UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
______________________________ ) THE BOEING COMPANY, ) ) Plaintiff, ) v. ) ) Civil Action No. 05-365 (GK) U.S. DEPARTMENT OF THE ) AIR FORCE, ) ) Defendant. ) ______________________________)
MEMORANDUM OPINION
Plaintiff The Boeing Company (“Boeing”) brings this action
against Defendant United States Department of the Air Force Space
and Missile Systems Center (“Air Force”) pursuant to the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552, as amended by the Freedom
of Information Act of 1986 (“FIRA”), Pub.L. No. 99-570, § 1801-04,
100 Stat. 3207-48, 48-50; the Trade Secrets Act, 18 U.S.C. § 1905;
and the Administrative Procedure Act, 5 U.S.C. § 702.
The present matter is before the Court on Defendant’s Motion
for Summary Judgment [Dkt. No. 20], and Plaintiff’s Motion for
Summary Judgment [Dkt. No. 21].
Upon consideration of the Motions, Oppositions, the entire
record herein, and for the reasons set forth below, Defendant’s
Motion for Summary Judgment is granted, and Plaintiff’s Motion for
Summary Judgment is denied. I. Background1
The Global Positioning System (“GPS”) is a “space-based radio-
positioning system” that depends on a “24-satellite constellation
that provides navigation and timing information to military and
civilian users.” Pl.’s Mot. for Summ. J. at 1. It has become
increasingly widespread as a mapping tool in cars, cell phones, and
fitness monitors used by runners and cyclists.
The technology depends upon a network of satellites that are
updated and replaced over time. Id. at 2. There have been four
generations of satellites: Block I, Block II, Block IIA, and Block
IIR. Id.
After a competitive procurement in April 1996, the Air Force
awarded the production contract for the Block IIF “next generation”
satellites to Boeing. Id. The contract provided for Boeing to
build and launch six satellites and included options for twenty-
seven more. Id. In March 2000, the Air Force decided not to
exercise all twenty-seven options. It contracted with Boeing to
build the first twelve satellites and put the other fifteen
contracts out for competitive bidding. Id.
1 Unless otherwise noted, the facts set forth herein are undisputed. These facts are typically drawn primarily from the parties’ Statements of Undisputed Material Facts submitted pursuant to Local Civil Rule 7(h). However, in this case, only Defendant submitted a Statement of Undisputed Material Facts to accompany its Motion for Summary Judgment. Plaintiff responded to Defendant’s Statement [Dkt. No. 28], but submitted its Motion for Summary Judgment without including its own Statement of Material Facts.
2 On January 22, 2004, the Air Force received a FOIA request
from Federal Sources, Inc. Federal Sources is a fee-based
commercial service that submits FOIA requests on behalf of
companies or individuals. Boeing believes that the requestor is
Boeing’s major competitor, Lockheed Martin.
The request sought a copy of Air Force contract F4701-96-C-
0025, all modifications to that contract, and the Source Selection
Decision Document. The contract was awarded in 1996 and will
continue through 2012. Federal Sources subsequently agreed to
accept a conformed version of the contract in place of the original
contract and all modifications.2
Boeing was notified of this request by a letter from the Air
Force dated January 28, 2004. On March 31, 2004, Boeing responded
to the request for the Source Selection Decision Document. The
parties subsequently resolved their differences about this
document, so it is not an issue in this litigation.
On April 12, 2004, Boeing submitted its objections to the
release of the pricing information or wrap-around rates contained
in sections B and H of the contract. Specifically, Boeing objected
to the release of information in Sections H.17, H.23, and H.24, as
well as the following contract line item numbers (“CLINs”) in
2 Boeing used the term “conformed” in its Motion. Pl.’s Mot. for Summ. J. at 4. Neither party defined the term.
3 section B: CLINs 7, 16, 23, 40, 41, 43, and 45.3 Boeing objected
only to the release of rates, not to the release of the total
contract price. Pl.’s Opp’n at 21. Boeing emphasized in all its
pleadings that it is opposed to disclosing “wrap rates,” i.e.,
rates that combine an employee’s wages, employer-paid taxes,
benefits, and allocated overhead costs. Id. at 23. The wrap rates
include “labor rates, profit rates, or the combination of the two
-- and any information that would enable a competitor to derive
those rates.” Id. at 21.
On October 22, 2004, the Air Force responded that information
from 1996 through 2004 could not be used to produce projections
with “sufficient validity to cause a likelihood of substantial
competitive harm.” It also agreed not to release information from
2005 through 2012.
On December 2, 2004, Boeing submitted additional comments. It
agreed to the release of pricing information for the years 1996
through 1999. However, it objected to the release of such data for
the 2000-2004 period on the ground that it could be used to predict
Boeing’s future labor rates.
On January 25, 2005, the Air Force issued its Final
Administrative Decision Letter (“Decision Letter”). The Decision
3 CLINs are “composed predominantly of the costs of materials and services [Boeing] procures from other vendors.” McDonnell Douglas v. Dep’t of the Air Force, (“McDonnell Douglas II”), 375 F.3d 1182, 1190 (D.C. Cir. 2004).
4 Letter indicated that the Air Force would release all requested
pricing information for the period between 1996 and 2004 within two
weeks of that date, although it agreed not to release prices for
the years 2005-2012. The Decision Letter also indicated that
Boeing was required to submit proposed unit prices when it
submitted its contract bid and that Boeing had failed to establish
that release of the requested information would be likely to cause
substantial harm to Boeing’s competitive position.
On February 16, 2005, Boeing responded to the Decision Letter,
stating its disagreement with the agency’s decision. On February
23, 2005, the Air Force responded further, stating that it had been
careful in reaching its decision and indicating that it planned to
release the contract, including the disputed information in
sections B and H, for all years prior to 2005.
On that same date, Boeing filed its Complaint for Declaratory
and Injunctive Relief. On August 18, 2005, a stay was ordered
until December 28, 2005 to permit Boeing to submit comments in
response to the Air Force’s February 23, 2005 letter and to allow
the Air Force to reply. Boeing submitted its comments on November
23, 2005, and the Air Force issued a final agency decision on
December 27, 2005. In this final decision, the Air Force
reiterated its view that the requested information could be
released for the years between 1996 and 2004.
5 II. Standard of Review
FOIA “requires agencies to comply with requests to make their
records available to the public, unless the requested records fall
within one or more of nine categories of exempt material.” Oglesby
v. Dep’t of the Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996) (citing
5 U.S.C. §§ 552(a), (b)).
In a FOIA case, the district court conducts a de novo review
of the government’s decision to withhold requested documents under
any of the statute’s nine exemptions. 5 U.S.C. § 552(a)(4)(B). An
agency that withholds information pursuant to a FOIA exemption
bears the burden of justifying its decision. Petroleum Info. Corp.
v. Dep’t of the Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992)
(citing 5 U.S.C. § 552(a)(4)(B)); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 254 (1986). In this Circuit, an agency is obligated
to submit a so-called “Vaughn Index,” an index of all responsive
material it has withheld, either in whole or in part, under a FOIA
exemption. Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973).
In a FOIA case, a court may award summary judgment solely on
the basis of information provided in affidavits or declarations
when they (1) “describe the documents and the justifications for
nondisclosure with reasonably specific detail”; (2) “demonstrate
that the information withheld logically falls within the claimed
exemption”; and (3) “are not controverted by either contrary
evidence in the record nor by evidence of agency bad faith.”
6 Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir.
1981).
Because this action is a challenge to an agency’s decision to
disclose documents, it, like other agency actions, is reviewed
under the arbitrary and capricious standard of the Administrative
Procedure Act (“APA”). See 5 U.S.C. § 706(2)(A). The agency’s
decision must be set aside if it is “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with the law.”
Canadian Commercial Corp. v. Dep’t of the Air Force, 514 F.3d 37,
39 (D.C. Cir. 2008). An agency’s decision is arbitrary when it
provides no “empirical support” for its assertions, id. at 40, when
it suffers from “shortfalls in logic and evidence,” Canadian
Commercial Corp. v. Dep’t of the Air Force, 442 F. Supp. 2d 15, 39
(D.D.C. 2006), or when it “fail[s] to explain how its knowledge or
experience supports” its decision, McDonnell Douglas v. Dep’t of
the Air Force, (“McDonnell Douglas II”), 375 F.3d 1182, 1191 (D.C.
Cir. 2004).
III. Analysis
A. FOIA’s Exemption 4 and the Trade Secrets Act
FOIA “mandates a strong presumption in favor of disclosure.”
Multi Ag Media LLC v. Dep’t of Agriculture, 515 F.3d 1224, 1227
(D.C. Cir. 2008) (internal quotation marks omitted). Nonetheless,
as noted earlier, an agency may withhold information that falls
within one of the statute’s nine enumerated exemptions. August v.
7 FBI, 328 F.3d 697, 699 (D.C. Cir. 2003). These exemptions were
“designed to protect those legitimate governmental and private
interests that might be harmed by release of certain types of
information.” Id. (internal quotation marks omitted). Yet because
the statute favors disclosure, the exemptions “must be narrowly
construed.” Multi Ag Media LLC, 515 F.3d at 1227 (internal
quotation marks omitted).
FOIA’s Exemption 4 protects “matters that are . . . trade
secrets and commercial or financial information obtained from a
person and privileged or confidential.” 5 U.S.C. § 552(b)(4).
Commercial information is considered “confidential” under the
statute if “disclosure would . . . cause substantial harm to the
competitive position of the person from whom the information was
obtained.” Canadian Commercial Corp., 514 F.3d at 39 (quoting
Nat’l Parks & Conservation Ass’n v. Morton, 498 F.2d 765, 770 (D.C.
Cir. 1974)) (internal punctuation omitted).
To meet this standard, a plaintiff is not required to prove
that substantial harm is “certain” to result from disclosure, but
only that such harm is “likely.” McDonnell Douglas II, 375 F.3d at
1187. Even so, a plaintiff must provide “specific factual or
evidentiary material” to support his claim that harm is likely to
result. Nat’l Parks & Conservation Ass’n v. Kleppe, 547 F.2d 673,
679 (D.C. Cir. 1976) (quoting Pacific Architects & Eng’rs, Inc. v.
The Renegotiation Board, 505 F.2d 383, 385 (D.C. Cir. 1974)). For
8 example, in McDonnell Douglas v. NASA, 180 F.3d 303, 371 (D.C. Cir.
1999) (“McDonnell Douglas I”), the court found that McDonnell
Douglas had shown, “as much as anyone can show before the event,”
that disclosure would result in competitive harm. 180 F.3d at 371-
72.
To prove that information is likely to cause substantial harm
to a plaintiff’s competitive position, a plaintiff need not prove
actual competitive harm. Gulf & W. Indus. v. United States, 615
F.2d 527, 530 (D.C. Cir. 1979); see also Nat’l Parks & Conservation
Ass’n, 547 F.2d at 683. Instead, “[a]ctual competition and the
likelihood of substantial competitive injury is all that need be
shown.” Gulf & W. Indus., 615 F.2d at 530 (citing Nat’l Parks, 547
F.2d at 673).
Release of requested information is likely to cause
substantial competitive harm if disclosure would allow a company’s
competitors to “accurately calculate” its “future bids and its
pricing structure” so that they could “estimate and undercut its
bids.” Gulf & W. Indus., 615 F.2d at 530 (internal punctuation
omitted); see Nat’l Parks, 498 F.2d at 770 (finding a likelihood of
substantial competitive harm when disclosure would potentially
enable competitors to underbid the plaintiff); see McDonnell
Douglas II, 375 F.3d at 1189 (finding a likelihood of substantial
competitive harm when disclosure would “significantly increase the
probability that competitors would underbid” plaintiff).
9 Courts may not impose a per se rule that in all cases
prohibits or requires the release of one particular type of
information. Canadian Commercial Corp., 514 F.3d at 41.
Accordingly, this Circuit has held that Exemption 4 may apply to
line-item pricing in some, but not necessarily all, cases. Id. In
others, Exemption 4 may not apply if the plaintiff fails to
demonstrate that releasing the information would result in
competitive harm. Id. (distinguishing three cases relied on by the
agency because they either involved previously-disclosed
information or because the contractor had failed to show that
disclosure would “enable a rival to reverse-engineer competitively
sensitive information”).
Thus, in the absence of a per se rule, the set of facts in
each case must be evaluated independently to determine whether the
particular information at issue could cause substantial competitive
harm if it were released. See id.
Exemption 4 does not prohibit an agency from disclosing
information; instead, it merely gives an agency permission to elect
to withhold information. McDonnell Douglas II, 375 F.3d at 1185.
However, when information falls within Exemption 4, the Trade
Secrets Act compels an agency to withhold it. Canadian Commercial
Corp., 514 F.3d at 39; see also McDonnell Douglas II, 375 F.3d at
1185. The Trade Secrets Act is a criminal statute that prevents
Government personnel from disclosing certain types of confidential
10 information, and the D.C. Circuit has “long held” that the Trade
Secrets Act is “at least co-extensive with Exemption 4 of FOIA.”
Canadian Commercial Corp., 514 F.3d at 39 (quoting CNA Fin. Corp.
v. Donovan, 830 F.2d 1132, 1151 (D.C. Cir. 1987)). Thus, the Trade
Secrets Act “effectively prohibits an agency from releasing
information subject to the exemption.” McDonnell Douglas II, 375
F.3d at 1186.
B. The Air Force’s Decision Was Not Arbitrary and Capricious Because Boeing Has Not Established that It Is Likely to Suffer Substantial Competitive Harm
The parties agree on a substantial number of issues in this
case. They agree that the requested information cannot be released
if it is likely to produce substantial harm to Boeing’s competitive
position,4 that information between 2005 and 2012 cannot be
released,5 and that information prior to 2000 can be released.6
Accordingly, the parties’ disagreement is a narrow one,
limited to one principal issue: whether disclosure of pricing
information from the period between 2000 and 2004 would be likely
to result in substantial competitive harm to Boeing.
4 See Def.’s Mot. for Summ. J. at 14 (stating that Boeing must prove that disclosure is likely to cause substantial competitive harm). 5 In a letter dated October 22, 2004, the Air Force conceded that it would not release information for the years 2005-2012. Pl.’s. Mot, Exh. K at 1. 6 See Pl.’s Mot. for Summ. J. at 7 (“By letter dated December 2, 2004, Boeing agreed to release of the information for the years 1996 through 1999.”).
11 Boeing contends that releasing the requested pricing
information would likely result in substantial harm to its
competitive position because it would permit underbidding by its
competitors. It argues that the “most significant unknown” factor
in determining a company’s likely bid is its labor rate
information. Pl.’s Opp’n at 4 (emphasis in original). Throughout
this litigation, Boeing has argued that if its competitors obtained
the requested information, they would be “in a good position to
make an extremely good judgments [sic] regarding Boeing’s future
bid prices and thereby underbid Boeing.” Pl.’s Mot. for Summ. J.
at 17 (claiming that a competitor would be able to predict Boeing’s
“likely pricing for similar, future defense procurements”); id.
(disclosing the wrap rate information would “significantly increase
the probability” that its competitors would underbid Boeing)
(quoting McDonnell Douglas II, 375 F.3d at 1189); id., Exh. M
(citing Oswald Decl.); id. at Exh. N (Terry Decl., stating that
“[w]ith knowledge of Boeing’s labor rates, a shrewd competitor can
estimate with reasonable accuracy Boeing’s likely pricing
information for similar, future defense procurements”).
The Air Force reviewed the change in rates over time and
determined that they did not follow a linear progression. Id.
Instead, they either “rose at uneven rates” or “rose and fell from
year to year.” Id. Consequently, the Air Force concluded that
future prices cannot be extrapolated from the information in
12 question, Def.’s Opp’n at 4, and therefore releasing the
information would not enable Boeing’s competitors to estimate
“likely pricing for similar, future defense procurements.”
Boeing interprets this argument to imply that the Air Force is
attempting to “impose[] a standard of its own creation, an
‘unascertainable variables’ standard.” See Pl.’s Opp’n at 7.
Boeing claims that the Air Force derives this standard from
Acumenics Research & Tech. v. Dep’t of Justice, 843 F.2d 800 (4th
Cir. 1988). It further argues that this standard is not
controlling in the D.C. Circuit and that it is directly contrary to
cases like McDonnell Douglas I and McDonnell Douglas II.
However, Boeing misconstrues the Air Force’s claim and ignores
the clear direction given by the court in McDonnell Douglas II.
The Air Force argues that existence of “too many fluctuating
variables” is only one factor to be evaluated in determining
whether substantial competitive harm would be likely to result.
See Def.’s Mot. for Summ. J. at 14-17. It does not argue that the
“unascertainable variables” standard should control, but rather
that the requested information -- labor rates for past years --
would not, in this particular case, enable a competitor to derive
the likely labor rates for future years.
Case law in this Circuit clearly states that a court may
consider the presence of “unascertainable” or “fluctuating”
variables as one relevant element in that inquiry, even though
13 “pinpoint precision is not required.” See McDonnell Douglas II,
375 F.3d at 1192-93. But, as the Air Force acknowledges, the test
is a broader one: whether the release of information could allow a
competitor to extrapolate data that would likely cause substantial
competitive harm. See id. at 1192-93 (rejecting a per se rule and
holding that the presence of “unascertainable” variables is not
sufficient to establish that substantial harm is unlikely).
Accordingly, the critical question is whether some logical,
consistent pattern exists that would permit extrapolation by a
competitor. In cases in which a court has found a likelihood of
substantial competitive harm, the link between the release of
information and the possibility of harm has been clear.
For example, in McDonnell Douglas II, option year prices were
not identical to the final prices because they were subject to
revision by the Economic Price Adjustment Clause. 375 F.3d 1182 at
1188 (internal quotation marks omitted). However, because the
Adjustment Clause was publicly available and explicitly set out the
index used to determine the final prices, it was only a “matter of
simple arithmetic” to determine the exact final prices. Id. The
ability to calculate these adjusted option year prices would then
“significantly increase the probability” that the company’s
competitors would underbid it. Id. at 1189.
This Circuit has reached the opposite conclusion when a party
has provided no convincing, demonstrated link between requested
14 information and data that would be likely to cause substantial
competitive harm. For example, unlike option prices, the vendor
prices in McDonnell Douglas II did not pose a threat of substantial
competitive harm. Id. at 1192. Although McDonnell Douglas had
introduced newspaper articles from 1996 that reported employee
salaries, it had presented “neither a viable theory nor any
evidence” about how this information might be used to calculate a
Labor Pricing Factor. Id. Without more certainty about the cost
of benefits and about the prevailing wage for McDonnell Douglas
employees performing work under this specific contract and at this
specific location, the connection between the requested information
and the Labor Pricing Factor was too attenuated. Id.
Here, release of past labor rates is not problematic in
itself. For Exemption 4 purposes, releasing them would only
threaten a company’s competitive position to the extent they can be
used to predict future labor rates and thereby enable underbidding
by a company’s competitors. Boeing argues that such extrapolation
is possible and that its views and expertise are entitled to
deference on the issue. It further contends that the Government
set an “unreasonably high” standard for demonstrating a likelihood
of competitive harm. Pl.’s Mot. for Summ. J., Exh. M (“[W]e
struggle to determine how we can prove, to the level of certitude
[the Government] seems to desire, that Boeing is likely to suffer
competitive harm from releasing this information.”). Boeing also
15 argues that the Air Force failed to consider the evidence it
presented.
To substantiate its allegation that release of the requested
information would allow a competitor to extrapolate future rates,
Boeing provides a chart that purportedly shows that a competitor
armed with the requested pricing information could estimate the
annual “percent increase factor.” Pl.’s Mot. for Summ. J., Exh. M.
According to Boeing, the chart demonstrates that “a competitor
could use simple arithmetic to estimate within pennies the 2005-
2012 rates” for CLIN 45. Pl.’s Opp’n at 12.
A plaintiff need not demonstrate that the release of
information would allow a competitor to “model exactly or to
pinpoint precisely” information that would cause substantial harm.
McDonnell Douglas II, 375 F.3d at 1193. Nonetheless, the plaintiff
bears the burden of showing that such harm is likely to result. To
satisfy its burden, a plaintiff must provide more than “mere
conclusory opinion testimony,” and he must support his claims with
“specific factual or evidentiary material.” Nat’l Parks, 547 F.2d
673, 679 (D.C. Cir. 1976) (quoting Pacific Architects & Eng’rs,
Inc. v. The Renegotiation Board, 505 F.2d 383, 385 (D.C. Cir.
1974)).
Boeing falls short of satisfying this burden for three
reasons. First, Boeing provides a chart for only one piece of
data: H.23. It does not provide a similar analysis for any of the
16 other sections of the contract that were requested, i.e. H.17,
H.24, and CLINs 7, 16, 23, 40, 41, 43, and 45. There is no
evidence in the administrative record that demonstrates how the
release of these other sections of the contract could be used to
generate data that would harm Boeing’s competitive position.
Despite Boeing’s allegation that releasing the requested
information would place a competitor in a “good position” to make
a “good judgment,” it fails to demonstrate, for the overwhelming
majority of the requested information, how it would be possible for
a competitor to make these “good judgments.”
Second, the Air Force contends that as to other portions of
the requested information, such as the CLINs under H.23, “the rates
for the most part do not fluctuate in a linear fashion.” Pl.’s
Mot. for Summ. J., Exh. T. It concluded that “there is nothing
reliable about using past labor rate data to predict current labor
rates to be bid on a current competition” and that “the age and
unpredictability of these wrap labor rates demonstrate that they
are not accurate predictors of labor rates that would be bid in a
current competition.” Id.
In its Revised Agency Final Decision of December 27, 2005, the
Air Force shows that for CLINs 40, 41, 42, 43, and 47, the
fluctuation from year to year does not follow a discernible
pattern. Pl.’s Mot. for Summ. J., Exh. T. Sometimes they
increase. Sometimes they decrease. Even when they move in one
17 direction, they often move by non-linear increments, such as a
particular percent increase one year, followed by a different
percent increase the following year. Because Boeing has not
provided evidence showing precisely how the release of this
information could be used to cause substantial competitive harm, it
fails to refute the Air Force’s claims.
Third, Boeing’s argument about the predictive value of the
chart is premised on its claim that price increases are constant.
Pl.’s Mot. for Summ. J., Exh. M (chart includes two separate
columns for constant terms: “Constant % incr Factor” and “Constant
fee %”). It states specifically that if competitors obtain pricing
data “reaching back several years (i.e. to 1996),” then competitors
will be able to derive this “increase factor,” which in turn would
permit them to underbid Boeing in the future. Id. (emphasis
added).
Yet Boeing does not explain why it has agreed that information
from 1996 to 1999 can be released if it could presumably be used --
just like information from 2000 to 2004 -- to derive the “constant
term.” Boeing’s different conclusions with respect to the two
periods of information appear contradictory: if Boeing is correct
that a constant term can be derived from only a few years of data
and can be used to cause competitive harm, then the 1996-1999
information would be just as harmful as the 2000-2004 information.
This contradiction suggests that Boeing is either overstating the
18 ease of deriving the constant term or overstating the likelihood
that it will be harmed by the release of 2000-2004 information.
Despite neglecting to explain the discrepancy in its own
treatment of information in the 1996-1999 period and the 2000-2012
period, Boeing argues that the Air Force’s decision was arbitrary
and capricious because it treated the data for the period between
2005 and 2012 differently from the data for the period between 1996
and 2004.
At the time this dispute arose, release of the 2005-2012
information would have provided competitors with an exact future
rate. Releasing data from the 2005-2012 period therefore would
have permitted competitors to underbid Boeing. Releasing past data
from 1996 to 2004, in contrast, would only harm Boeing to the
extent that it could be used to extrapolate future data. As
discussed supra, the Air Force concluded that this past data could
not be used to reliably predict future data. Therefore, the Air
Force did not act arbitrarily when it treated information from the
1996-2004 period differently from information from the 2005-2012
period.
For these reasons, Boeing has not offered evidence sufficient
to carry its burden to show that the Air Force acted arbitrarily
and capriciously when it determined that Boeing is not likely to
19 suffer substantial competitive harm.7
IV. Conclusion
For the reasons set forth above, the Air Force’s decision was
neither arbitrary nor capricious. Accordingly, Defendant’s Motion
for Summary Judgment is granted, and Plaintiff’s Motion for Summary
Judgment is denied. An Order shall accompany this Memorandum
Opinion.
May 18, 2009 /s/ Gladys Kessler United States District Judge
Copies via ECF to all counsel of record
7 Because the Court finds that the Air Force’s decision on the likelihood of substantial competitive harm was not arbitrary and capricious, it is not necessary to determine whether the requested information was previously released.