FOIA Facts - The Unit Price RollercoasterBy Scott A. Hodes, Published on November 28, 2004
When I was a young FOIA attorney at the Department of Justice’s Office of
Information and Privacy (OIP), it was a far simpler time, especially in
regard to unit prices. When someone called OIP for advice about what to do
for a request about what do when they got a FOIA request for unit prices,
the reply was simple, “release them” we told callers.
Not anymore. At least not without a lot of analysis. All of the confusion stems from a pair of cases brought by McDonnell Douglas Corp. The first, McDonnell Douglas Corp. v. NASA, 180 F.3d 303 (D.C. Cir. 1999), reh’g en banc denied, No. 98-5251 (D.C. Cir. Oct. 6, 1999), put the concept of withholding unit prices in play.1 Three years later, in McDonnell Douglas Corp. v. United States Department of the Air Force, 215 F. Supp. 2d 200 (D.D.C. 2002), the District Court for the District of Columbia ruled that the government had made a detailed analysis and that release of unit prices would not cause substantial competitive harm to McDonnell Douglas. Unfortunately for those wishing for the simpler days of yore, the litigation did not end there. On appeal to the District Court of Appeals for the District of Columbia, McDonnell Douglas prevailed.
In McDonnell Douglas Corp. v. United States Department of the Air Force, 375 F.3d 1182 (D.C. Cir. 2004), a divided court held that two categories of CLIN prices could not be released despite the district court’s finding. The majority rejected the district court’s conclusion that the Air Force had properly found there was no substantial competitive harm in releasing two of these categories of prices at issue. A very strongly worded dissent by Judge Merrick Garland was also part of the decision.
This split decision only further complicates the unit price question. In early October, the government filed a petition for rehearing and suggested that the case be heard en banc (heard by all of the Judges for the D.C. Court of Appeals). Thus, confusion on this issue will reign at last until there is resolution of this matter by either the entire D.C. Circuit, or the Supreme Court. The rules as they currently exist from the two McDonnell Douglas cases are difficult for agencies to understand and follow. The Department of Justice won’t issue definitive guidance until they know if the decision in the second McDonnell Douglas case is the actual conclusive ruling on this issue. Unfortunately, for FOIA requesters, submitters and agency personnel, the day Department of Justice (and the rest of the FOIA community) knows if the McDonnell Douglas II is the law with regard to unit prices may be a long way off.
1 The term “unit prices” is used in the FOIA context interchangeably with the term “contract line item number (CLIN) prices.”