i.e., whether Siemens satisfied its obligations under the plea agreement—because such a vague description would “create a four-year umbrella effectively shielding all agency action from review.” But in its recent ruling, the court accepted the DOJ’s revised description of two deliberative processes, specifically, documents reflecting the DOJ’s analysis of (1) whether Siemens had breached the plea agreement, including whether Siemens had committed any new crimes, continued to assist the DOJ with its investigation and cooperated with the Monitor; and (2) whether the Monitor was fulfilling his mandate, including whether the monitorship should be extended beyond its four-year term or terminated. The court determined that the DOJ described the relevance of the withheld documents to these points and that the DOJ’s primary decision-makers explained their reliance on the documents when making decisions. The court also concluded that the other parts of the test were satisfied, including that the monitorship team who prepared the documents advised recipients with decision-making authority.

With respect to the second part of the analysis, the court found that the Monitor’s yearly reports; draft work plans; presentations to the DOJ and the SEC; and emails and other correspondence among the Monitor, the Monitor’s counsel, and the DOJ and the SEC were properly withheld under the deliberative process exemption. The court concluded that those documents were created before the DOJ made its decisions about whether Siemens was in compliance with the plea agreement and whether the Monitor was fulfilling his mandate, and played a key role in the DOJ’s decision-making. The court found, however, that sections of the Monitor’s yearly reports that summarize industry best practices and guidance from FCPA decisions involving different companies did not qualify for the exemption because they related to past agency decisions and were unrelated to Siemens. The court also found that the Monitor’s final work plans did not qualify for the exemption because they reflected the DOJ’s final decisions about the Monitor’s discharge of his mandate and were too attenuated from the DOJ’s assessment of Siemens’ compliance with the plea agreement. The court held, in addition, that the exhibits to the Monitor’s reports, which included Siemens’ compliance policies and training materials, could not be withheld under the deliberative process privilege exemption, as they merely relayed facts (although they might still qualify for protection under the confidential commercial information exemption).

Exemptions Relating to Privacy Interests: Finally, the court held that the DOJ could not redact the personal information of Siemens’ executives or the monitorship team to protect their privacy. The court determined that these individuals had a de minimis privacy interest because the DOJ had failed to establish the harm that would result from disclosure of their personal information. The court also explained that the DOJ had already disclosed the personal information of individuals similarly-situated to the monitorship team and that personal information about the involvement of the Siemens executives in the monitorship was already public. Moreover, the public had a countervailing interest in knowing (1) the seniority and experience of the team monitoring Siemens’ compliance, in order to evaluate how seriously the DOJ was taking its responsibility to ensure Siemens’ compliance with the plea agreement, and (2) how the DOJ interacted with Siemens’ key decision-makers. The court found, on the other hand, that the DOJ could redact the personal information of Siemens’ non‑executive employees and other third parties because they faced possible harassment and retaliation for providing the Monitor with information about the company. The court concluded that their substantial privacy interest in nondisclosure of their personal information was not outweighed by the public’s interest.

Takeaways

Compliance monitorships are often a key component in resolutions of FCPA violations with the DOJ and the SEC. Even outside of the FCPA context, however, companies may be required to obtain monitors in cases involving allegations of fraud or sanctions violations. And, even if there is no requirement to retain a monitor, companies may be required to provide the DOJ and other agencies with reports describing and assessing their own work to remediate and enhance their compliance programs and internal controls. As part of their responsibilities, obviously, monitors are provided access to sensitive business information; even policies and procedures, as well as training materials, may contain confidential information that a company would rather not have disclosed to the public. This disclosure could also have an impact on pending or incipient civil litigation by providing plaintiffs’ attorneys a window into the compliance shortcomings of the target of a lawsuit.

As a result, and as the court acknowledged in its decision, the prospect of public disclosure of information relating to a monitorship could have a chilling effect on a company’s candor with its monitor. Here, the court was sensitive to these concerns and took great pains to distinguish between the information that the DOJ appropriately withheld and the information that did not qualify for the particular FOIA exemptions the DOJ invoked. The court largely protected from disclosure information relating to Siemens’ business operations and the Monitor’s reports to the DOJ. That said, as reflected in the decision, not everything relating to the operations of a monitorship (or compliance remediation work that is described to the government) may be protected. The scope and even the specifics (to a certain extent) of that remediation work, in the form of a monitor’s work plan, for example, may not be considered protected. Likewise, company policies and training materials may only be protected to the extent that they are deemed to have confidential commercial information—even if they are otherwise sensitive.

Significantly, each of these FOIA exemption determinations is, as the court acknowledged, a fact-based determination, and there is risk a court, in making that determination, would take a broad view of what is disclosable under FOIA. Certainly the court in this case left open the door for the production of a range of potentially sensitive (if not quite confidential) materials. Thus, it still remains to be seen to what extent the court’s ruling here will encourage others to seek information relating to a company’s FCPA monitorship from government agencies, and how those agencies and the courts will respond. If this case is any indication, however, that process can stretch on for a long time, which, at the end of the day, may limit the sensitivity of the materials if they are ultimately disclosed.

The complete publication, including footnotes, is available here.

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