FOIA Fee Eligibility After Mid‑Litigation Releases: A Release Can Be “Voluntary” Even When Prompted by a Submitter, and Exemptions 4 & 6 Require Harm- and Segregability‑Sensitive Withholding

Precedents Cited

1) FOIA procedure, burden, and evidentiary tools

• Cincinnati Enquirer v. Dep't of Just. and Rimmer v. Holder: The court reaffirmed de novo review of summary judgment in FOIA cases and the ability of agencies to carry their burden through affidavits/Vaughn materials. Rimmer supplied the presumption of good faith for agency declarations.
• ACLU v. Dep't of Just.: Used for the baseline proposition that the agency bears the burden to justify withholdings.
• S. Appalachian Biodiversity Project v. U.S. Forest Serv. and Jones v. FBI: The opinion’s footnote contextualized the Vaughn index practice and when in camera review is unnecessary.
• Vaughn v. United States and Rugiero v. Dep't of Just.: These framed the “sparingly” used nature of in camera review and the abuse-of-discretion standard.
• United States v. Chattanooga-Hamilton Cnty. Hosp. Auth.: Cited to treat perfunctory or undeveloped arguments as waived—important to the court’s rejection of broad, non-specific in camera requests.

2) Exemption 4: defining “commercial,” “obtained from a person,” and “confidential”

• Pub. Citizen Health Rsch. Grp. v. FDA: Provided the classic three-part Exemption 4 framework (commercial/financial; obtained from a person; privileged/confidential) and “income-producing aspects of a business” articulation the Sixth Circuit leaned on heavily.
• Food Mktg. Inst. v. Argus Leader Media: Anchored the meaning of “confidential” (customarily and actually treated as private; plus “assurance of privacy” as jointly sufficient though not definitively necessary). It also supplied the policy rationale of encouraging cooperation with federal programs by protecting proprietary information.
• Citizens for Resp. & Ethics in Wash. v. Dep't of Just. and Bloomberg L.P. v. U.S. Postal Serv.: Used to support broad, function-based definitions of “commercial” information in other circuits.
• Nat'l Ass'n of Home Builders v. Norton and Ctr. for Inquiry, Inc. v. Dep't of Health & Hum. Servs.: Supported the “commercial function” rationale and the idea that a document can be withheld when it is itself the product sold.
• Greenberg v. FDA: Reinforced that customer/client lists can be “commercial” under Exemption 4.
• Bd. of Trade of City of Chi. v. Commodity Futures Trading Comm'n: Provided the “generated by the agency” vs “obtained from a person” distinction.
• OSHA Data/C.I.H., Inc. v. Dep't of Lab. and Gulf & W. Indus., Inc. v. United States: Cited for the proposition that agency summaries/reformulations can remain “obtained from a person.”
• S. All. for Clean Energy v. Dep't of Energy: Provided the “substantially reformulated by the agency” caveat—invoked, but rejected on the record here.
• Farmworker Justice v. Department of Agriculture: Used to contrast a scenario where wide distribution destroys confidentiality (265,000 families) with the comparatively small CLG/PGen membership context.

3) Exemption 6: scope and balancing

• Dep't of State v. Wash. Post Co.: Controlled the breadth of “similar files” and the requirement that information be personal to an identifiable individual. The Sixth Circuit used it to justify protecting individual email addresses, and to emphasize Exemption 6 does not protect non-personal records.
• Rugiero v. Dep't of Just.: Provided the Sixth Circuit’s two-prong Exemption 6 test and the point that identifying information can be protected even if already publicly available.
• Dep't of Def. v. FLRA: Limited the “public interest” side of balancing to what sheds light on “what the government is up to.”
• Heights Cmty. Cong. v. Veterans Admin.: Used to discount vague invocations of “monitoring” as an insufficiently concrete public interest.
• S.S. v. Leatt Corp. and Methode Elecs., Inc. v. Finisar Corp.: Cited (in a footnote) for the proposition that attorney-client privilege does not protect the fact that legal advice was sought, relevant to the court’s sensitivity to overbroad privilege assertions in FOIA.

4) Exemption 5 and mootness doctrines

• Falcone v. Internal Revenue Serv. and Mead Data Cent., Inc. v. Dep't of the Air Force: Cited for the narrowness of attorney-client privilege in the FOIA context.
• Spencer v. Kemna, Lewis v. Cont'l Bank Corp., and Los Angeles v. Lyons: Used to reject “capable of repetition, yet evading review” for TVA’s withdrawn privilege theory.
• Payne Enters., Inc. v. United States and Perry v. Block: Distinguished between permissible prospective challenges to an agency “policy or practice” and ordinary document-release disputes that become moot once records are produced.

5) Attorneys’ fees: catalyst theory, Buckhannon, and the OPEN Government Act

• Sigmon Fuel Co. v. Tenn. Valley Auth.: Supplied the abuse-of-discretion framework for reviewing fee decisions and the different levels of deference for legal vs factual issues.
• GMRI, Inc. v. EEOC: Provided the Sixth Circuit’s pre-OGA articulation of the “catalyst” concept and framed “eligible” vs “entitled” as distinct steps.
• Church of Scientology of Cal. v. Harris and Miller v. Dep't of State: Examples of pre-Buckhannon catalyst-theory cases.
• Buckhannon Bd. & Care Home, Inc. v. W.V. Dep't of Health & Hum. Res.: The backdrop that rejected catalyst theory for many federal fee-shifting statutes, emphasizing the need for “judicial imprimatur.” The Sixth Circuit treated it as interpretive context for FOIA’s later amendment.
• First Amend. Coal. v. Dep't of Just. and Brayton v. Off. of the U.S. Trade Rep.: Cited for the broad consensus that FOIA’s OPEN Government Act amendment reinstated a catalyst-like recovery theory, and as interpretive support.
• Batton v. Internal Revenue Serv.: Quoted for the catalyst requirement that litigation cause “the delivery of the information.”
• Pomares v. Dep't of Veteran Affs.: Used to recognize that Exemption 4 administration often depends on submitter confidentiality representations.
• Chrysler Corp. v. Brown and Jurewicz v. Dep't of Agric.: Cited for the reverse-FOIA mechanism and third-party suits to prevent disclosure, showing why agencies consult submitters but still must make the final FOIA call.

Legal Reasoning

1) Exemption 4 requires more than a “commercial” label—foreseeable harm matters

The court applied Exemption 4’s three elements (commercial; obtained from a person; confidential) and FOIA’s “foreseeable harm” overlay. Several key moves stand out:

• “Commercial” can include legal advice as the product itself: The court treated CLG “Updates”—confidential legal analysis distributed to members—as “commercial” because they are the “commercial product” McGuireWoods sells (or sells access to). This extends Exemption 4 beyond classic pricing/sales spreadsheets and recognizes information can be “commercial” where it is the paid deliverable.
• Client and prospective-client identity information is commercial (and harmful if disclosed): Membership lists and recruitment discussions were analogized to “customer lists,” tying them to competitive harm in the market for legal services.
• But “commercial” is not enough—TVA must articulate harm, and some logistics failed that test: The court rejected withholding for certain logistical communications (scheduling, naming, “eRoom notifications,” generic “how to communicate with members”) because TVA’s declarations did not explain how disclosure would foreseeably harm a protected commercial interest. That is an important tightening: agencies must connect the dots between the withheld content and the protected interest, not merely invoke a commercial context.
• Publicly revealed membership cannot remain “confidential”: If current PGen members are publicly listed, Exemption 4 cannot be used to keep those names secret. The court remanded for TVA to clarify whether it withheld current members or only “potential” members that never joined.
• Insurance policy terms were largely commercial and confidential, but one redaction failed: Coverage dates and covered facilities were upheld as “commercial” because they can reveal proprietary risk pricing/underwriting judgments. However, TVA’s redaction of the name of the AEGIS negotiating representative lacked a coherent Exemption 4 basis, especially where TVA disclaimed Exemption 6 at argument and offered only “the submitter said so.”

2) “Obtained from a person” and segregation: the court resisted formalism

EPI argued certain PGen-related documents were not “obtained from a person” because TVA may have contributed comments or replies. The court assumed TVA participation was possible but held the protected third-party information was not reasonably segregable: TVA’s comments would reveal the confidential draft advice they responded to, and revisions remained McGuireWoods work absent evidence of TVA “substantial reformulation” under S. All. for Clean Energy v. Dep't of Energy.

3) Exemption 6: individuals’ privacy is strong, but company identifiers are different—and domains may be segregable

The court affirmed that individual names and full business email addresses generally qualify as “similar files” and implicate a “weighty privacy interest” under Rugiero v. Dep't of Just.. It then narrowed the field:

• Exemption 6 protects individuals, not companies: company names are not within Exemption 6’s purpose or text.
• Email domain names likely can be segregated: Disclosing “█████@company.com” generally does not identify a particular person, so domains may be releaseable even when usernames are not.
• Public interest must be concrete and tied to “what the government is up to”: EPI’s rationale (“who is influencing TVA”) was treated as too inchoate, and the court emphasized EPI conceded that company names (not individual identities) would suffice for its purposes—undercutting the balancing case for disclosing individuals.

4) Attorneys’ fees eligibility: a submitter’s role does not negate an agency’s “voluntary” change in position

The opinion’s most consequential doctrinal development concerns fee eligibility when documents are released mid‑litigation. The district court treated TVA’s release as not “voluntary or unilateral” because it followed McGuireWoods’s changed view. The Sixth Circuit reversed:

• “Voluntary” focuses on agency choice and legal responsibility: Even where regulations require submitter notice and invite submitter objections (and even where reverse-FOIA suits are possible), TVA still makes the FOIA determination and remains legally obligated to disclose non-exempt records. Therefore, releasing documents after previously withholding them is TVA’s “change in position.”
• Text matters: “voluntary or unilateral” is disjunctive: Even if “unilateral” were read to exclude submitter-prompted changes, “voluntary” still captures TVA’s conduct.
• Alternative (suggested) reading: “voluntary or unilateral” contrasts with court-compelled relief: Without deciding, the court signaled a broader structural interpretation aligning “voluntary or unilateral” with Buckhannon Bd. & Care Home, Inc. v. W.V. Dep't of Health & Hum. Res.—i.e., changes lacking judicial imprimatur, distinct from relief obtained by order or consent decree.
• Remand required for causation and “not insubstantial”: Eligibility is not entitlement. The district court must still decide whether the lawsuit caused the release (catalyst causation) and whether EPI’s claim was “not insubstantial,” then proceed to equitable entitlement factors.

Impact

• Fee-eligibility leverage in Exemption 4 cases increases: Agencies in the Sixth Circuit cannot avoid fee eligibility merely by pointing to submitter-driven reconsideration; if the agency releases mid‑litigation after earlier denials, that can qualify as the agency’s “voluntary” change, with causation to be litigated.
• Exemption 4 demands a sharper harm narrative for “operational” or logistical material: The decision signals that not all information inside a commercial relationship is protectable. Agencies must articulate how disclosure harms a protected interest—particularly for administrative communications that do not reveal proprietary strategy, pricing, or product content.
• Publicly known identities can collapse Exemption 4 confidentiality claims: The court’s emphasis on actual public disclosure (here, the PGen website) places a premium on requesters developing evidence that the “secret” is already out.
• Exemption 6 segmentation: domains and company names: The court’s discussion pushes agencies toward partial disclosures (company identifiers; email domains) even when individuals’ identities remain properly withheld—an approach that can meaningfully increase transparency about institutional influence.
• Practical pleading/appellate lesson: The remand on Exemption 6 underscores that requesters must identify disputed documents with specificity; otherwise, even potentially meritorious privacy-balancing issues may be impossible to adjudicate on appeal.