*1 This case arises out of the request by plaintiff Lapidus Law Firm (“the Firm”) to defendant Washington Metro Area Transit Authority (“WMATA”) under WMATA's Public Access to Records Policy (“PARP”) for records related to a traffic accident involving a MetroAccess paratransit van operated by WMATA contractor Challenger Transportation Inc. (“Challenger”). See Pl.’s Mem. in Supp. of Mot. for Partial Summ. J. (“Pl.’s Br.”) [ECF No. 16-1] at 1. This Court previously ordered WMATA to “either produce the requested records or identify an applicable exemption in PARP permitting it to withhold the records.” Lapidus Law Firm PLLC v. Wash. Metro. Area Transit Auth., — F. Supp. 3d —, 2020 WL 5203509, at *5 (D.D.C. Sept. 1, 2020). In response, WMATA produced four records, two of which it redacted, and withheld a fifth document citing two PARP exemptions. See Pl.’s Br. at 2–3. The Firm now challenges WMATA's withholding and redactions.

The factual background underlying this case is laid out in detail in this Court's September 1, 2020 decision and need not be repeated here. See Lapidus Law Firm, 2020 WL 5203509, at *1–2. Suffice it to say that this case arises out of the efforts of the parents of Mariam Hendricks, a disabled adult, to obtain records related to a traffic accident in which Mariam was injured while riding in a MetroAccess paratransit van. See id. at *1. Since the Court's Order was issued, WMATA has produced four responsive records and withheld a fifth. Two of the records produced—a Montgomery County Police Department Motor Vehicle Collision Information Exchange Form (“MCPD Collision Information Exchange Form”) and an Incident Report submitted by Challenger—contained redactions. See Pl.’s Stmt. of Material Facts Not in Dispute (“Pl.’s SMF”) [ECF No. 16-2] ¶¶ 7–8.

From the MCPD Collision Information Exchange Form, WMATA redacted the date of birth and home address of its MetroAccess van driver, and the home phone number and date of birth of the other party to the accident, citing PARP Exemption 6.1.6. See Ex. 2, Pl.’s SMF [ECF No. 16-4]. That exemption shields “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” See Pl.’s SMF ¶ 7; Wash. Metro. Area Transit Auth., PARP § 6.1.6 (2019). WMATA redacted similar personal and contact information from the Incident Report, citing Exemption 6.1.6, as well as information about the accident and post-collision substance abuse testing of the MetroAccess van driver. See Ex. 4, Pl.’s SMF [ECF No. 16-6] at 1–3, 5–8, 10, 12, 17. Those redactions cited Exemptions 6.1.4, which protects third-party “trade secrets and commercial or financial information,” and 6.1.5, which protects privileged intra-agency and inter-agency communications and memoranda. See Pl.’s SMF ¶ 8; PARP §§ 6.1.4, 6.1.5. WMATA also relied on Exemptions 6.1.4 and 6.1.5 in “withholding a four-page cost of repair estimate [(the “Estimate”)] in its entirety.” Pl.’s SMF ¶ 6.

*2 The Firm has now moved for summary judgment, asserting that WMATA's redactions to the MCPD Collision Information Exchange Form and Incident Report, as well as its withholding of the Estimate, are improper. The Firm seeks an order from this Court requiring WMATA to produce unredacted copies of the withheld Estimate and MCPD Collision Information Exchange Form, and to either remove certain redactions from the Incident Report or provide a Vaughn index detailing WMATA's justifications for each redaction. See Pl.’s Br. at 9–10, 12. WMATA filed a cross-motion for summary judgment asserting that it has met its obligations under PARP. See Def.’s Opp'n/Cross-Mot. for Summ. J. (“Def.’s Br.”) [ECF No. 18] at 2. The parties’ cross-motions have been fully briefed and are now ripe for this Court's review.

As explained in the September Order, the legal standard governing claims under WMATA's PARP is derived from the federal Freedom of Information Act (“FOIA”). See Lapidus Law Firm, 2020 WL 5203509, at *2 (citing Wash. Metro. Area Transit Auth., PARP § 1.0 (2019)); ERG Transit Sys. (USA), Inc. v. Wash. Metro. Area Transit Auth., 593 F. Supp. 2d 249, 250 & n.2 (D.D.C. 2009) (stating PARP should be “interpreted in accordance with[ ] the FOIA”). “FOIA cases”—and therefore PARP cases as well—“typically and appropriately are decided on motions for summary judgment.” Defs. of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009). Summary judgment is warranted when the pleadings and evidence demonstrate that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

“It is the agency's burden to prove that it has complied with its obligations under FOIA.” Democracy Forward Found. v. Ctrs. for Medicare & Medicaid Servs., Civ. No. 18-635 (JDB), 2019 WL 6344935, at *1 (D.D.C. Nov. 27, 2019). To determine whether an agency has carried its burden, the district court may rely on agency affidavits and declarations that demonstrate the applicability of any claimed exemptions. See Morley v. CIA, 508 F.3d 1108, 1116 (D.C. Cir. 2007). “At all times courts must bear in mind that FOIA mandates a ‘strong presumption in favor of disclosure.’ ” Nat'l Ass'n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002) (quoting U.S. Dep't of State v. Ray, 502 U.S. 164, 173 (1991)).

I. WMATA's Withholding of the Cost of Repair Estimate

Citing PARP Exemptions 6.1.4 and 6.1.5, WMATA withheld in its entirety an estimate from a third-party mechanic “contain[ing] pricing estimates for parts and labor necessary to complete repairs to a vehicle.” See Def.’s Br. at 5–6. Because the two exemptions are distinct from one another, the Court will address each in turn.

PARP Exemption 6.1.4, like FOIA Exemption 4, shields from disclosure any “privileged or confidential” “trade secrets and commercial or financial information” obtained from a third party. See PARP § 6.1.4; 5 U.S.C. § 552(b)(4). The pricing information in the Estimate is commercial information and was obtained from a third party, which the Firm does not appear to dispute. Moreover, WMATA does not claim that the Estimate is privileged—at least not from the mechanic's perspective.[1] So the only question remaining for the Court's Exemption 6.1.4 analysis is whether such pricing information is “confidential,” and if so, whether that would justify withholding the document in its entirety.

*3 The Supreme Court revisited the meaning of “confidential” under FOIA Exemption 4 in its 2019 decision in Food Marketing Institute v. Argus Leader Media, 139 S. Ct. 2356, 2366 (2019). There, the Court held that for commercial or financial information to be withheld from public disclosure, it must be “customarily kept private, or at least closely held, by the person imparting it.” Id. at 2363. A mechanic's estimate for auto-repair costs falls rather far afield of this definition.[2]

WMATA levels several arguments for treating the Estimate as confidential, none of which is persuasive. For one, it argues that the Estimate is confidential because its disclosure could cause competitive harm to the mechanic who provided it. See Def.’s Br. at 5–7. This argument relies on precedent that has since been overruled. See Argus Leader, 139 S. Ct. at 2364 (repudiating the D.C. Circuit's “substantial competitive harm” requirement as showing “a casual disregard of the rules of statutory interpretation”). WMATA also reproduces in its brief a screenshot of a text box apparently from the Estimate stating in fine print that the “report contains proprietary information of Audatex and may not be disclosed to any third party ... without Audatex's prior written consent.” Def.’s Br. at 7. The implications of that language will be discussed below. More fundamentally, though, WMATA appears to misunderstand the type of confidential financial information shielded by the exemption.

WMATA insists that the Estimate is confidential because “[a] stranger cannot walk into a repair shop and obtain a cost of repair estimate created for a different customer.” Def.’s Br. at 7. Although it may be true that one customer cannot solicit another's estimate from a mechanic, the confidentiality inquiry looks more broadly to how the provider treats the type of financial or commercial information an agency seeks to withhold. The D.C. Circuit's test for confidentiality of commercial information voluntarily provided to a government agency asked merely if the information sought was “of a kind that would customarily not be released to the public by the person from whom it was obtained.” Critical Mass Energy Project v. NRC, 975 F.2d 871, 879 (D.C. Cir. 1992) (en banc) (emphasis added). The Supreme Court approvingly cited this language as “adher[ing] to a much more traditional understanding of the statutory term ‘confidential,’ ” see Argus Leader, 139 S. Ct. at 2365, and other courts in this district have continued to rely on Critical Mass even after Argus Leader was decided, see Ctr. For Investigative Reporting v. U.S. Customs & Border Prot., 436 F. Supp. 3d 90, 108–09 (D.D.C. 2019) (“The import of [Argus Leader]’s holding that the ordinary meaning of ‘confidential’ applies in all Exemption 4 cases ... is clear: Critical Mass and its progeny now supply the framework in this Circuit.”).

Applying Critical Mass, then, the Court agrees with the Firm that a mechanic's pricing information is “of a kind” readily obtainable by the public because “[r]epair shops stay in business by telling any member of the potential buying public what vehicle repairs cost.” See Pl.’s Opp'n to Def.’s Cross-Mot. for Summ. J. & Reply in Supp. of Mot. for Partial Summ. J. (“Pl.’s Reply”) [ECF No. 20] at 5. By contrast, the types of information that have been subject to withholding under Critical Mass and its progeny are more obviously confidential internal business records and strategy documents. See, e.g., Critical Mass, 975 F.2d at 874 (information on construction and operation of nuclear facilities); Besson v. U.S. Dep't of Com., 480 F. Supp. 3d 105, 114 (D.D.C. 2020) (monetary and technological contributions of telecommunications company to government research project); see also WP Co. LLC v. U.S. Small Bus. Admin., — F. Supp. 3d —, 2020 WL 6504534, at *9 (D.D.C. Nov. 5, 2020) (assuming third-party payroll records would satisfy FOIA Exemption 4). Moreover, mechanics’ pricing is probably not as opaque and secretive as WMATA appears to believe—nor should it be. A mechanic provides estimates containing pricing information to a broad swath of the consuming public. And a consumer's ability to “shop around” an estimate from one mechanic to another and bargain for a better deal undergirds consumer faith in the market and could not possibly be constrained by boilerplate fine print like that reproduced in WMATA's brief. See Def.’s Br. at 7. Indeed, the “proprietary information” purportedly protected by that language belongs to Audatex—a claims automation technology firm—not to the mechanic who prepared the Estimate. Ultimately, “the agency invoking Exemption 4 must meet the burden of proving the provider's custom” to privately hold the information sought, through sworn affidavits or other evidence. Ctr. For Investigative Reporting, 436 F. Supp. 3d at 110 (quoting Critical Mass, 975 F.2d at 879). Without a single affidavit—either from WMATA personnel or from the mechanic who prepared the Estimate—speaking to the mechanic's customary treatment of such estimates, WMATA has not met that burden. See id. at 110–11 (holding that FOIA Exemption 4 does not shield information submitted to Customs and Border Protection by unsuccessful bidders for construction of a border wall in part because “[c]onclusory statements by an agency official about what the agency official may believe about how a submitter customarily treats the information at issue are simply insufficient”).

*4 The Court need not dwell for long on WMATA's far-fetched appeal to the deliberative process privilege in favor of withholding the Estimate under PARP Exemption 6.1.5. This narrow exemption applies only to “intra-agency and inter-agency (WMATA Compact signatories and political subdivisions and representatives) memoranda or letters which would not be made available by law to a party in litigation with WMATA.” PARP § 6.1.5.

As a threshold matter, the Estimate is indisputably a third-party document—not an intra-or inter-agency document. And quite plainly, the mechanic who prepared the Estimate is not covered by the so-called “consultant corollary” extending the deliberative process privilege in certain circumstances. See U.S. Dep't of the Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 10–11 (2001). In order to shield a consultant's documents from disclosure or discovery, the consultant must “not represent an interest of its own ... when it advises the agency that hires it. Its only obligations are to truth and its sense of what good judgment calls for, and in those respects the consultant functions just as an employee would be expected to do.” Id. at 11. Despite WMATA's wishful characterization of the Estimate as “an opinion document provided by an expert to WMATA regarding its recommendations for the scope and proposed cost of repairs,” Def.’s Reply in Supp. of Cross-Mot. for Summ. J. (“Def.’s Reply”) [ECF No. 21] at 6, it is self-evident that the mechanic continues to represent its own business interests in preparing a bid it hopes will be successful for the legitimate purpose of earning revenue. Hence, under Klamath, the consultant corollary does not apply here.

Even if it did, the Estimate is not a “deliberative” document exempt from discovery. To fall within the scope of the deliberative process privilege, a document must be both predecisional and deliberative. See Oceana Inc. v. Ross, 290 F. Supp. 3d 73, 83 (D.D.C. 2018) (citing In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997)). “A document is predecisional ‘if it was generated before the adoption of an agency policy’ and it is deliberative ‘if it reflects the give-and-take of the consultative process.’ ” Id. (quoting Am. Petroleum Tankers Parent, LLC v. United States, 952 F. Supp. 2d 252, 265 (D.D.C. 2016)). Examples might include “documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” Klamath, 532 U.S. at 8–9 (citing NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975)). And the purpose for protecting such documents from discovery in litigation (and thereby from disclosure under FOIA or PARP) is to permit agencies to “craft better rules when their employees can spell out in writing the pitfalls as well as strengths of policy options, coupled with the understanding that employees would be chilled from such rigorous deliberation if they feared it might become public.” Jud. Watch, Inc. v. U.S. Dep't of Defense, 847 F.3d 735, 739 (D.C. Cir. 2017).

It is practically inconceivable that the Estimate could be withheld in civil litigation against WMATA pursuant to the deliberative process privilege. WMATA admits that the report “provide[d] ... the likely cost of repair” and “was solicited by WMATA to aid in its decision making process regarding the scope and cost of work it should authorize.” See Def.’s Br. at 8–9. Thus, the report informs, rather than “reflects the give-and-take of the consultative process.” See Oceana, 290 F. Supp. 3d at 83 (quoting Am. Petroleum, 952 F. Supp. 2d at 265) (emphasis added). WMATA does not claim, and the Court cannot imagine, that a mechanic's candor in providing cost estimates to would-be government customers could be chilled by the possibility that such estimates may become public. The Estimate is simply not a deliberative document for the purposes of the privilege.

II. WMATA's Redaction of the MCPD Collision Information Exchange Form

*5 WMATA produced the MCPD Collision Information Exchange Form with just minor redactions of the WMATA van driver's home address and date of birth, and of the home phone number and date of birth of the other driver involved in the accident. See Ex. 2, Pl.’s SMF. In redacting the document, WMATA cites PARP Exemption 6.1.6, which permits the exclusion of “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” See PARP § 6.1.6. The PARP exemption tracks FOIA Exemption 6, which has been held to protect “bits of personal information, such as names and addresses,” in addition to files, when the release of that information “would ‘create[ ] a palpable threat to privacy.’ ” Jud. Watch, Inc. v. FDA, 449 F.3d 141, 152 (D.C. Cir. 2006) (quoting Carter v. U.S. Dep't of Com., 830 F.2d 388, 391 (D.C. Cir. 1987)). Evaluation of a purported privacy withholding “involves a ‘balancing of interests between the protection of an individual's private affairs from unnecessary public scrutiny, and the preservation of the public's right to governmental information.’ ” WP Co., 2020 WL 6504534, at *10 (quoting U.S. Dep't of Def. Dep't of Mil. Affs. v. Fed. Lab. Rels. Auth., 964 F.2d 26, 29 (D.C. Cir. 1992)).

For its part, the Firm asserts that it “seeks contact information for individuals who were involved [in the accident] so that it can investigate what happened” to its client “entrusted to the care of WMATA.” Pl.’s Reply at 3. Although the redacted address and phone number constitute such “contact information,” the Firm does not indicate whether or how the redacted birth dates would advance its goal. At least theoretically, birth dates could assist the Firm in conducting searches through publicly accessible databases. Meanwhile, WMATA fails to articulate any concrete privacy interest or cite any cases in support of redacting birth dates. On the whole, the Court agrees that the redacted information at least somewhat advances a public interest in uncovering the details of a traffic accident involving a public transportation vehicle. See U.S. Dep't of Def. v. Fed. Lab. Rels. Auth., 510 U.S. 487, 497 (1994) (“[T]he only relevant public interest in the FOIA balancing analysis [is] the extent to which disclosure of the information sought would ‘she[d] light on an agency's performance of its statutory duties’ or otherwise let citizens know ‘what their government is up to.’ ” (quoting U.S. Dep't of Just. v. Reps. Comm. for Freedom of Press, 489 U.S. 749, 773 (1989)). And courts in this District have ordered disclosure of individuals’ addresses on multiple occasions where there is a public interest in disclosure. See, e.g., WP Co., 2020 WL 6504534, at *18 (“[T]he weighty public interest in disclosure [of names and addresses] easily overcomes the far narrower privacy interest of borrowers who collectively received billions of taxpayer dollars in loans.”).

In defense of its redactions, WMATA contends that “the respective drivers have a substantial interest in keeping personal information like birth dates, addresses, and phone numbers safe from disclosure to the public.” Def.’s Br. at 5. But it does not explain why it released one driver's address and not the other's, nor why the non-WMATA driver has a privacy interest in safeguarding his home phone number but not his home address. If WMATA had redacted all addresses and phone numbers for both parties to the accident, it might effectively analogize to other cases where addresses have been withheld;[3] as it is though, the selective redaction of its driver's address and the other driver's phone number appears arbitrary.

*6 Ultimately, “the reviewing court must bear in mind ‘at all times ... that FOIA mandates a strong presumption in favor of disclosure,” WP Co., 2020 WL 6504534, at *5 (quoting Nat'l Ass'n of Home Builders, 309 F.3d at 32, and “exemptions are to be ‘narrowly construed,’ ” id. (quoting Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976)). Indeed, the D.C. Circuit has held that “under [FOIA] Exemption 6, the presumption in favor of disclosure is as strong as can be found anywhere in the Act.” Nat'l Ass'n of Home Builders, 309 F.3d at 32 (quoting Wash. Post Co. v. U.S. Dep't of Health & Hum. Servs., 690 F.2d 252, 261 (D.C. Cir. 1982)). Because WMATA failed to apply sufficient rigor in making its redactions to the MCPD Collision Information Exchange Form in the first instance, and has not identified a concrete overriding privacy interest in the redacted information, “it has failed to rebut the presumption favoring disclosure.” Id. at 37.

III. WMATA's Redaction of the Incident Report

WMATA made several redactions to Challenger's Incident Report, citing all three of the exemptions discussed above. The Firm concedes that “[m]uch of the redacted information is of no interest to [it],” but “specifically challenges” four of WMATA's redactions to information the Firm believes to be factual and therefore not subject to redaction. See Pl.’s Br. at 9–11. Before proceeding to evaluate the merits of the challenged redactions, the Court will first analyze the contours of the exemptions WMATA may properly invoke with respect to the Incident Report.

First, the Court rejects WMATA's assertion that “PARP Section 6.1.4 is the proper exemption for documents protected by WMATA's self-evaluative privilege.” Def.’s Br. at 9.[4] Exemption 6.1.4 only applies to “trade secrets and commercial or financial information obtained from a person.” See PARP § 6.1.4; see also Pub. Citizen Health Rsch. Grp. v. Food & Drug Admin., 704 F.2d 1280, 1286 (D.C. Cir. 1983) (“[I]f the documents contain neither trade secrets nor commercial [or financial] information, Exemption 4 is wholly inapplicable.”). WMATA does not attempt to argue that the Incident Report or redacted material therein is commercial or financial even if it were otherwise protected by the self-evaluative privilege.[5] Hence, the Court need not analyze whether PARP Exemption 6.1.4 applies to the redacted portions of the Incident Report.

*7 The Court can also dispense with analysis of PARP Exemption 6.1.6 as asserted over the challenged redactions to the Incident Report. Even though WMATA cited Exemption 6.1.6 in connection with some of those redactions, it only references in passing its invocation of that exemption in redacting information pertaining to the drug test administered to its driver. See Def.’s Br. at 11 (stating without citation that “information related to a possible drug test of the subject driver” was redacted to “protect[ ] the privacy of the contract employee”); Def.’s Reply at 7 (mentioning Exemption 6.1.6 only in connection with redactions not challenged by the Firm). WMATA has not explained in any of its filings or communications with the Firm why disclosing the drug test information would constitute a “clearly unwarranted invasion of personal privacy” sufficient to override the obvious public interest in knowing whether public transportation vehicles are being driven by drivers under the influence of drugs. See PARP § 6.1.6. The Court declines to credit WMATA's bare assertion of a privacy interest in redacting facts about the driver's drug test, leaving only the question whether PARP Exemption 6.1.5 can shield the redacted information under the “self-evaluative privilege.”

Before proceeding to this analysis, some description of the challenged redactions is warranted. The Firm does not challenge any of the redactions on pages 1–6 of the Incident Report. The bulk of the challenged redactions appear in a sub-section of the report titled “Post-Collision Substance Abuse Testing Decision Maker” appearing at pages 7–8 of the report. See Pl.’s Br. at 10. Those pages ask a series of questions about the supervisor's decision whether to refer the driver for substance abuse testing and the rationale therefor. See Ex. 4, Pl.’s SMF at 7–8. The Firm also challenges redactions to the “Summary” section of the “Supervisor Investigation Report” on page 17 of the Incident Report, some of which also appear to pertain to substance abuse testing. See id. at 17.

As discussed above, PARP Exemption 6.1.5 ordinarily only applies to “intra-agency and inter-agency ... memoranda or letters,” see PARP § 6.1.5, but may also extend to consultant's documents that have “been received by an agency, to assist it in the performance of its own functions, from a person acting in a governmentally conferred capacity,” see Klamath, 532 U.S. at 9–10 (quoting U.S. Dep't of Just. v. Julian, 486 U.S. 1, 18 n.1 (1988) (Scalia, J., dissenting)). Challenger, which prepared the Incident Report, “is one of WMATA's contractual agents operating its paratransit services in the region.” Def.’s Br. at 10. Challenger operates MetroAccess vans, including the one involved in the accident at issue here, on WMATA's behalf. See Ex. 4, Pl.’s SMF; see also Challenger Transp. Inc., Our Services, http://www.challengertrans.com/services.html (last visited Feb. 24, 2021) (listing “ADA paratransit operations” as a service offered in front of a photograph of a recognizable MetroAccess van). Unlike the mechanic who prepared the Estimate largely to advance its own independent business interests, Challenger's incident report here was clearly prepared to assist WMATA, and the Firm fails to advance any specific argument to the contrary. See Pl.’s Br. at 10 (arguing only that because the “report was prepared by a private company, not WMATA,” Exemption 6.1.5 should not apply). Accordingly, the Court agrees that WMATA could properly redact portions of the Incident Report pursuant to PARP Exemption 6.1.5, so long as the redacted portions would otherwise be protected from civil discovery by the self-evaluative privilege. See PARP § 6.1.5 (exempting only such documents “which would not be made available by law to a party in litigation with WMATA”).[6]

*8 “The self-evaluative privilege is rarely recognized,” Felder v. WMATA, 153 F. Supp. 3d 221, 225 (D.D.C. 2015) (quoting Wade v. WMATA, No. Civ. 01-0334(TFH), 2006 WL 890679, at *5 (D.D.C. Apr. 5, 2006)), but it “has been held ‘applicable to WMATA safety evaluations’ ” in this District on a number of occasions, id. (quoting Wainwright v. WMATA., 163 F.R.D. 391, 396 (D.D.C. 1995) (listing cases)). In order to be eligible for protection from discovery under the self-evaluative privilege, “(1) the document must be a critique submitted as part of a mandatory government report; and (2) the document must have been prepared retrospectively as a component of a post-accident evaluation.” Id. Both of those threshold elements appear to be met here, and the parties do not argue that the nature of the Incident Report is different from the type of post-accident government report subject to redaction or withholding under the self-evaluative privilege. But the Court's analysis does not end there.

“[P]urely factual material appearing alongside self-critical analysis” is not protected by the self-evaluative privilege. Id. (citing Martin v. Potomac Elec. Power Co., No. 86–0603, 1990 WL 158787, at *3 n.4 (D.D.C. May 25, 1990)). WMATA concedes that the privilege does not protect factual information, but disputes that any of the challenged redacted information (most of which relates to whether to refer the driver to substance abuse testing) is purely factual. Def.’s Br. at 10. Specifically, WMATA points to a threshold question on the Incident Report asking if the evaluator can “completely discount the performance of the operator of the public transportation vehicle as a contributing factor to the collision.” Id. It characterizes that question as soliciting “the supervisor's self-evaluative opinions regarding the cause of the motor vehicle incident,” which it asserts would be “necessarily disclosed” if it were to disclose information like the “ ‘Arrival Time’ for drug testing,” or the information redacted on the “Post Collision Substance Abuse Testing Decision Maker” form. Id. at 10–11. The logic of its argument is that, were WMATA to admit the driver underwent substance testing, it would implicitly admit that the supervisor could not rule out driver performance as a contributing factor to the collision.

But the Firm points out in its reply that “WMATA has already revealed that the driver was in fact sent for drug and alcohol testing,” Pl.’s Reply at 9, which WMATA concedes, see Def.’s Reply at 7. And WMATA's retort—that “the mere fact the driver was sent for testing reveals nothing in [sic] how that specific form was filled out”—undermines its original argument that disclosing factual information about drug testing would reveal “the supervisor's self-evaluative opinions.” See id. at 7–8. Further, WMATA's assertion that the redacted form in question “is not the only resource used by WMATA and WMATA contractors to determine the necessity of testing” appears to imply that the presence or absence of testing would not “necessarily” reveal the supervisor's opinion about the cause of the accident as WMATA had argued earlier. See id. at 7. Hence, the Court disagrees that it is necessary to redact the otherwise factual information contained on pages 7 and 8 of the Incident Report—or, for that matter, the redacted information on page 17—in order to protect the self-evaluative conclusion expressed in the check-boxes on page 7, the redaction of which the Firm does not challenge.

Still, without seeing the redacted language, the Court is not in a position to determine whether portions of it may nevertheless be privileged. To be sure, certain of the prompts preceding the redactions do seem to indicate that factual answers follow. For example, Question C on page 7 of the Incident Report asks for a description of factual circumstances in addition to conclusions about “what criterion [for drug testing] was met.” See Ex. 4, Pl.’s SMF at 7. Whereas the evaluator's conclusions might be privileged, her description of facts would not be. Similarly, the check-boxes on page 8 correspond to factual questions, but the text boxes below those questions, which call for a narrative response, may well contain the supervisor's critical opinions or conclusions. See id. at 8. To ensure that any remaining redactions among those challenged by the Firm correspond to privileged self-evaluative information, the Court will order WMATA to produce a Vaughn index describing each remaining redaction and explaining its justification grounded in the self-evaluative privilege. See Dorsett v. U.S. Dep't of Treasury, 307 F. Supp. 2d 28, 34 (D.D.C. 2004) (citing Founding Church of Scientology of Wash. D.C., Inc. v. Bell, 603 F.2d 945, 949 (D.C. Cir. 1979)).

*9 For the foregoing reasons, the Court will grant plaintiff's motion for partial summary judgment and deny defendant's cross-motion for summary judgment. A separate Order will issue on this date directing WMATA to produce unredacted copies of the Estimate and MCPD Collision Information Exchange Form, to revisit its redactions to the Incident Report, and to produce a Vaughn index detailing any remaining redactions to that Report.

WMATA's counsel seems to have muddied the waters of this question by indicating to the Firm that it was relying on a “self-evaluative privilege” in withholding the Estimate pursuant to Exemption 6.1.4. See Ex. 1, Pl.’s SMF [ECF No. 16-3]. The portion of WMATA's brief dedicated to the Estimate makes no reference to a self-evaluative privilege, and it seems unlikely that the Estimate would contain the type of subjective self-critical analysis subject to that privilege, see infra, so the Court will chalk WMATA's language in its email to the Firm up to carelessness and hope that WMATA's counsel will describe the grounds for withholdings more precisely in the future.

Because WMATA's argument founders on the shoals of the first prong of Argus Leader’s confidentiality test, this Court need not wade into the question—left unsettled by the Supreme Court—whether the source of commercial or financial information must have relied on governmental assurances that the information would be kept private. See 139 S. Ct. at 2364 (stating the Court had “no need to resolve” the necessity of governmental assurance of privacy).

Independently of WMATA's inconsistent redactions, the Court is not persuaded that United States Department of Defense v. Federal Labor Relations Authority compels protection here. There, the Supreme Court found a privacy interest in shielding from union plaintiffs the addresses of “employees [who] have chosen not to become members of the union or to provide the union with their addresses” to “avoid[ ] the influx of union-related mail, and, perhaps, union-related telephone calls or visits, that would follow disclosure.” 510 U.S. at 501. The only asserted interest in obtaining those employees’ addresses did not relate to their conduct on behalf of their government employers, which might be of interest to the public; rather, disclosure merely “might allow the unions to communicate more effectively with employees.” Id. at 497. As discussed, there is at least a cognizable public interest in disclosure here.

As will be discussed infra, the proper exemption through which to assert the self-evaluative privilege over a document like the Incident Report is Exemption 6.1.5.

WMATA also mischaracterizes the DOJ FOIA Guide it cites in support of shielding portions of the Incident Report under PARP Exemption 6.1.4. The Guide does not “recogniz[e] Exemption 4 as properly inclusive of documents protected from disclosure pursuant to self-evaluative privilege.” See Def.’s Br. at 9 (citing U.S. Dep't of Just. Guide to the FOIA (“DOJ FOIA Guide”), Exemption 4 – Privileged Information, at 16, https://www.justice.gov/oip/page/file/1207891/download (last visited Feb. 24, 2021)). Instead, the Guide simply cites a single unpublished case more than thirty years old where a court “recognized Exemption 4 protection for documents subject to the critical self-evaluative privilege.” DOJ FOIA Guide at 16 (citing Wash. Post Co. v. DOJ, No. 84-3581, 1987 U.S. Dist. LEXIS 14936, at *21 (D.D.C. Sept. 25, 1987) (magistrate's recommendation), adopted, No. 84-3581 (D.D.C. Dec. 15, 1987), rev'd in part on other grounds & remanded, 863 F.2d 96, 99 (D.C. Cir. 1988)). And that case is by no means well-settled. As noted more recently by another judge in this District disposing of a similar argument, “in remanding that case for consideration of the applicability of a FOIA exemption other than Exemption 4, the D.C. Circuit court reserved judgment as to whether Exemption 4 encompasses a self-evaluative privilege.” Pub. Citizen v. U.S. Dep't of Health & Hum. Servs., 975 F. Supp. 2d 81, 95 n.11 (D.D.C. 2013) (citing Wash. Post, 863 F.2d at 99).

WMATA once again appears to have misstated the relationship between the PARP exemptions it cites and their legal bases. With respect to the Incident Report, WMATA stated it made redactions pursuant to the self-evaluative privilege under Exemption 6.1.4, and that its redactions under Exemption 6.1.5 were made pursuant to the deliberative process privilege. See Ex. 3, Pl.’s SMF [ECF No. 16-5]. However, in its brief WMATA appears to abandon its assertion of the deliberative process privilege and rest its Incident Report redactions under Exemption 6.1.5 on the self-evaluative privilege. See Def.’s Br. at 9. WMATA's apparent inattention to detail in conveying its initial redactions belies its statement that “[a]ll of WMATA's redactions on [the Incident Report] were proper [and] carefully considered,” see Def.’s Br. at 11, and militates in favor of requiring a Vaughn index to accompany any further redactions WMATA seeks to support in this litigation.