ST EP"T 0 E &J 0
ATTORNEYS

H NSON LLP
AT I.AW

1330 ConnecticUt Avellue. NW
Washington. DC 20(J36·1795

Mich<lel T. Cershberg
202:42g.6208

Tel 202,429.}oOO
fax 202.4l93902

mgershberg@steproe.com

steproe.com

, .,

September J5, 2009
Via Facsimile and Federal Express

Mr. William E. Eordley
Associate General CounselfFOIPA Officer
Office of Genera) COWlSel
United States Marshals Service
600 Army Navy Drive
Arlington, VA 222024210
Dear Mr. Bordley:
Re:

Freedom of Information Act Request No. 2009USMS13662

This letter is submitted on behalf of our client, Yahooi Inc. ("'Yahoo!"). and in response
to your letter to Yahoo! dated' August 25, 2009, regarding a request for release of information
under the 'Freedom of Information Act (HFOIA"). Pursuant to 28 C.P.R. § 16.8(1), Yahoo!
submits- this objection to the disclosure of its business information. The information described
below is confidential c~mmercial information and therefore covered by Exemption 4 to the
FOIA and the Trade Secrets-Act, 18 V.S.c. § 1905.
The FOIA request at issue seeks release of information detailing the amount of money
paid by the U.S. Marshals Service (HUSMS") to Internet-based service providers to compensate
. . .. . - - . for the cos! of ~esP.QI!dlI1gJo la~_~1fQ~·~eltt~lJ,t~:~qll~tSjpU·~QQf.(:ts,_ USMS._has_determinedJhaJ
. _._.--_.- --- ---Yahoof's cost reimbursement policy, which is part of the Yahoo! Compliance Guide for Law
Enforcement, may be responsive to this request. Yahoo! assumes that the single page included
in the Notice to Submitter of Busines$ Infonnarion is the only information submitted by Yahou!
to USMS that the.agency is contemplating releasing pursuant to this FOIA request. If this is not
the case, please let us know immediately so that we may fonnally object to any additional
disclosure. Any other Yahoot submissions that USMS may consider responsive to this FOlA
request are also confidential or law enforcement-sensitive and therefore exempt from disclosUIC.
Information contained in this letter is customarily kept confidential by Yahoo!.
Moreover, release of this letter would likely cause substantial competitive harm to YabOQ! as
well as impair the goveinment's ability TO obtain information necessary for making appropriate: decisions with regard 10 future FOIA r~qLlesls. Accordingly, this letter is protected from public

WASHINGTON

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NEW YORK

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CHICAGO

•

PHOE,\,IX

•

lOS IINGF.lES

•

CENTURY CIlY

•

LONDON

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BRUSSELS

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I :
I

i

Mr. WiJJiam E. Bordley
September 1'5, 2009
page 2

STEPTOE &JOHNSONLl'

release by FOIA Exemption 4 and the Trade Secrets Act. In the event the USMS either receives
a request for disclosure of this letter, or otherwise considers making a decision to release it, we
.req~est immediate notice of such request or decision, at least ten working days prior to any
release.

ANALYSIS
I.

Exemption 4 Applies to Yahoo! '8 Cost Reimbursement Policy

Exemption 4 of the FOlA pr91ccts ''trade secrets and commercial or financial information
obtained from a person {that is} privileged or confidential" from disclosure under the FOlA.]
Thus, in order for infounation in federal agency records to fall within the· second broad CategOl y
of Exemption 4, it must be: (1) commercial or financial; (2) obtained from a person; and (3)
privileged .or confidential. Yahoo!'s cost reimbursement policy meets all three criteriaA.

"Commercial or Financial"

.
If infonnation reIates to busine.ss or trade, it is "commercial or fmandal." These terms
are to be given their "ordinary me.anings.,,2 Therefore, recor~ are commercial a~ long as the
.
submitter has a "commercial interest" in them. 3
Under this standard, Yahoo~'s cost infor.ination and is clearly "commercial" information.
Yahoo! certainly has a commercial interest in its cost and pricing data, which courts have
repeatedly found to constitute commercial information. "Unquestionably, information relating to
pricing and technical designs constitutes commercial or fmandal information within the meaning
of the exemption.,,4 Yaboo!'s cost reimbursement rates are also derived from its labor rates for
. the relevant employees, plus overhead. This information is within the scope of Exemption 4.5

J

.

5 U.S.C. § 552(b)(4).

..... .. . .~·Pub- Citiz.en Health Research Group v. FDA, 704 F.2d 1280, 1290 (D.C. CiT. 1983)

-- _._._. --.. -----·-TCiliiIg WilSll. PosfCo~ -V:-HHS~-690-F2(r252~2ob·(D:C~Cii~-19-82),-an(1 B(CorTradev~-··-·_- - ..._-- -- - --Commodity Futures Tradine: Cornm'!-~, 627 F.2d 392,403 (D.C. Cil'. 1980» (preventing
discJos~e of confidential

data [roIl! ;:;Enicaltests).

.

3 !d.

4 Landfairv. U.S. Dep't of AmlV, 645 F. Supp. 325, 328 (D.D.C. 1986)~ see also. e.g.,
. Cortez III Servo Corp. v. NASA, 921 F. Supp. 8 (D.D.C. 1996) (fmding cost data to be
confidential commercial infonnation).
5 See McDonnell Douglas Com. v. NASA, 180 F.3d 303 (D.C. Cir. 1999) (preventing
release of labor rates and overhead figures under Exemption 4).

Mr. William E. BordJey
September 15, 2009
page 3

B.

STEPTOE &jOHNSONm

"Obtained From a Person"

The requirement that the information be "obtained from a person" is also met here. The
term "person" refers to a wide range of entities, including corporations and other business
organizations. 6 As a corporation, Yahoo! is considered a "person."
.

c.

''Privileged or Confidential"

As noted in USMS' August 25 letter, the "confidential" prong of the third requirement L'3
analyzed under two separate standards, either of which is sufficient to satisfy tlle requirements of
Exemption 4. First, under the long-s.randing test set forth in National Parks & Conservation
Ass'n v. Morton:
Commercial or t1nancial maner is "confidential" for plUposes of the exemption if
disclosure of the information is likely to have either of the following effects: (I)
to impair thc.Govemmenfs 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. 7

.

.

Second, in Critical Mass Energy Project: v. NRC, the D.C. Circuit amended the National Parks
test for cases in. which the submission to a federal agency is voluntary. Under this test,
. informmion is' protected by Exemption 4 if it is voluntary submitted to an agency and it is of a
kind that the submitter "customarily" would not disclose to the public. 8 The test was left
unchanged in cases of compelled submissions. Specifically, Critical Mass af:fillned the National
Parks test ~or "determining the confidentiality of information submitted under compulsion," but
was aDnoundrig a categorical rule [or me protection of information provided OJl a voluntary
bashl. 9
.

_

,

Yahoo! submitted its cost rClInbursement policy to .USMS voluntarily and satisfies the
Critical Mass standard for determining confidentiality. Moreover, even if USMS were 10
conclude that this infonn~tjon were not submitted voluntarily for pmposes of the Critical Mass
test, the infonnatio~ would still satisfy the National Parks standard. Therefore, Yahoo!'s
ip:((m:~atio~.is ~~:v~r.t:~ ~y ~?'C:Tl?ptj~l~ 4.
.. .
, .. _ .

------------_ ... -

-~~-----

See. e.g., Nadler v. FDIC, 92 F.3d 93, 95 (2nd Cir. 1996) (tenn "person" includes "an
individual, partnership, corporation, association, or public Or private organization other than an
agency" (quoting defInition in Ad;Ulinistrative Procepure Act,S U.S.C. § 551(2))).
6

7

National Parks & Conservation Ass'n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974).

8 Critical

Mass Energy Project v. NRC. 975 F.2d 871, 879 (D.C. Cir. 1992) (en bane),
cert. denieg, 507 U.S. 984 (1993).
.

9Id:

Mr. WilliamE. Boniley
september ] 5, 2009
page 4
1.

STEPTOE &JOHNSONLl.I'

Critical 2'vfass St.andard

As stated above, in Critical Mass, the D.C. Circuit held that information is '''confidential'
for the purpose of Exemption 4 jf it b of a kind that would customarily not be released to the
public by the person from whom it was obtained."lo The threshold inquiry under this analysis IS
whether information was submitted t.o a government agency voluntarily or whether it was
co~pelled.

Although the D.C. Circuit did rlot defIne a "voluntary" submission of infonnation, the
U.S. Deparlment of Justice has issued policy guidance on this issue. Specifically, the relevant
inquires are the foHowing questions: "Did the agency hold tJle legal authority to require that
information submission and, if so, did it in fact exercise that authority in obtaining that
information?,,11 While goveminent agencies exercise legal authority to collect infomlation in
various ways, the "key question l.)Ilder Critical Mass is whether those who choose to participate
in the activity have information-submission requirements placed upon them as a lawful condition
of their participation in that activity or an ageney;s related administrative process:,12, If a .
submitter is under no obligation to provide the information, then it is considered to be submitted
voluntarily.

The second question in DOl's policy guidance is equally important, however. "Under
Critical Mass, it i~ possible that an agency might hold the authority to require submission of .
certain information, but not have exercised that authority.... Such unexercised authority, or the
mere 'power to compel' certain submissions, does not constitute an enforced 'requirement'which leaves any submission that is made under those circumstances an entirely "voluntary" Oue
,,13

.

.

.

'.

Under this standard, Yahoo! $ubmitted its cost reimbursement policy voluntarily. Yahoo!
distributes this information to law' enforcement agencies in various ways. It periodically
dis?,ibutes this infonnation as part of its "Compliance Guide for Law Enforcement"'(and updates
thereto) exclusively to law entities, Licluding various law enforcement agencies on its ma.iling
list. It also sends the Compliance Guide to law enforcement agencies thaL are not on its mailing
~-..:.'-=.:..:.' '-=-=-=-=:,-::::,,:,·.l!§L~~t h~~~_requ.-!:.~~~(l~_J;QPY..: - 'Y..ahoQ.L~_so vol~m1AriIy.Q~strJbuteLth~.Q9mpJiaIt~Quide tQJ..'!-w ~~'_'':'':'~_:':''::''
enforcement agencies through the N<1tional Center for Missing and Exploited Children
("NCMEC") and through law enforcement t;raining sessions and conferences. See enclosed
10

Jd.

11 FOIA Update, Vol. XIV, No.2, at 6~7 ("Exemption 4 Under Critical Mass: Step-ByStep Decisionmaking").
.

12 Id.
13

Id.

_

Mr. William E. Bordley
September 15,2009
page 5

STEPTO E &)OHNSON IV

b (,0 Affidavit 0

at '1f 5. Yahoo!' s Compliance Guide for Law Bnforcement,
whieh includes the cost reimbm'sement policy, is sent to law enforcement agencies that may deal
with Yahoo! to provide advance information about Yahoo!'s policies and a rough guide to cost~
that may be billed to these agencies for Yahoo!'s costs incurred responding to legal process.

.. .
.

I

This cost reimbursement policy is not provided to agencies along with Y aboo!' s bills OJ .
invoices for responding to legal process. It is not sent as part of, or in relation 10, any transaction
with a government agency. Rather, Yahoo! distributes the infonnation on a purely voluntary
basis as advance notice and guidance to law enforcement agencies. It is not sent in response to a
government mandate or as a condition [0 participating in any activity. USMS does not require
Yahoo! to submit such data in order to seek reimbursement for compliance costs, and has not
requested the infonnation in this context. USMS simply has hot placed any infonnationsubmission requiremel1t on Yaboo! in any way, and provision of the cost reimbursement polic)'
to the USMS was not a condition to participating in any transaction or activity. See Affidavit of

t16.
Moreover, even ifUSMS possessed the legal authority to compel submission ofYahoo~'s
cost reimbursement policy, it did not exercise such authority in this case. U S M _ e
. rmation by regulation, subpoena, or any informallllandate. See Affidavit 0
r7. Therefore, this case is similar to Critical Mass itself, in which the D. . lIcua
at e unexercised "power to compel" rendered a submission voluntary. 14

.

b (P .

Since Yahoo!'s cost reimbursement policy was voluntarily submitted, it is protected

under Exemption 4 as "confidential" iilfonnation as long as "it is of a kind that would

customarily nofbe reI~ased to tlle public by the person from whom it was obtained."lS This
standard has uniformly been interpreled to refer to the treatment that the specific submitter
affords the information, not the treatment afforded similar infonnation by the industry as a
.
.
whole. J6
Applying this standard, the cosr reimbursement policy must be treated as confidential
because Yahoo! does not customarily relea..c;e this information to the public. Yahoo! does not
disclose compliance or cost reimbursement data· to the public and has a. policy against doing so.
--:~:- -_:::'=':'='_:::==::=:~This-irtfoi'nlatiorns ·provideaoiitside.. .on:he. cOinpany- oilly t<nawenfOi'CCmclitagencies_wjth.-_-=-=·~-_-:..~ '_" '_-'~_'.:"-See Critical Mass, 975 F.2d m 880 ("Nor do we see any reason to interfere with the
NRC's exercise of its own discretion in determining how it can best secure lhe infonnation it
. ,
needs.").
14

15

rd. at 879. .

16 See id. at 872, 878-90; see 3}:;0, g., etr. for Auto Safety v. NJITSA, 244 F.3d 144.
148 (D.C. Cir. 2001) (emphasizing that "in assessing customary disclosure, the court will
consider how the particular party cusT.omarily treats the infonnation, not how the industry as a
whole treats the infonnation").

Mr_ William E. Bordley

STEPTOE &JOHNSON.LlP

September 15, 2009
page 6
which Yaboo! deals. Yaboo!) s Compliance Guide for Law Enforcement, inclusive of the cost
reimbursement policy, is explicitly marked with a warning1hat the information is not to be
t CJI. 4. b fp
distributed outside law enforcement agencies. See Affidavit 0
Yahoo! receives requests for assistance from many different law enforcement agencies,
all of whom rely on Yahoo! 's strict policy of maintaining confidentiality about how it works with
law enforcement We believe that th.is policy serves the public interest, and we will continue to
abide by it.
For these reasons, the information at issue here satisfies the Critical Mass test for
confidential infonnation, and is therefore protected from disclosure under Exemption 4 of the
FOJA.

2,

National Parks Standard

The analysis above establishes that Yahoo!'s cost reimbursement policy is "confidential"
within the meaning of Exemption 4 under the Critical Mass.test However, ifUSMS were to.
determine that the Critical Mass test is inapplicable because the infonnatioll was not voluntarily
submitted (and there is no basis fa! such a conclusion), it should still be consid~red confidential
information covered by Exemption 4 under the. National Parks tests.
As noted' above. the National Parks test is e~pJicitly di~j1lllctive; information will be .
.
considered confidential'; and therefore within the scope of Exemption 4; if jt satisfies ~i1her one .
of test's two parts. The fIrst part is ~'1own as the '·impairment prong," while the second part is
known as the "competitive harm prong." Yahoo~' s cost reimbursement policy satisfies both
prongs of the test. - .

a.

Impairment Prong

The impairment prong applies 111 situations, such as here, in which disclosure under the
.FOIA would lead to the submissio\l of less complete information. Yahoo! provides its cost
reimbursement policy, and its entire Cumpliance Guide for Law Enforcement, voluntarily lO law
_ .
_.e.n.fQ:r::c.ement_agencies,_sueh.as.USMS,.tO..assist.the agencies.in.their planning and. to proYide '"
_ _
-_....-- -- _.. .. - ---them 'with a guide- as to p"6feiitialcompfiance'COSIS associatcd witli IDvest1gatioil.- However, -_ - -..,-.-. - - ..
Yaboo! is not required to submit this infonnation in order to seek reimbu.rsement for compliance
costs. Nor is Yahoo! required to provide detailed information regarding its services and data
retention policies to assist law enfor~emen[ with hlternet-based investigations. If Y MOO! kne~
that this type of voluntarily submitted cost and compliance data would be publicly disclosed, it')
incentives would change. YalIoo! may conclude that the benefits That eome from providing
. educational and training material t.o law enforcement entities, namely that they cm better plan
·how and when to use legal process in Internet investigations appropriately, arc outweighed by
the potential for criticism and competitive harm.

Mr. William E. Bordley
September 15,2009
page 7

hU

STEPTOE &)OHNSONIIP

Federal courts have recognized that Exemption-4 applies in instance.~ where disclosure of
information might encourage parties to be less forthcoming in their submissiom 17 or in order to
"foster[] the provision of full and accurate infonnation."~8 These court decisions demonstrate
that release -of information such as the cost information would place on Yaboo! a disincentive to
the fullest, most detailed compliance-related data. See Affidavit o(
J 1_
IIIIIIIrt~8.
tJ~

-==-

p

Therefore, the govennnenf s interest in collecting compliance-related infonnation is bet.t
served by protecting Yaboo!' s cost reimbursement data from disclo~UIe.J9 To release this
information would impair USMS' ability Lo gather the most complete data possible.

In addition, if the USMS were to disclose this cost data, then Intemet·based service
providers would doubt the confidentiality of similar data submitted to other federal law
enforcement agencies. That would neg3tiveJy affecL the government's ability to collect complete
information from a wide range of companies and submissions.

b.

Competitive Harm Prong

Under the "competjtive ~arm prong," it is not necessary to show actual competitive hann.
This prong requires only "actual competition and a likelihood of /Substantial competitive
injury:. ,,20 To show coJT1pet~tiveharm, the FOIA requires only a reasonable discussion of the

!I'See; e.g., FlightSafety Sen's. v. Dep't of Labor. 326 F.3d 607,612 (51b Cir. 2003) (per
curiam) (protecting data because disclosure "presents a serious risk that sensitive business
information could be attributed to a particular submitting business [and such] attribution would
indisputably impair [the agency's] future ability to obtain similar infonnation flom businesses
[that) provide it Wlder an explicit undersTanding that such information will be treated
confidentially"); Bowen v. FDA. 925 f.2d 1225, 1228 (9th CiT. 1991) (protecting information
upon which agencies relied heavily and would be less likely to obtain if businesses feared that jt
_ _ _w_ould be m!3-d~J?~1?~~.
.__
- 18 Afr. Fund v. Mosbacher, No. 92-289, 1993 WL 183736, at *7 (S.D.N.Y. May 26,
1993) (pr9lecting information submitted with export license applications).
19 See Judicial Watch, Inc. v. Exp.-Imp. Bank, 108 F. Supp. 2d 19,30 (D.D.C. 2000)
("The government has a compelling interest in ensuring that the infonnation it receives is of the
highest qUality and reliability, and disclosure of potentially sensitive commercial and fInancial
information, even where submissions of infommtion are mandatory, wouldjeop~di7.ethe Bank's
ability to rely on such information thar is submitted.',).
20 CNA Financial Corp. v. Donovan, 830 F.2d 1132, 1152 (D.C. Cir. 1987), celt. deT)iec~
485 U.S. 977 (1988).
-

Mr. William E. BordJey
September 15.. 2009
page 8

STEPTOE &JOHNSONu.p

n
likelihood and nature of harm that could result from disclosure.: Competitive harm has even
been found in cases where some of the infolmation at issue is already publicly available. In one
case, the federal district court for the District of Columbia stated that infonnation made available
in a different context because of overseas markcting is "different," and that fact "does not
22
diminish {the submitter's} claim of competitive commercial hann from disclosure.n
.
First, Yahoo! is in direct, actual competition wjth other providers of Jnternet-based
services such email and search engines. Yaboo! competes with other providers for users and
advertisers. Second, Yahoo! will suffer substantial competitive injury if its cost data and
compliance policy infonnation is relf:£lsed. As courts have often held, the release of cost,
overhead, and labor rate information (or data from whieh such information may be derived) is
13
likely to cause competitive harm.
Moreover, the FOIA request itself demonstrates the requester's own expectation that
disclosure of this data will cause injury to Yahoo! and its reputation. -In the FOIA request, Mr.
Soghoian refers to his blog, http://paranoia.dubfltc.net. A quick review of this blog indicates that
Mr. Soghoian "use[s] this blog to shame the corporations that continue to do harm to user online·
privacy.',24 He goes on to describe the intent of FOIA requests like the one at issue here:
"Wc need transparency, sunshine, and som~ accountability. If users realized how
often their data is disclosed to police, and how often it occurs without a warrant or
.

.

.

'See GC Micro Corn. v. Defense Logistics Agency, 33 F.3d 1109, 11 J5 (9th Cir. 1994)
(n {T} he law does not require {agency} to engage in a sophisticated economic analysis of the
substanti~ c:=ompetitive harm ... that might result from disclosure"); Pub. Citizen Health
Research Group. 704 F.2d at 1291 ("Under the second prong of this test .. _the court need not
conduct a sophisticated economic analysis of the likely effects of disclosure.").
• ·2)

22 Pub. Citizen Health Research Group v. FDA, 997 F. Supp. 56,66 (D. D.C. 1998),
affiJJl1ed in part and reversed in pall Oli other grounds, 185 F.3d 898 (D.C.Cir. 1999); see also
Martin Marietta C01p. Y. Dalton, 974 F. Supp. 37, 40 (D.D.C. 1997) (holding that a prior limitccl
. release of infonnation does not "lessen the likelihood that {the submitter} might suffer
eompetitiv.e.har:m..Jf_i.t_.is_disclosed_agai.l~ ....th.is-time-at--the-behest-ef-aslmowledged·conunercial----

_ .
. ----.-.-.
.---- adversarIes"i.---- . -- -- .._.----_.-----.-----. . ... .
23

.'0

•

-

-

-_..

•

•• - -

---.--

- - _ •• -

-

_...

---

--

- - • •-- •••

See McDonnell Douglas Corp. v. NASA, 180 F.3d 303 (D.C. CiT. J999) (holding thaI.

release of labor rates and overhead figures could case competitive harm); Westinghouse EIeclric
Corp. v. Schlesinger, 542 "F.2d 1190, 1198 (4P1 Cir, 1976) (affinning decision not to disclose
information that would allow competitors to perform cost-price analysis); Canadian Commercil~
Corp. v. U.S. Dep't of the Air FOl~ce, 514 F.3d 37 (D.C. Cir. 2008) (ordering agency not to
disclose cost and price data submined in a contract bid because of likelihood of competitive
harm).
24 http://paranoia.dubfire.net/(Aug.

17,2009).

- . - - - ••

-

Mr. William E. Eardley
September 15, 2009
page 9

STEPTOE &jOHNSONLLP

any judicial oversight; many would be shocked. So -- if you work in the privacy,
legal or policy department of a major Intemet provider (as I know a few of my
readers do), consider this your warning. You either need to come clean
voluntarily, or the infonnation will be forced out. ... My fITst avenue of attack
will be via a number of FOIA requests [] -- if that fails. I'll have to ramp things up
a bit. The currel?-t level of secrecy is simply not acceptable.'t25
It is reasonable to assume from these comments that the infonnat.ion. if disclosed, would be used
to "shame" Yaboo! and other companies -- and to "shock" their customers. Therefore, release of
Yahoo!'s infonnation is reasonably like.ly to lead to impairment of its reputation for protection of
user privacy and security, which is a competitive disadvantage [or technology companies.

The Trade Secrets Act Prohibits Disclosure of Yahoo! 7S Cost Data

ll.

It is well settled that under the Trade Secrete; Act, 18 U.S.c. § 1905, the government may
not disclose information that falls within FOIA Exemption 4?6 Thus, "whenever a party
succeeds in d~monstrating that materials fall within' Exemption 4, the government is precluded
from releasing information by. virtue of the Trade Secrets Act...27 As explained above, the
confidential commercial information Yahoo! seeks to protect from disclosure comes within
FOIA Ex.emption 4. Consequently, disclosure afthat infonnation by USMS would violate the
Trade Secrets Act.

ID.

Yahoo!'s Cost Reimb~rsementPolicy Is Not Responsive to the FOIA Request

Finally, while USMS need nor reach this issue based on the foregoing analysis, y:ahoo I
believes that its cost reimbursement policy is not responsive to the FOIA request. The request
solicited "infomiation detailing the amolmt of money paid by the U.S. Marshals Service to major
providers of Internet based services" and '''price lists' detailing the standard prices for various
fonus of surveillance.,,28 The information at issue, however, expressly states that the data are
The actual amounm invoiced by
2S

.

http://paranoia.dubfrre.net/search?updated-max=2009-06-24T15%3A57%3AOO·
----.-_... 04%3AOO&max=resu1ts=:5-(:Tttne-H)~009).
.... _-..- .. _.- .. - ...._..._--. . ...-'-.-...--.-.--..-_.-26

See,~, 'McDonnell Douglas Corp. v. U.S. Dep't of the Air Force, 375 F.3d 1182,

'1185-86 (D.C. Cir. 2004) ("The Trade Secrets Act ... the scope of which is at least coextensive
with Exemption 4, effectively prohibits an agency from releasing infOlmation subject to the
exemption." (internal citations omitted)); sec also McDonnell Douglas Corp. v. WidnalI, 57 F.3d
1162, 11~4 (D.C. eir. 1995).
27

Wldnall, 57 F.3d at 1164; accord Canadian Commercial Corp., 514 F.3d at 39.

28 Letter from Christopher Soghoian to U.S. Marshals Service regarding FOIA Request
(June 25, 2009).

STEPTO E &Jo H r~ SO N LL'

Mr. William E. :Bordley
September 15,2009
pag~ 10

Yaboo! do not appear in this document. Therefore, these data do not detail the actual amounts
USMS paid to Yaboo! for responding to law enforcement requests. Nor does this information
constitute a price list or other detailing of standard prices invoiced to USMS. As Yahoo!'s
infonnation makes clear. there are no standard prices for these transactions.
Moreover, the page number on !.he bonom of the cost reimbursement policy, the Roman
numbering of the chapter, and the positioning of the policy on t1;le page, indicate that it is part of
a larger document. Were Yahoo!'!,; dala to be disclosed, this implicit infomls6ou would
necessalily be disclosed as well. This additional infolmation is not responsive to the FOIA
request, however, and its release would be prejudicial to Yahoo!. It would forcseeably lead to an
effort to obtain the larger document (that is, Yahoo!'s Compliance Guide for Law Enforcement)
either through additional FOIA requests or through oth~r means, something !.hal is inappropriate
and beyond the scope of the original narrow request.
Accordingly, Yaboo! 's C05t reimbursement poliey is not directly responsive to the ForA
request, and should not be disclosed independently of Exemption 4.

CONCLUSION
, For all the above reasons, release of Yahoo!'s cost reimbursement policy is not pennitt~:d
under the FOJA. We appreciate your detailed consideration of the preceding legal analysis. Jf
yOll have any questions, please do not hesitate to contact me at '(202) 429-6208.

Respcctfi~ny submitted,

~{J~--Michael T~ Gershberg
Counsel to Yahoo! Inc_
Enclosure: '
Affidavit of

.-

bCo

Affidavit 0

I,

Cio hereby declare as follows:

t Yahoo! !nc. ("Yahoo!"), which is a publicly listed
U.S. company ea quarter at 1 lrst Avenue, Sunnyvale, California 94089. Yahoo! is a
global Internet business and consumer services company offering a comprehensive branded
network ofproperties and services such as email, a search engine, and social media sites.
1.

t Yahoo! for eleven years. One ofmy current responsibilities as

s managing a team ofparalegals and legal assistants who respond
p
reque
or u scriber infolmation. During this time I have beconle familiar with
the policies and procedures for the handling of confidential commercial information.
o

3. I am providing this affidavit in connection with tbe U.S. Marshals Service's ("USMS")
Notice to Submitter of Business Infolmation, sent to Yahoo! on August 25,2009. The
infonnation at issue is Yaboo!'s cost reimbursement policy for responding to law enforcement
"
requests, which is part ofthe Yaboo ~ Compliance Guide for Law Enforcement.
4. Because bfthe potential for competitive harm, Yahoo! has an established business practice of

keeping confidential all commercial or financial information of111e type contained in its cost
reimbursement policy. This information is not customarily released to the pUblic. In fact, it is
only distributed to law enforcement agencies, and Yahoo! has a policy against distributing such
information to any party outside of law enforcement. The document containing Yaboo!'s cost"
reimbursement policy is' clearly marked as follows:"
.

This compliance guide is designed to assist Jaw enforcement in understanding
Yahoo!'s policies and practices with regard to retention and disclosure of
electronic infonnation and to provide answers to frequently asked questions
related to subpoenas and other legal process. The policies and procedures in this
guide are subject to change without notice, and this document is not meant to be
distributed to individuals or organizations that are ·not law enforcement
entities~ including YahOD! customers, consumers, or civiJ litigants. (emphasis in
original)
.. . _.

...

..

5. Yahoo! voluntarily provided its cost reimbursement policy, as part of its Cornpliance Guide,
to USMS. Yahoo! periodicallY distributes its Compliance Guide to various law enforcement
agencies on its mailing list Yahoo! also voluntarily distributes the guide to law enforcement
agencies through the National Center for ::v1issing and Exploited Childr~l1 ("NeMEC") and
through Jaw enforcement training sessions and conferences. In each instance, this information if:
provided voluntarily and restricted to law enforcement personnel.
6. Yahoo! does not submit its cost reimbursement policy to law enforcement agencies along
with its invoices for responding to legal process. The transmission oftbis information does not
occur in connection with any transaction with a government agency. Law enforcement agencies

do not require Yahoo! to submit such data ill order to seek reimbursement for reporting costs,
and to the best ofmy knowledge: USMS has not requested the information in that context.

Page 1 of2

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7. Yahoo! does Dot provide its cost reimburSeJ.nent policy to any government agency in
response to a request pursuant to any legal authority. In particular, this information has not been
submitted to USMS }JU!suant to a statute, regulation, subpoena, or other legal requirement. Nor
has the information been submitted pursuant to an infoImal mandate, or as a requirement of, o~
condition to, any activity or interaction.
8. IfUSMS decides or were ordered to disclose Yahoo!'s cost reimbursement policy, it would
impair the government's ability to obtain similar information in the future. Yahoo! voluntarily
submits this information to USMS and other law enforcement agencies with the reasonable
expectation that it will be kept confidential and not released to the public. IfYahoo!'s cost
reimbursement policy were disclosed to the public, then Yahoo! might have a disincentive to
submit the same or similar cost and compl.iance-related informa~on to USMS or other law
enforcement agencies in the future. Such result. would directly impair the govemment's ability
to obtain complete and accm-ate infOl1nation, as Yahoo! might decide not to pro,\'ide its entire
Compliance Guide to government entities.
I declare under penalty ofpeIjury that the foregoing is true and correct.
Executed this 14th day of September 2009.

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