UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
WP COMPANY LLC d/b/a THE WASHINGTON POST, et al.,
Plaintiffs, v. Civil Action No. 20-1240 (JEB) U.S. SMALL BUSINESS ADMINISTRATION,
Defendant.
MEMORANDUM OPINION
Six months ago, this Freedom of Information Act case — brought by a host of national
news organizations against the Small Business Administration — seemed a thing of the past.
This Court, after all, had granted judgment to Plaintiffs and ordered SBA to release a trove of
data concerning the Paycheck Protection Program (PPP) and the Economic Injury Disaster Loans
(EIDL) program — specifically, the names, addresses, and precise loan amounts for millions of
successful borrowers. The agency eventually did so, the Court awarded Plaintiffs attorney fees,
and the matter was put to bed.
Or not. Less than two months after this Court’s summary-judgment ruling, SBA
discovered that it possessed additional data responsive to the news organizations’ FOIA requests
not addressed in the prior round of litigation. Although the agency eventually released much of
that information, it once again determined that select portions were exempt from disclosure —
this time, information reflecting the current payment status of individual loans, unique numerical
identifiers for each PPP borrower known as DUNS numbers, and borrower tax-identification
numbers. Dissatisfied with those withholdings, Plaintiffs registered an intent to challenge their
1 propriety, and the parties submitted supplemental Cross-Motions for Summary Judgment. The
Court now delivers a mixed verdict: while SBA properly reserved the DUNS numbers, a remand
is warranted for the agency to more fully support its withholdings with respect to interim loan-
status information and borrower tax-identification numbers.
I. Background
The Court need only briefly summarize the history of this litigation in order to set the
stage for the present round of motions. Throughout April and May 2020, the eleven Plaintiffs in
this case submitted FOIA requests seeking data regarding loans approved pursuant to the PPP
and EIDL program. WP Co. LLC v. U.S. Small Bus. Admin. (WP I), 502 F. Supp. 3d 1, 9
(D.D.C. 2020). Administered by SBA, those programs constituted the primary means by which
the federal government assisted small businesses adversely affected by the COVID-19 crisis. As
of May 31, 2021, the agency had processed and approved nearly $800 billion in more than 11.8
million individual PPP loans, along with an additional $217 billion in COVID-related EIDL
loans as of July 8, 2021. See SBA, Paycheck Protection Program (PPP) Report at 2,
https://bit.ly/3wB3e04 (5/31/21 PPP Report); SBA, Disaster Assistance Update: Nationwide
COVID EIDL, Targeted EIDL Advances, Supplemental Targeted Advances at 2,
https://bit.ly/3APeUQp (7/8/21 EIDL Report).
Plaintiffs brought suit in this Court after SBA declined to fulfill their FOIA requests. WP
I, 502 F. Supp. 3d at 9. Although the agency eventually published some loan-level information
in July 2020, it refused to release both dollar figures and borrower names and addresses for any
PPP loan. Id. at 9–10 (describing similar partial-disclosure approach for EIDL data). According
to the Government, its withholdings were based on FOIA Exemptions 4 and 6, which protect,
respectively, confidential commercial information and information the disclosure of which
2 would constitute a clearly unwarranted invasion of personal privacy. Id. (citing 5 U.S.C.
§ 552(b)(4), (6)).
Believing those withholdings lacked merit, the news organizations moved for summary
judgment, and this Court ultimately agreed that neither of SBA’s claimed exemptions covered
the requested information. Id. at 10, 16, 27. It accordingly ordered the agency to release the
“names, addresses, and precise loan amounts” for all individuals and entities that had received
PPP or EIDL loans during the COVID-19 pandemic. See ECF No. 22 (11/5/20 Order) at 2. On
December 1, 2020 — shortly after the Court denied the Government’s bid to stay that Order, see
WP Co. LLC v. U.S. Small Bus. Admin. (WP II), 2020 WL 6887623, at *5 (D.D.C. Nov. 24,
2020) — SBA did just that, publicly producing the full dataset containing the names, addresses,
and precise loan amounts for millions of recipients of PPP and EIDL COVID-related loans
totaling hundreds of billions of dollars. WP Co. LLC v. U.S. Small Bus. Admin. (WP III), 2021
WL 214375, at *1 (D.D.C. Jan. 21, 2021). The Court subsequently awarded Plaintiffs $122,347
in attorney fees and costs early this year. Id. at *9.
As it turned out, however, that disposition — and the three Memorandum Opinions it
entailed — did not mark the terminus of this litigation. Instead, on December 23, 2020, SBA
notified Plaintiffs that it had located in its electronic systems additional PPP loan-level
information responsive to their FOIA requests. See ECF No. 36 (Mot. for Briefing Sched.) at 2.
Although the agency soon released the majority of the newly uncovered data fields, see ECF No.
37-1 (Declaration of Eric S. Benderson), ¶ 12 (cataloging released data), it informed the news
organizations that it was — once again — withholding certain information pursuant to FOIA
Exemptions 4 and 6. See Mot. for Briefing Sched. at 2. Invoking the former exemption, SBA
reserved 1) “[i]nformation that would reveal whether a PPP loan is in default,” including “the
3 status of certain loans, the date associated with that loan status, the outstanding balance of all
PPP loans, and internal codes that identify the SBA offices servicing and processing the PPP
loans”; and 2) Data Universal Numbering System (DUNS) numbers provided by the private
company Dun & Bradstreet to SBA for individual PPP borrowers. See ECF No. 36-1 (1/25/21
Ltr. from SBA to Plaintiffs) at ECF p. 2. Although SBA also later invoked Exemption 8 in
support of its withholding that first batch of information, see ECF No. 37 (Def. Suppl. MSJ) at
21–25, as the Court subsequently explains, that exemption is no longer relevant.
As to Exemption 6, the agency withheld individual borrowers’ tax-identification numbers
— viz., Social Security Numbers and Employer Identification Numbers. See 1/25/21 Ltr. from
SBA to Plaintiffs at ECF p. 2. Although SBA admitted that EINs are not themselves exempt
from disclosure, it nonetheless reserved those numbers because they “are stored in the same data
field as [SSNs]” — which are protected under Exemption 6 — “and cannot be reliably
segregated from them in a dataset this large.” Id.
Plaintiffs objected to these additional withholdings and successfully sought entry of a
renewed briefing schedule to resolve their propriety. See Mot. for Briefing Sched. at 3; Min.
Order of 2/11/2021. Having now received dueling supplemental Cross-Motions for Summary
Judgment, see Def. Suppl. MSJ; ECF No. 42 (Pl. Suppl. Cross-Mot. & Opp.), the Court turns to
resolving them.
II. Legal Standard
Summary judgment may be granted if “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); see also Anderson v. Liberty Lobby, 477 U.S. 242, 247–48 (1986); Holcomb v. Powell,
433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the
4 substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at
895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Holcomb, 433 F.3d at
895. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion”
by “citing to particular parts of materials in the record” or “showing that the materials cited do
not establish the absence or presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1).
FOIA cases typically and appropriately are decided on motions for summary judgment.
See Brayton v. Off. of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). In a
FOIA case, a court may grant summary judgment based solely on information provided in an
agency’s affidavits or declarations when they “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)
(citation omitted). Such affidavits or declarations “are accorded a presumption of good faith.”
SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991). “Unlike the review of other
agency action that must be upheld if supported by substantial evidence and not arbitrary or
capricious,” FOIA “expressly places the burden ‘on the agency to sustain its action’ and directs
the district courts to ‘determine the matter de novo.’” U.S. Dep’t of Justice v. Reporters Comm.
for Freedom of Press, 489 U.S. 749, 755 (1989) (quoting 5 U.S.C. § 552(a)(4)(B)).
III. Analysis
Congress enacted FOIA “to pierce the veil of administrative secrecy and to open agency
action to the light of public scrutiny.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976)
5 (citation omitted). “The basic purpose of FOIA is to ensure an informed citizenry, vital to the
functioning of a democratic society, needed to check against corruption and to hold the
governors accountable to the governed.” John Doe Agency v. John Doe Corp., 493 U.S. 146,
152 (1989) (citation omitted).
In order to further that purpose, the statute provides that “each agency, upon any request
for records which (i) reasonably describes such records and (ii) is made in accordance with
published rules[,] . . . shall make the records promptly available to any person.” 5 U.S.C.
§ 552(a)(3)(A). The Government need not, however, turn over requested information that falls
into one of nine statutorily created exemptions from FOIA’s broad directive. See id.
§ 552(b)(1)–(9). “Those exemptions,” the Supreme Court recently explained, “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 (2019) (cleaned up) (quoting Encino Motorcars,
LLC v. Navarro, 138 S. Ct. 1134, 1142 (2018)). Where an agency withholds records, it bears the
burden of showing that at least one of the exemptions applies. See Vaughn v. Rosen, 523 F.2d
1136, 1144 (D.C. Cir. 1975). In order to carry that burden, the Government must provide a
“relatively detailed justification” for its withholding, “specifically identifying the reasons why a
particular exemption is relevant.” Morley v. CIA, 508 F.3d 1108, 1122 (D.C. Cir. 2007)
(quoting King v. U.S. Dep’t of Justice, 830 F.2d 210, 219 (D.C. Cir. 1987)). Courts can compel
the release of any records that do not satisfy the requirements of at least one exemption. See
Reporters Comm., 489 U.S. at 755.
Here, SBA seeks to withhold three distinct categories of information. As the first two
groupings implicate Exemption 4, the Court begins there before shifting to Exemption 6 and
segregability.
6 A. Exemption 4
SBA invoked Exemption 4 to withhold 1) the interim payment status of individual PPP
loans (along with additional data that would reveal such status); and 2) DUNS numbers
associated with individual PPP borrowers. See Benderson Decl., ¶¶ 15–16.
1. Legal Framework
Exemption 4 shields from disclosure “commercial or financial information obtained from
a person and privileged or confidential.” 5 U.S.C. § 552(b)(4). To demonstrate that this
exemption shelters the information withheld, SBA must show that it is “(1) commercial or
financial, (2) obtained from a person, and (3) privileged or confidential.” Pub. Citizen Health
Res. Grp. v. FDA, 704 F.2d 1280, 1290 (D.C. Cir. 1983).
Much like the initial summary-judgment dispute last fall, the present contretemps turns
on the third prong. In order for commercial or financial information to qualify as “privileged or
confidential,” the government must show that such information is “both customarily and actually
treated as private by its owner.” WP I, 502 F. Supp. 3d at 12 (quoting Food Mktg., 139 S. Ct. at
2366). In other words, the information must be “customarily kept private, or at least closely
held, by the person imparting it.” Food Mktg., 139 S. Ct. at 2363. The critical question is “how
the particular party customarily treats the information, not how the industry as a whole treats the
information.” Ctr. for Auto Safety v. Nat’l Highway Traffic Safety Admin., 244 F.3d 144, 148
(D.C. Cir. 2001) (citing Critical Mass Energy Project v. Nuclear Reg. Comm’n, 975 F.2d 871,
872, 878–80 (D.C. Cir. 1992)).
“Complicating matters,” the Supreme Court in 2019 suggested that “the plain meaning of
the word ‘confidential’” might require the government to establish an “additional necessary
condition” before invoking Exemption 4 — namely, that “the party receiving the information . . .
7 ‘provide[d] some assurance that it [would] remain secret.’” Renewable Fuels Ass’n v. U.S.
EPA, No. 18-2031, 2021 WL 602913, at *6 (D.D.C. Feb. 16, 2021) (quoting Food Mktg., 139 S.
Ct. at 2363). The Court, however, did not resolve whether this second condition is mandatory,
see Food Mktg., 139 S. Ct. at 2363, and this Court has since explained that binding Circuit
precedent compels an answer in the negative. See Renewable Fuels Ass’n, 2021 WL 602913, at
*7 (“The current law of the D.C. Circuit . . . is that information is confidential under Exemption
4 ‘if it is of a kind that would customarily not be released to the public by the person [or entity]
from whom it was obtained.’”) (alteration in original) (quoting Critical Mass, 975 F.2d at 879).
This Court, accordingly, declines to “read the word ‘confidential’ to impose a blanket
requirement that the government provide an assurance of privacy in every case in which it asserts
Exemption 4.” Id. at *8.
Additionally, an agency may withhold information under Exemption 4 — even if it falls
within the scope of the exemption — “only if . . . the agency reasonably foresees that disclosure
would harm an interest protected by [that] exemption.” 5 U.S.C. § 552(a)(8)(A)(i)(I); see also
Reporters Comm. for Freedom of Press v. FBI, No. 20-5091, 2021 WL 2753938, at *2, 11–12
(D.C. Cir. July 2, 2021). To satisfy this standard, an agency must “identify specific harms to the
relevant protected interests that it can reasonably foresee would actually ensue from disclosure of
the withheld materials,” and it must “connect [such] harms in a meaningful way to the
information withheld.” Ctr. for Investigative Reporting v. U.S. Customs & Border Prot., 436 F.
Supp. 3d 90, 106 (D.D.C. 2019) (cleaned up) (citation omitted).
2. Interim Loan-Status Information
With that prelude concluded, the Court may analyze the first category of documents.
SBA withheld, and Plaintiffs seek, “lender designations of certain [PPP] borrowers” as being
8 current, in default, delinquent, or late on loan payments. See Def. Suppl. MSJ at 1; see also
Benderson Decl., ¶¶ 15, 20. The Court will refer to these data, obtained via monthly reports
submitted by lenders to SBA via its standard Form 1502, as “interim loan[-]status information.”
Benderson Decl., ¶¶ 10, 28; see also SBA, SBA Form 1502 and Instructions,
https://bit.ly/2UHTLa0. The agency also reserved the dates associated with such statuses,
outstanding loan balances, and internal codes identifying the particular SBA office servicing
individual loans — data that, “if disclosed, [would] unavoidably reveal interim loan[-]status
information.” Def. Suppl. MSJ at 24; see also Benderson Decl., ¶¶ 15, 20–21, 55–56. SBA, by
contrast, has published the final — as opposed to interim — statuses of all qualifying PPP loans,
marking them as “paid in full” or “charged off.” Benderson Decl., ¶¶ 20, 45.
It makes sense to begin with the interim loan-status information. If Exemption 4 protects
that data, it likewise covers distinct material that would in turn reveal interim loan status. See
Renewable Fuels Ass’n, 2021 WL 602913, at *3; WP I, 502 F. Supp. 3d at 13. There is no
dispute that this information — which describes the extent to which borrowers are current on
their loan payments — is “commercial or financial” data, as required under Exemption 4’s initial
prong. See Def. Suppl. MSJ at 11. Nor do Plaintiffs gainsay that the relevant material was
“obtained from a person” — viz., the PPP lenders who reported it to SBA via Form 1502. Id. at
12; see also 5 U.S.C. § 551(2) (defining “person” to include “an individual, partnership,
corporation, association, or public or private organization other than an agency”). The sole
disagreement thus revolves around whether the information is “privileged or confidential” under
prong three — or, to be more precise, whether these lenders “customarily and actually” treat
interim PPP loan status as “private, or at least closely held.” Food Mktg., 139 S. Ct. at 2363,
9 2366; see also Def. Suppl. MSJ at 13, 19 (framing question as such); Pl. Suppl. Cross-Mot. &
Opp. at 9, 13 (similar).
a. Submitter-Specific Information
SBA stumbles out of the gate by declining to provide evidence of the type that would
shed the most light on that question: statements from PPP lenders themselves. Recall that the
critical inquiry for Exemption 4 is “how the particular party customarily treats the information,
not how the industry as a whole treats the information.” Renewable Fuels Ass’n, 2021 WL
602913, at *6 (emphasis added) (quoting Ctr. for Auto Safety, 244 F.3d at 148).
Notwithstanding the reality that it bears the “burden of proving the provider’s custom,” Critical
Mass, 975 F.2d at 879, SBA did not contact a single lender and inquire how it actually and
customarily treats interim loan-status information. Indeed, the Government has not made any
particularized showing whatsoever with respect to the lenders that disbursed PPP funds.
That failure is problematic, especially when considered in the context of comparable
Exemption 4 cases from this district. Earlier this year, for instance, this Court considered a
dispute involving certain documents containing information obtained from small oil refineries.
Renewable Fuels Ass’n, 2021 WL 602913, at *6. Upon receiving the plaintiff’s FOIA request,
EPA contacted at least 72 individual refineries and provided them an opportunity to denote and
substantiate whether they treated the relevant information as confidential. Id. The Court then
considered those refinery-by-refinery submissions when determining whether the government
had “adequately ‘sustain[ed]’ its decision to withhold” under Exemption 4 the information
contained in individual documents. Id. at *6–7 (alteration in original) (quoting Reporters
Comm., 489 U.S. at 755) (affirming agency’s withholding decisions as to information relating to
certain refineries but remanding for further examination of select information that refineries had
10 not demonstrated they kept confidential); see also Humane Soc’y Int’l v. U.S. Fish & Wildlife
Serv., No. 16-720, 2021 WL 1197726, at *2–4 (D.D.C. Mar. 29, 2021) (noting agency’s
invitation to private companies whose data it withheld under Exemption 4 to certify that they
customarily and actually treated the requested information as confidential and considering over a
hundred declarations from such companies). In Center for Investigative Reporting, similarly,
Chief Judge Beryl Howell rejected an agency’s Exemption 4 argument where it “offer[ed] no
declarations from the submitters themselves” as to their customary handling of the contested
information, but instead simply relied on “[c]onclusory statements by an agency official about
what the agency official may believe about how a submitter customarily treats the information.”
436 F. Supp. 3d at 110–11 (citation omitted). Absent greater “foundation to support [its]
confidentiality claim” — e.g., an “indicat[ion] that the submitters told [the agency] that [the
relevant information] w[as] confidential” — the government could not carry its burden. Id.
In each of these Exemption 4 cases, the court emphasized the central importance of
government evidence substantiating “how the particular party customarily treats the information”
at issue. Renewable Fuels Ass’n, 2021 WL 602913, at *6 (quoting Ctr. for Auto Safety, 244
F.3d at 148); see also Humane Soc’y, 2021 WL 1197726, at *3; Ctr. for Investigative Reporting,
436 F. Supp. 3d at 110–11. That evidence can take a number of forms. An agency affidavit, for
instance, may reflect personal knowledge that submitters keep certain information confidential.
Ctr. for Investigative Reporting, 436 F. Supp. 3d at 110–11 (citing ICM Registry, LLC v. U.S.
Dep’t of Commerce, 538 F. Supp. 2d 130, 138 (D.D.C. 2008)). Sometimes a confidential header
on a document, the nature of its contents, or the existence of a non-disclosure agreement may
speak for itself. Id. at 111 (citing, e.g., Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec.,
117 F. Supp. 3d 46, 64 (D.D.C. 2015)). In the absence of these or similar forms of proof,
11 however, an agency may find it necessary to contact submitters of the requested information and
provide them an opportunity to denote its confidentiality and substantiate that claim. At bottom,
the Government must do something to establish how the particular information-providers
customarily and actually treat the relevant material. Id. at 112 (rejecting Government argument
that “there can be no debate that a company customarily keeps private the types of information
contained in the withheld records” and instead demanding proof that “these specific companies
customarily do so”) (citation omitted).
This reality was not lost on SBA. On the contrary, the agency’s opening brief
acknowledged that precedent compels a focus “on the activity of the particular persons whose
information [is] in dispute, rather than on the entire sector of the economy from which the
information ar[ises].” Def. Suppl. MSJ at 12 (citing Renewable Fuels Ass’n, 2021 WL 602913,
at *6). Defendant nonetheless actively disclaimed any intent to make the former (mandatory)
showing, insisting that it was “not feasible” to “conduct[] . . . a party-particularized inquiry”
because it could not “obtain from each of the several thousand participating PPP lenders a
declaration regarding their confidentiality practices.” Id. at 13. Yet nowhere does the
Government suggest that it could not obtain such statements from some lenders. Indeed, in
2021, the top fifteen PPP lenders accounted for over half (52%) of all loans approved and nearly
a third (32%) of net dollars approved. See 5/31/21 PPP Report at 2, 7; see also Pl. Suppl. Cross-
Mot. & Opp. at 10 (offering data for earlier time period). A survey of that small yet meaningful
subset of lenders, along with credible substantiation of any individual lender’s claim of
customary and actual confidentiality with respect to interim PPP loan status, would go a long
way toward bringing that material within Exemption 4’s sweep. At present, however, the
agency’s decision to eschew a party-specific inquiry of any scope — despite Plaintiffs’
12 highlighting the issue in their Cross-Motion, see Pl. Suppl. Cross-Mot. & Opp. at 9–10 — only
raises questions about whether PPP lenders truly consider and treat the relevant information as
confidential. The Court’s holding, therefore, would appear straightforward: in the absence of
any evidence regarding the particular practices of even a single PPP lender with respect to
interim loan-status information, it cannot sustain SBA’s decision to withhold that information.
b. SBA’s Arguments
In a bid to discharge its burden notwithstanding the conspicuous dearth of lender-specific
evidence, SBA points to several “circumstances” that assertedly “warrant the inference” that
“interim loan information . . . is ‘both customarily and actually treated as private by its owner.’”
Def. Suppl. MSJ at 14 (quoting Food Mktg., 139 S. Ct. at 2366). Certain of those
“circumstances,” if in future considered with a survey of individual PPP lenders establishing
their confidentiality practices, might well fortify any renewed Exemption 4 argument from the
agency. They cannot, however, currently carry the day on their own, as none has substantial
bearing on — let alone speaks squarely to — the operative question here: whether PPP lenders
customarily and actually treat interim loan status as confidential. A good deal more than “mere
inference and guesswork” is needed before this Court can resolve that inquiry in the affirmative.
Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, 955 F. Supp. 2d 4, 18
(D.D.C. 2013).
To start, SBA highlights language from FOIA’s legislative history that supposedly
“indicates that Congress itself viewed information about the lender-borrower relationship as
protected by Exemption 4.” Def. Suppl. MSJ at 15–16; see S. Rep. No. 89-813, at 9 (1965)
(stating that Exemption 4 would “include any commercial, technical, and financial data,
submitted by an applicant or a borrower to a lending agency in connection with any loan
13 application or loan”). The fact that legislators more than fifty years ago believed that FOIA
protected certain loan-related information, however, says little about the confidentiality practices
of PPP lenders today vis-à-vis interim PPP loan status. Nor do the agency’s non-binding,
decades-old cases from different contexts have much to offer on that critical question. See
Comstock Int’l (U.S.A.), Inc. v. Export-Import Bank of the U.S., 464 F. Supp. 804, 807 (D.D.C.
1979) (noting agency’s assessment of confidentiality practices of banks with respect to loan
agreements, not loan statuses); Vogel v. W. T. Grant Co., 458 Pa. 124, 127–31 (1974) (pre-FOIA
case discussing tort remedy for breaches of confidential debtor-creditor relationship with respect
to consumer credit, not commercial credit).
In addition, to the extent that any “practical reasons” why lenders might generally keep
their borrowers’ loan-payment status under wraps suggest that they actually do so, see Def.
Suppl. MSJ at 17, such reasons would appear to carry far less weight in the specific context of
PPP loans. As SBA itself admits, the ongoing and evolving nature of its PPP loan-forgiveness
process — a unique benefit not available to borrowers under the agency’s normal loan-guaranty
program, see Benderson Decl., ¶ 33 — ensures that “interim loan[-]status information supplies
little probative insight into whether a loan ultimately will be charged off or paid in full.” Def.
Suppl. MSJ at 2–3, 5–6. Overdue payment status, accordingly, cannot reliably be construed as
“a sign of a [PPP] borrower’s financial weakness.” Id. at 17 (seemingly recognizing as much).
Neither would disclosure of the delinquent share of a lender’s PPP loan portfolio supply a rival
company “unfair insights” and “competitive advantage.” Id. at 19. In contrast, once again, to
the agency’s general lending program, SBA guarantees the full value of all PPP loans, thereby
ensuring that lenders will be made whole regardless of whether borrowers pay up. Id. at 5 (citing
15 U.S.C. § 636(a)(36)(K)(i)); see also ECF No. 46 (Pl. Suppl. Reply) at 6–7.
14 Finally, the agency points to its own FOIA regulations, under which “loan status, other
than charged-off or paid-in-full,” is “generally exempt from disclosure.” Def. Suppl. MSJ at 14
(cleaned up) (quoting 13 C.F.R. Pt. 102, Subpt. A, App. A). But the fact that SBA might largely
refrain from disclosing interim loan-status information does not resolve whether participating
PPP lenders customarily and actually do the same — and that, of course, is the $64,000 question.
To be sure, while a government “assurance of privacy is undoubtedly relevant” to the Exemption
4 analysis, WP I, 502 F. Supp. 3d at 16 (citation and internal quotation marks omitted), SBA’s
general FOIA regulation does not come close to establishing the specific confidentiality practices
of PPP lenders in a manner sufficient to get the agency over the hump. Of greater probative
value for that key inquiry would be the existence of a federal prohibition on lenders’ publicly
disclosing their borrowers’ interim loan status. Although SBA’s discussion is somewhat
muddled, a single paragraph in its opening brief intimates that agency regulations might set out
such a bar. See Def. Suppl. MSJ at 15 (stating that lender’s failure to treat as confidential “Form
1502’s contents” — which include interim loan status — “could be” a “ground” for “triggering
informal enforcement proceedings”) (cleaned up) (citing 13 C.F.R. § 120.1400(c)(8)); see also
13 C.F.R. § 120.1060. To the extent that any such disclosure prohibition encompasses the
payment status of individual loans as a general matter — as opposed to simply the literal
information contained in Form 1502 — that would once again be relevant to, although not
dispositive of, the question at hand. On the present record, however, precisely what SBA
regulations and accompanying guidance demand of lenders with respect to interim loan status
and confidentiality — and, more importantly, how lenders actually behave on the ground — is
far too nebulous for the Court to conclude that SBA has carried its burden to justify its
Exemption 4 withholdings.
15 ***
Although the Government has not yet established that interim loan-status information —
and, by extension, distinct material that would in turn reveal such information — qualifies for
protection under Exemption 4, it may well be the case that a renewed showing in accordance
with the guidance contained in this Opinion produces a different result. The Court, accordingly,
will provide SBA another opportunity to explain “with reasonably specific detail” how the
information at hand “logically falls within” Exemption 4. Elec. Frontier Found. v. U.S. Dep’t of
Justice, 739 F.3d 1, 7 (D.C. Cir. 2014) (quoting Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir.
1984)); see also Cause of Action Inst. v. Export-Import Bank of the U.S., No. 19-1915, 2021 WL
706612, at *7 (D.D.C. Feb. 23, 2021) (requiring agency to provide more robust explanations for
withholdings in comparable circumstances). It expects that any such effort will feature a
particularized showing of the customary and actual practices of PPP lenders themselves.
Three final issues merit brief mention. First, the Court’s present disposition renders it
unnecessary to fully explore — at least for now — Plaintiffs’ argument that PPP loan status is
not “private” information because “lenders routinely provide information about borrowers to
commercial credit bureaus, which can then make that information publicly available in business
credit reports.” Pl. Suppl. Cross-Mot. & Opp. at 10. While the Court has its doubts about the
force of that position, it seems wiser to defer analysis until SBA returns with a more complete
picture of how lenders customarily treat interim PPP loan-status information. Nor need the
Court consider whether the Government has demonstrated the requisite foreseeable harm from
disclosure of such material; since the agency has not yet established the applicability of
Exemption 4 in the first instance, it has, “a fortiori, failed to satisfy the ‘heightened’ foreseeable-
harm requirement as well.” Ctr. for Investigative Reporting, 436 F. Supp. 3d at 113.
16 Finally, and as previously mentioned, SBA’s summary-judgment motion alternatively
contends that PPP loan status is protected from disclosure under Exemption 8. See Def. Suppl.
MSJ at 21–24; see also 5 U.S.C. § 552(b)(8) (shielding information “contained in or related to
examination, operating, or condition reports prepared by, on behalf of, or for the use of an
agency responsible for the regulation or supervision of financial institutions”). Both parties seem
to agree, however, that the Court need not address Exemption 8 in any capacity, as the fate of the
interim loan-status information turns entirely on the outcome of the Exemption 4 dispute. See
ECF No. 45 (Def. Suppl. Reply & Opp.) at 17–18 (“If the information is confidential . . . , it is
properly withheld under Exemption 4 (so no Exemption 8 analysis is necessary). If, on the other
hand, the information is not confidential, then it cannot be withheld under either exemption
under the circumstances here presented.”); Pl. Suppl. Reply at 8 (“Plaintiffs agree with the SBA
that the Court ‘need not address’ Exemption 8 . . . .”). Perfectly happy to forbear, the Court
pivots to the next category of withholdings.
3. DUNS Numbers
Beyond interim loan-status information, SBA also reserved DUNS numbers associated
with individual PPP borrowers. It requires considerably less analysis for the Court to conclude
that these withholdings fall squarely under the Exemption 4 umbrella.
Developed and maintained by Dun & Bradstreet, DUNS numbers are unique nine-digit
identifiers for businesses. See Benderson Decl., ¶ 16; ECF No. 37-5 (D&B Ltr.) at ECF p. 2.
Having contracted with SBA to support the PPP, D&B provides — for a fee — the agency with
“access to and a limited right to use those numbers.” Benderson Decl., ¶ 16. Specifically, that
“limited license” permits SBA to “use [DUNS] Numbers . . . solely for identification purposes
and only for [the agency’s] internal business use”; in addition, “DUNS Numbers are proprietary
17 to and controlled by D&B.” Id., ¶ 66; see also D&B Ltr. at ECF p. 2 (supplying more detail
regarding license agreement). According to D&B, PPP borrowers’ DUNS numbers “are not
publishable by SBA under the terms of the SBA contract and the Dun & Bradstreet License.”
ECF No. 45-3 (2d D&B Ltr.) at ECF p. 2. More generally, D&B meticulously protects the
assignment and distribution of DUNS numbers, which were “developed at great effort and
expense.” D&B Ltr. at ECF p. 2. “It is only in the strictest of circumstances — and where
carefully negotiated by D&B — that any display of a [DUNS] is permitted, even in small
amounts.” Id.
The above discussion plainly demonstrates that DUNS numbers are “commercial”
information “obtained from a person” — i.e., D&B. See 5 U.S.C. § 552(b)(4); Baker &
Hostetler LLP v. U.S. Dep’t of Commerce, 473 F.3d 312, 319 (D.C. Cir. 2006) (explaining that
Exemption 4 “applies (among other situations) when the provider of the information has a
commercial interest in the information submitted to the agency”). Exemption 4’s third condition
— confidentiality — is likewise satisfied. The DUNS numbers are proprietary information
protected by trademark, D&B’s license agreement with SBA does not “allow distribution or
publication of the [DUNS] in any format,” and the company “has deliberately restricted any
possibility of mass accumulation of [DUNS] information” — and even the display of small
quantities of such numbers — “outside of a Licensed customer contract.” D&B Ltr. at ECF pp.
2–3; see also Benderson Decl., ¶¶ 66–67; 2d D&B Ltr. at ECF p. 2 (“[D&B] only makes [DUNS
numbers] available under license.”).
Plaintiffs, once again, contest only this third prong of the Exemption 4 analysis —
whether the withheld DUNS numbers are customarily and actually treated as “private, or at least
closely held.” Food Mktg., 139 S. Ct. at 2363; see Pl. Suppl. Cross-Mot. & Opp. at 13. In doing
18 so, they point to three Government websites that assertedly “make DUNS numbers available on
demand and in bulk with no apparent restrictions on their use.” Pl. Suppl. Cross-Mot. & Opp. at
14; see also ECF No. 42-3 (Declaration of Maxwell S. Mishkin), ¶¶ 12–14. As SBA
persuasively rejoins, however, these selective disclosures of several thousand DUNS numbers
each occurred pursuant to a specific license agreement developed in a unique context distinct
from the far larger PPP dataset at issue here. For instance, the U.S. General Services
Administration maintains a special contract with D&B that authorizes it to publish certain D&B
data (including DUNS numbers) for federal contractors registered in the Government’s System
for Award Management (SAM), a precondition to obtaining any federal contract. See ECF No.
45-1 (Second Declaration of Eric Benderson), ¶¶ 27–28, 31. (SAM is the common database
from which each of Plaintiffs’ identified websites appear to draw. Id., ¶ 29.) As D&B makes
clear, the rights accorded GSA under its “customized” license “would not be” — and, in fact, are
not — “extended to all 420 million+ DUNS Numbers at issue (or to the 7+ million in the PPP
loan program).” 2d D&B Ltr. at ECF p. 2. Put differently, D&B’s decision to provide the
Government with limited publication rights for a “specific subset” of DUNS numbers — i.e.,
entities registered on SAM — does not mean that the company has surrendered any claim of
customary confidential treatment regarding the overwhelming remainder of its proprietary
dataset, particularly the millions of distinct numbers for PPP borrowers that the D&B-SBA
license agreement expressly prohibits the agency from disclosing. See 2d Benderson Decl., ¶ 32;
see also 2d D&B Ltr. at ECF p. 2.
In addition, the Government has carried its burden to show reasonably foreseeable harm
from disclosure of the DUNS numbers. To fulfill the foreseeable-harm requirement in the
context of Exemption 4, the agency must explain how disclosure “would harm an interest”
19 protected by such exemption, “such as by causing genuine harm to the submitter’s economic or
business interests.” Ctr. for Investigative Reporting, 436 F. Supp. 3d at 113 (cleaned up)
(citation omitted); see also Leopold v. U.S. Dep’t of Justice, No. 19-3192, 2021 WL 124489, at
*7 (D.D.C. Jan. 13, 2021) (foreseeable harm established in Exemption 4 context where private
company asserted that release “could disadvantage [it] and provide an unfair advantage to its
competitors”). Here, although SBA’s discussion is rather cursory, both the agency and D&B
assert precisely that type of harm to the company’s business interests. See Benderson Decl., ¶ 68
(“[A] bulk release of over 5 million [DUNS] Numbers . . . would upend D&B’s management of
its proprietary system and sale of its product.”); D&B Ltr. at ECF p. 2 (“When a large set of
[DUNS] Numbers become[s] freely available to third parties, its use as a unique identifier
becomes diluted for those businesses whose [DUNS] have become widely available.”); id. at
ECF p. 3 (“[T]he damage to D&B’s data collection and verification abilities that would be
caused by releasing such a large amount of proprietary [DUNS] data would be significant.”).
Plaintiffs, for their part, never even address the issue of foreseeable harm with respect to the
DUNS numbers. That information, accordingly, was properly withheld.
B. Exemption 6 and Segregability
The final set of reserved data at issue here comprises PPP borrowers’ tax-identification
numbers. As a reminder, the Government withheld SSNs for individual borrowers and EINs for
other businesses. See Benderson Decl., ¶ 70. All agree that SSNs are properly protected under
Exemption 6. See 5 U.S.C. § 552(b)(6) (covering information “the disclosure of which would
constitute a clearly unwarranted invasion of personal privacy”); Def. Suppl. MSJ at 28; Pl.
Suppl. Cross-Mot. & Opp. at 21. No one, meanwhile, contends that EINs themselves fall within
the scope of that exemption. See Def. Suppl. MSJ at 29; Pl. Suppl. Cross-Mot. & Opp. at 18–19.
20 So why is this issue hard? It turns out that SBA reserved EINS because it assertedly lacked the
ability to distinguish between them and SSNs. See Def. Suppl. MSJ at 28–29.
Explaining how that could be so requires a little more detail. Both SSNs and EINs — the
latter of which are issued by the Internal Revenue Service — are unique nine-digit identifiers.
See Benderson Decl., ¶¶ 70, 72. SSNs usually contain dashes after the third and fifth digit, while
EINs often contain a single dash after the second — e.g., XXX-XX-XXXX vs. XX-XXXXXXX. Id., ¶ 72.
Absent such markings, however, a reader cannot tell the two numbers apart. Id. The original
PPP application form contained a single free-text field labeled “Business TIN” into which
prospective borrowers entered their SSN or EIN, either with or without dashes. Id., ¶ 73. Apart
from using those dashes, the form offered no way for borrowers to indicate which of the two
numbers they were providing. Id.
Upon receiving borrowers’ applications, lenders transmitted information contained
therein to SBA through an electronic interface. Id., ¶ 74. That interface required lenders to input
an applicant’s tax-identification number as a single nine-digit string (sans dashes) and then to
check a box indicating whether such number was an SSN or EIN. Id. Because the underlying
PPP application form did not ask prospective borrowers to indicate which type of number they
were providing, however, lenders checking the box in the interface were “often forced to guess
whether they were submitting an EIN or SSN.” Id. As some lenders “must have guessed
incorrectly” or made other “manual errors,” id., ¶ 75, SBA “has good reason to believe that some
indeterminate share of the identification numbers recorded as EINs in its PPP loan database are
in fact SSNs, and vice versa.” Def. Suppl. MSJ at 27–28. According to the agency, because it
has “no way to check or correct for such errors” or otherwise confirm which numbers are in fact
EINs and which are SSNs, an en masse release of numbers identified by lenders as EINs “would
21 almost certainly result in an erroneous release of numerous social security numbers.” Benderson
Decl., ¶¶ 75, 77; see also id., ¶ 77 (stating that “there is no means of segregating the [EINs]
without great risk of releasing SSNs”). It thus elected to withhold the entire data field — EINs
and SSNs alike — even though only the latter fell under a FOIA exemption. Id., ¶ 77; see also
Def. Suppl. MSJ at 28–29.
FOIA requires that “[a]ny reasonably segregable portion of a record shall be provided to
any person requesting such record after deletion of the portions which are exempt.” 5 U.S.C.
§ 552(b). While the Government is “entitled to a presumption that [it] complied with the
obligation to disclose reasonably segregable material,” Hodge v. FBI, 703 F.3d 575, 582 (D.C.
Cir. 2013) (citation omitted), such presumption of compliance does not obviate its obligation to
carry its evidentiary burden and fully explain its decisions on segregability. See Mead Data
Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 261–62 (D.C. Cir. 1977). To do so, the
agency must provide “a ‘detailed justification’ and not just ‘conclusory statements’ to
demonstrate that all reasonably segregable information has been released.” Valfells v. CIA, 717
F. Supp. 2d 110, 120 (D.D.C. 2010) (quoting Mead Data, 566 F.2d at 261); see also Elec.
Privacy Info Ctr. v. U.S. Dep’t of Homeland Sec., 926 F. Supp. 2d 311, 315 (D.D.C. 2013) (“To
justify withholding a document in full, an agency must show with ‘reasonable specificity’ why
the document cannot be further segregated . . . or why the document is not reasonably
segregable.”) (quoting Johnson v. Exec. Off. for U.S. Att’ys, 310 F.3d 771, 776 (D.C. Cir.
2002)).
SBA’s present submissions are insufficient to sustain its segregability decision for a
simple reason: the agency has not explained why it cannot reasonably segregate EINs from
SSNs. All the Government offers on that score is the conclusory assertion that it has “no
22 technical way to check or correct for” any SSNs that were incorrectly labeled as EINs. See Def.
Suppl. MSJ at 28; see also Def. Suppl. Reply & Opp. at 19. Plaintiffs, however, have an idea:
seek assistance from the Social Security Administration to identify SSNs and from the IRS to
identify EINs. See Pl. Suppl. Cross-Mot. & Opp. at 21. Perhaps those agencies, Plaintiffs
submit — each of which is responsible for the respective numbers at issue — could themselves
efficiently segregate the electronic data with the stroke of a few keys. The Government never
explains why it did not pursue this method or declined even to consult with those agencies.
In light of that plausible unaddressed possibility and SBA’s thin submissions as to its
own inability to distinguish between the numbers, the Court concludes that the Government has
not discharged its “obligation to carry its evidentiary burden and fully explain its decisions on
segregability.” Am. Immigr. Council v. U.S. Dep’t of Homeland Sec., 950 F. Supp. 2d 221, 248
(D.D.C. 2013). The agency, in other words, has not demonstrated with “reasonable specificity,”
Johnson, 310 F.3d at 776 (citation omitted), why non-exempt EINs are “inextricably
intertwined” with exempt SSNs. Mead Data, 566 F.2d at 260. To be clear, the Court does not
here order the Government to actually carry out Plaintiffs’ proposed strategy. Perhaps the SSA
and IRS face the same barriers as does SBA. Or perhaps any disentangling will be excessively
burdensome or time consuming in a dataset as large as the present so as to render the suggested
tack “[un]reasonabl[e].” 5 U.S.C. § 552(b). At a minimum, however, SBA must “explain why
the possibility of [this] method of segregability is unavailable if it is to claim the protection of
the exemption,” Evans v. Fed. Bureau of Prisons, 951 F.3d 578, 587 (D.C. Cir. 2020) (emphasis
added) — or at least bolster its (presently unsupported) contention that information is not
“reasonably” segregable when it “cannot be segregated by any technical means available to the
agency that holds the record.” Def. Suppl. Reply & Opp. at 20; cf. Mead Data, 566 F.2d at 261
23 (“[U]nless the segregability provision of the FOIA is to be nothing more than a precatory
precept, agencies must be required to provide the reasons behind their conclusions in order that
they may be challenged by FOIA plaintiffs and reviewed by the courts.”).
The Court, accordingly, will provide the Government another opportunity to more fully
explain its segregability decision — or, alternatively, to actually segregate the relevant data
through some reasonably available means. This will balance the need to protect sensitive SSNs
while affording the possibility of the release of EINs.
IV. Conclusion
For the foregoing reasons, the Court will grant in part and deny in part both supplemental
Cross-Motions for Summary Judgment. A separate Order so stating shall issue this day.
/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: July 15, 2021