Transdigm communications and docs

Vikas Kumar filed this request with the Department of Defense, Office of the Inspector General of the United States of America.
Tracking # DODOIG-2017-000876
Status
Rejected

Communications

From: Brandon Smith

To Whom It May Concern:

This is a request under the Freedom of Information Act. I hereby request the following records:

Any and all conversations/communications with TransDigm from January 1, 2015 to the date of this request. I also request any documents in the possession of the DOD IG’s audit component, or either of its two investigative components, regarding TransDigm.
ONGOING INVESTIGATION / IMMINENT ENFORCEMENT PROCEEDING

Please be aware, when considering the use of the 7(A) exemption, that the types of possible harm are spelled out in the statute, and if there is not a “reasonable” chance that one of these narrowly applies to the case in which you are seeking to redact, then there is no argument for withholding that piece of information. To summarize a large amount of information, there basically must be a "reasonable expectation" of interference with an enforcement proceeding or likely enforcement proceeding. The burden is on the agency that wishes to deny releasing a record to prove that an enforcement proceeding would be jeopardized, and precisely how that would occur. For the purposes of this exemption, caselaw has made clear that investigations are not “enforcement proceedings.” The exemption can only be applied when an enforcement proceeding has actually begun, or when there is a “concrete prospect” that an investigation in its final stages will lead to an enforcement proceeding.

TRADE SECRETS

As to the concern of whether or not the material you may be releasing is considered a "trade secret" for the purposes of the FOIA, please see the following guide I wrote in consultation with the Department of Justice's guidelines on using this exemption, Exemption 4.

Exemption 4 applies ONLY to information/documents submitted to government entities by private entities. So if that’s not the case, your office can’t claim this exemption. But if it is the case, the below bullets also apply and thusly limits the government’s ability to redact under the exemption.

- “Trade secret” has a fairly limited meaning: information that is generally not known in the trade, but is commercially valuable, secretly maintained, and is used for the making, preparing, compounding or processing of trade commodities. It must also be the end product of either innovation or substantial effort.
- To withhold documents as “commercial or financial information,” the government must be able to prove the information is “confidential.” However, a mere promise of confidentiality to the one who supplied the information does not merit use of this exemption. Courts have said that information is “confidential” only if its disclosure would be likely either (1) “to impair the government’s ability to obtain necessary information in the future” or (2) “to cause substantial harm to the competitive position” of the person from whom the information was obtained.
- “Substantial harm” itself has a limited definition: “data revealing assets, profits, losses and market shares, (or) detailed information filed to qualify for loans and government contracts.”

PRECECISIONAL-DELIBERATIVE

The part of Exemption 5 that refers to “pre decisional-deliberative” information has many guidelines and, like all exemptions, must be interpreted “narrowly.” The exemption:
- Can be used to withhold “advice, recommendations and opinions”
- CANNOT BE USED to withhold statements of fact. So if someone compiles a fact-based report, the only redact-able parts are those parts which are the opinion of the author.
- NO LONGER APPLIES if a decision-maker “clearly adopts the position set forth” in the deliberative document in question. (Question is, how would we know which position they took? Let’s ask OGIS.)
- “Final opinions” and “post-decisional” documents explaining an agency position are not exempt.
- Also DOES NOT APPLY if the original “source” of the information is not the government agency
- To withhold a piece of information, disclosure would have to “adversely affect the purposes of the exemption,” and to determine that, courts ask “whether the document is so candid or personal in nature that public disclosure is likely in the future to stifle honest and frank communication within the agency.”

REDACT, DON’T WITHHOLD

Lastly, we remind you of your burden to redact pieces of information and not to withhold entire pages on which exempt material may appear. This burden of yours is well outlined in caselaw.

If any whole piece correspondence is exempted, I request the metadata from that piece of correspondence—which includes things like to/from, date/time of sending, and the subject line. As a rule of thumb, metadata of this nature can almost never be redacted.

The requested documents will be made available to the public via our publication’s paid subscriber base, which is accessible to anyone. Our articles compile information based on our editorial judgement, qualifying us for status as a “media requester.” Our media company sells one thing and one thing only, which is subscriptions to receive our articles. Any “purpose” of our request must, then, be considered journalistic in nature, provided the request is meant only to inform our articles, which this request is.

As a request journalistic in nature, and coming from a media organization established as a publisher of noted journalism for more than five years, this request qualifies for a waiver of processing fees other than those incurred by copying or storage media. (We are willing to pay for copying and storage media.) Please treat this as our request for this fee waiver.

The Capitol Forum may not be well-known generally, but our work is widely read in the antitrust and consumer protection communities, including inside government agencies, law firms, and in academic settings. And in the same way you would consider any other media company, our function of informing the public must be considered over and above any pecuniary interest our company may have in obtaining the information we seek to inform our articles. (This guideline is clearly outlined in caselaw summaries published by the U.S. DOJ.) Some have in the past mistaken The Capitol Forum to be an investment advisor. We are no more an investment advisor than The Wall Street Journal. We never offer investment advice in our articles or otherwise, and we do not release any previously-unpublished information other than through our articles, which are sent to all our subscribers at once.

If you intend to acknowledge receipt of this request or give us a tracking number for this FOIA, please do so via the same means used to communicate this request to you. (For instance, a reply to the original email.)

We would prefer that any questions about the request be asked via the same communication method. However, if you need to explain or ask something complicated, you may call us at 202-813-1032, extension 120. We will memorialize phone conversations via email afterward. Do not send paper mail to Muckrock in Massachusetts, even if such an address included in boilerplate below. Any paper mail should be sent should be sent to my Washington, DC address, included below. But again, I strongly prefer that a digital communication is sent instead of, or concurrently with, any paper mail.

In the event there are copying fees, please inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically--by e-mail attachment, or if the response is too large, direct download link or mailed CD-ROM.

If mailing a CD, please alert us of this fact via reply email (so we know to wait on the post), and send the CD to:

c/o Brandon Smith
The Capitol Forum
1233 20th St NW Ste. 301
Washington, DC 20036

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 20 business days, as the statute requires.

Sincerely,

Brandon Smith
Correspondent
The Capitol Forum

From: foiarequests

Dear Mr. Smith,

Attached to this email is a copy of status update for the FOIA request you submitted. Did you receive a DODOIG tracking number with this request? If so, please provide.

Sincerely,

FOIA Team
Office of the Inspector General
Department of Defense
4800 Mark Center Drive
Alexandria, VA 22350-1500
Phone: 703-604-9616

This e-mail is from the Office of the Inspector General, Department of Defense, and may contain information that is "Law Enforcement Sensitive" {LES} or "For Official Use Only" {FOUO} or otherwise subject to the Privacy Act and/or legal and or other privileges that restrict release without appropriate legal authority.

From: Vikas Kumar

Good morning,

I am taking over this FOIA from Brandon, and it does not appear that we have been assigned a DoD OIG tracking number. Could you please provide one? Thank you for your assistance.

Regards,
Christine Kalpin
ckalpin@thecapitolforum.com
202-813-1040

From: foiarequests@dodig.mil

This message is to confirm your request submission to the FOIAonline application: View Request. Request information is as follows: (https://foiaonline.regulations.gov:443/foia/action/public/view/request?objectId=090004d28153bef0)
* Tracking Number: DODOIG-2017-000876
* Requester Name: Brandon Smith
* Date Submitted: 08/24/2017
* Request Status: Submitted
* Description: This is a request under the Freedom of Information Act. I hereby request the following records: Any and all conversations/communications with TransDigm from January 1, 2015 to the date of this request. I also request any documents in the possession of the DOD IG’s audit component, or either of its two investigative components, regarding TransDigm.

From: foiarequests@dodig.mil

08/24/2017
DODOIG-2017-000876
Dear Mr. Smith,

Please see attached.

Sincerely,
FOIA Team Department of Defense
Office of Inspector General

From: foiarequests

Dear Ms. Kalpin:

Attached please find our final response to your Freedom of Information Act (FOIA) request, received on August 24, 2017, for all conversations/communications with TransDigm from January 1, 2015 to July 14, 2017, as well as any documents in possession of the Department of Defense Office of Inspector General's Audit component or either of its two investigative components.

If you have any questions regarding this matter, please contact the DoD OIG FOIA Requester Service Center at 703-604-9775 or via email at foiarequests@dodig.mil.

Sincerely,
FOIA Requester Service Center
Office of Inspector General
Department of Defense

P. 703-604-9775
F. 571-372-7498
E. foiarequests@dodig.mil

This e-mail is from the Office of the Inspector General, Department of Defense, and may contain information that is "Law Enforcement Sensitive" {LES} or "For Official Use Only" {FOUO} or otherwise subject to the Privacy Act and/or legal and or other privileges that restrict release without appropriate legal authority.

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