Description of document: Periodic reports on Army entertainment liaison activities from Oct 2004 – Oct 2005 Requested date: 21-October-2005 Released date: 27-January-2007 Posted date: 03-January-2007 Title of Document Weekly Significant Activities Report, CROD-LA Weekly reports: Monday 4 October 2004 – Sunday 16 October 2005 Date/date range of document: 04-October-2004 – 6-October-2005 Source of document: Department of the Army Contracting Center of Excellence Army Contracting Agency 5200 Army Pentagon Washington, DC 20310-5200 The governmentattic.org web site (“the site”) is noncommercial and free to the public. The site and materials made available on the site, such as this file, are for reference only. The governmentattic.org web site and its principals have made every effort to make this information as complete and as accurate as possible, however, there may be mistakes and omissions, both typographical and in content. The governmentattic.org web site and its principals shall have neither liability nor responsibility to any person or entity with respect to any loss or damage caused, or alleged to have been caused, directly or indirectly, by the information provided on the governmentattic.org web site or in this file. DEPARTMENT OF THE ARMY CONTRACTING CENTER OF EXCELLENCE ARMY CONTRACTING AGENCY 5200 ARMY PENTAGON WASHINGTON, DC 20310-5200 JANUARY 27, 2007 CHIEF ATTORNEY & LEGAL SERVICES Re: FOIA Identification No. 06-054 This letter is in response to your Freedom of Information Act (FOIA) request, dated October 21, 2005, for copies of the periodic reporting on Army entertainment liaison activities for the time period from October 1, 2004 to the date of your request. You later verbally advised our office via telephone that the scope of your request should be interpreted to include both entertainment and documentary projects. We have reviewed the available documents and enclose them to you with partial redactions. The partial redactions encompass information that is considered exempt from disclosure under Title 5 United States Code Section 552 (b)(2), b(4), and (b)(6). The withholdings and redactions are summarized below. Exemption (b)(2): The information you requested includes internal trivial administrative material of no genuine public interest and is automatically exempt under Exemption (b)(2). 5 U.S.C. §552(b)(2), see also, Schiller v. NLRB, 964 F.2d 1205, 1207 (D.C. Cir. 1992). We are withholding trivial administrative matters when appropriate as there is no genuine public interest in personnel, meetings, or other routine administrative matters. Exemption (b)(4): Exemption (b)(4) of the FOIA protects from disclosure "trade seci-ets and commercial or financial information obtained from a person and privileged or confidential." 5 U.S.C. § 552(b)(4)(1996 & Supp. 1 2002). For purposes of Exemption (b)(4), the Court of Appeals for the District of Columbia Circuit in Public Citizen Health Research Group v. FDA has adopted a narrow "common law" definition of the term "trade secret" that differs from the broad definition used in the Restatement of Torts. 704 F.2d 1280, 1288 (D.C. Cir. 1983). The D.C. Circuit’s decision in Public Citizen represented a distinct departure from what until then had been almost universally accepted by the courts--that "trade secret" is a broad term extending to virtually any information that provides a competitive advantage. In Public Citizen., the term "trade secret" was narrowly defined as "a secret, commercially valuable plan, formula, process, or device that is used for the making, preparing, compounding, or processing of trade commodities and that can be said to be the end product of either innovation or substantial effort." This definition requires that there be a "direct relationship" between the trade secret and the productive process. We are withholding storyline, plot, and crew information from currently unreleased projects under Exemption (b)(4). Story ideas are valuable resources fought over by various production companies and their commercial value in part depends on keeping them secret. The viability of a project may often depend on the quality and uniqueness of the basic story as well as the supporting crew. That crew will directly interpret the story, creating a marketable final work that is unmistakably the "product of... innovation [and] substantial effort." The plot and crew of an unreleased project are therefore protected trade secrets under Exemption (b)(4) Exemption (b)(5): We have also withheld some information under the deliberative process privilege of exemption (b)(5) of the FOIA. See 5 U.S.C. § 552 (b)(5). The purpose of this privilege is to protect the quality of agency decisions by encouraging frank and open discussions of agency decisions by encouraging frank and open discussions of agency policy. See Jordan v. United States Dep’t of Justice, 591 F.2d 753, 772-73 (D.C. Cir. 1978). A District of Columbia Court of Appeals decision explains when deliberative process information should be withheld. The information must be 1) predecisional and 2) deliberative in nature. See Mapother v. Dep’t of Justice, 3 F.3d 1533, 1537 (D.C. Cir. 1993). First, the document must be predecisional or "antecedent to the adoption of an agency policy." Jordan v. United States Dep’t of Justice, 591 F.2d at 774. These weekly reports were not only reports of decisions made whether and how to support a project, but reports of contacts made in preparation of reaching a decision. Second, the document must be deliberative in nature, meaning it is "a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters." Vaughn v. Rosen, 523 F.2d 1136, 1143-44 (D.C. Cir. 1975). In this case, parts of the reports contain indications of probable courses of action and tentative rationales for choosing them. Because these rationales may or may not have been used in Army’s final decision-making process, the information is deliberative in nature. Courts have established a low threshold for agencies in the determination of whether a document is pre-decisional. The agency must merely establish "what deliberative process is involved and the role played by the documents in issue in the course of that process." Coastal States Gas Corp. v. Dept. of Energy, 617 F.2d 854, 868 (D.C. Cir. 1980). In this case, the reports contain information relating to the evaluation of requests for Army support. They contain flank opinions and recommendations that do not necessarily represent the views of the Department of the Army on complex and controversial issues. Revealing this information may inhibit candor in the decision-making process. Therefore, the threshold set forth in Coastal States has been met. Exemption (b)(6): Exemption (b)(6) of the FOIA protects from mandatory disclosure "personnel and medical files the disclosure of which would constitute a clearly unwarranted invasion of privacy." 5 U.S.C. § 552(b)(6) (1996 & Supp. 1 2002). To qualify for protection under Exemption (b)(6), records must meet two criteria: (1) they must be "personnel and medical files and similar files," (2) the disclosure of which "would constitute a clearly unwarranted invasion of personal privacy." Id; U.S. Dep’t of State v. Washington Post Co., 456 U.S. 595, 599-603 (1982). Regarding the first prong, the Supreme Court has held that this standard is met merely if the information "applies to a particular individual." U.S. Dep’t of State v. Washinaton Post Co., 456 U.S. at 602. The second prong requires courts to strike a "balance between th~ protection of an individual’s right to privacy and the preservation of the public’s right to Government information." Id~ at 599. The "public interest" in the analysis is limited to the "core purpose" for which Congress enacted the FOIA: to "shed... light on an agency’s performance of its statutory duties." U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989). We are withholding the names of lower government employees and personnel actions under Exemption (b)(6) to protect personal privacy. See Judicial Watch, Inc. v. United States, No. 03-1160, 2004 WL 26736, *4 (4th Cir. Jan. 6, 2004). The first prong has been met as names and their related personnel actions reference particular individuals. Under the Exemption (b)(6) balancing test established for prong two, disclosing the names of government employees and their leave actions would contribute little to the public’s understanding of the government unless that employee holds a position of command. Compared to a "not insubstantial" invasion of privacy interests that disclosure would constitute, there is little public interest in the names of government employees who do not head an office absent specific allegations of corruption or illegality. Judicial Watch, Inc. v. United States, No. 03-1160, 2004 WL 26736, *4 (4th Cir. Jan. 6, 2004) (citing U.S. Dep’t of Defense v. Fed. Labor Relations Auth., 510 U.S. 487, 500 (1994)). Disclosure of government personnel actions would constitute a "non-trivial" and "not insubstantial" invasion of government employees’ privacy interests. Id~ at 500, 501. As such, the names of government employees and personnel actions are withheld under Exemption (b)(6). Finally, we are also withholding the names of certain non-government contacts who do not hold positions of rank in their company and the names of non-government employees involved in unreleased projects under Exemption (b)(6). Please forward a check to this office in the amount of $15.90 made payable to the Treasurer of the United States and reference FOIA identification number 06-054. This amount represents the total of the following: 2 hours Professional Search ....................................................................................$88.00 10 hours Review and Excising ..............................................................................$200.00 206 copies at $0.15 per page ..............................