Animals v. Nat'l Institutes of Health Dep't of Health & Human Servs., Civil Action No. 10–1818 (ABJ).

• Decision Date: 10 April 2012
• Docket Number: Civil Action No. 10–1818 (ABJ).
• Citation: 853 F.Supp.2d 146
• Court: U.S. District Court — District of Columbia
• Parties: PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, Plaintiff, v. NATIONAL INSTITUTES OF HEALTH DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.

853 F.Supp.2d 146

PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, Plaintiff,

v.NATIONAL INSTITUTES OF HEALTH DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.

Civil Action No. 10–1818 (ABJ).

United States District Court, District of Columbia.

April 10, 2012.

Jessica Almy, Katherine A. Meyer, Meyer Glitzenstein & Crystal, Washington, DC, for Plaintiff.

Marina Utgoff Braswell, U.S. Attorneys Office for the district of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

AMY BERMAN JACKSON, District Judge.

Plaintiff People for the Ethical Treatment of Animals (“PETA”) brings this action against defendant National Institutes of Health (“NIH”) under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (2006), and the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2) (2006). Plaintiff seeks documents concerning all NIH investigations into complaints regarding three specifically named researchers at the Auburn University Scott–Ritchey Research Center (“Auburn”) in Alabama. Plaintiff also seeks a confidentiality agreement between Auburn and NIH, relating to materials and information regarding an investigation concerning one of the three named individuals. NIH gave a Glomar response to these requests, refusing to confirm or deny whether it had responsive records. Additionally, plaintiff requests access to records regarding the NIH Office of Laboratory Animal Welfare (“OLAW”) files concerning Auburn. Defendant provided plaintiff with some documents in response to this request but withheld all or portions of documents pursuant to certain FOIA Exemptions.

Plaintiff seeks a declaratory judgment finding that defendant violated FOIA by failing to disclose all non-exempt responsive records. Compl. at 11 (prayer for relief) [Dkt. # 1]. Plaintiff additionally asks this Court to declare that defendant has violated the APA by requiring Auburn University to enter into a confidentiality agreement that plaintiff contends is contrary to state law. Id. Defendant filed a motion to dismiss in part and for summary judgment. [Dkt. # 13]. Plaintiff filed a cross-motion for partial summary judgment. [Dkt. # 15]. For the reasons below, the Court will deny defendant's motion in part with respect to the motion to dismiss and grant in part with respect to the motion for summary judgment. The Court will deny plaintiff's cross-motion for partial summary judgment.

I. BACKGROUND

Plaintiff PETA is a non-profit organization that advocates for animal rights. Compl. ¶ 3. As a part of its advocacy efforts, PETA relies on FOIA requests to uncover information concerning the abuse of animals used in laboratory research, which it then disseminates to the public. Goodman Decl. ¶¶ 4–5. Defendant NIH is a federal agency within the Department of Health and Human Services (“HHS”). Compl. ¶ 4. Auburn University is a public university in Alabama that receives federal funding from NIH for research on laboratory animals. Id. ¶ 9. Institutions that conduct animal research with NIH funds must adhere to the Public Health Service's Policy on Human Care and Use of Laboratory Animals (“PHS Policy”), administered by OLAW. Id. ¶ 8.

The complaint alleges that an Auburn University employee contacted NIH on September 27, 2005, to report the “misappropriation of NIH funds” by certain Auburn University researchers in connection with their work on a five-year NIH research grant. Id. ¶ 10. The employee alleged that the researchers were misapplying funds from the NIH grant to perform other procedures for private clients. Id. Subsequently, PETA filed the three FOIA requests underlying this action in order to discover whether NIH had taken any action with respect to these allegations, including whether NIH had conducted investigations into the three individual researchers PETA believes are responsible for violations of NIH Policy and the Animal Welfare Act (“AWA”), 7 U.S.C. § 2131 (2006). Compl. ¶¶ 11, 16, 21.

A. Factual Background

Plaintiff PETA made three separate FOIA requests that give rise to this action. On February 28, 2006, PETA submitted a FOIA request (the “First Request”) to NIH seeking “copies of all OLAW files concerning Auburn University.” Def.'s Statement of Material Facts (“Def.'s SMF”) ¶ 10. On November 22 and December 28, 2006, NIH responded to the First Request, stating that 384 responsive pages had been located and that certain information had been withheld from disclosure. Id. NIH produced forty-seven responsive pages in full or with redactions but withheld 323 pages in full. Maloney Decl. ¶ 11. PETA filed a timely administrative appeal, alleging that NIH had failed to provide any reference to the FOIA exemptions upon which it relied to justify nondisclosure. Ex. 6 to Maloney Decl. The agency issued a final decision on July 12, 2010, explaining for the first time the basis of its withholdings under FOIA Exemptions 4, 6, 7(C), and 7(D). Def.'s SMF ¶ 13.

While PETA's appeal of its First Request was still pending, PETA filed a second FOIA request (the “Second Request”) on July 25, 2007, seeking copies of information and other materials related to all NIH investigations into complaints filed from 2005 to present about the three specifically named individuals at Auburn. Maloney Decl. ¶ 4. On February 20, 2008, NIH responded to the Second Request, asserting that it could neither confirm nor deny the existence of responsive records and informing PETA of its right to appeal the agency's decision within thirty days. Def.'s SMF ¶¶ 2–3. NIH further stated that even if the requested records existed, they would be exempt from disclosure under FOIA Exemption 6. Id. PETA did not file a timely administrative appeal; instead, PETA waited six months to appeal NIH's February 20, 2008 response letter. Id. ¶¶ 4–5.

On August 21, 2008, plaintiff challenged the February 20, 2008 response letter, reiterated its Second Request for records, and additionally requested (the “Third Request”) a copy of the confidentiality agreement between Auburn University and NIH regarding the alleged investigation of one of the three individuals cited in the Second Request. Id. ¶ 5. On August 26, 2008, NIH responded that PETA's appeal of the February 20, 2008 response letter was untimely, but that the agency was in receipt of its Third Request and would respond shortly. Id. ¶ 6. Three days later, defendant responded to the Third Request, stating that the agency could neither confirm nor deny the existence of responsive records. Id. ¶ 7. Defendant also asserted that, even if the requested records existed, they would be exempt from disclosure under FOIA Exemption 6. Id. ¶ 7.

Plaintiff timely appealed, and defendant issued a final decision on July 12, 2010, upholding its earlier decision to neither confirm nor deny the existence of responsive records and further stated that, even if the requested records existed, they would be exempt from disclosure under FOIA Exemption 6 or 7(C). Id. ¶¶ 8–9. Although defendant acknowledged in its final decision that plaintiff's appeal was timely only with respect to its Third Request, the agency nevertheless offered “a substantive response to the appeal of both matters.” Ex. 2 to Maloney Decl.

B. The Lawsuit Before This Court

On October 27, 2010, PETA filed this action seeking to compel disclosure of records responsive to its FOIA requests. Count I of the complaint alleges that NIH has “no statutory basis” under FOIA for redacting or withholding records responsive to its First Request. Compl. ¶ 25. Count II alleges that NIH has “no statutory basis” under FOIA to “refus[e] to process PETA's [Second Request and Third Request] for information concerning investigations of particular recipients of federal funding, or to refuse to disclose the information requested by those requests.” Id. ¶ 26. Count III alleges that NIH violated the APA by requiring “Auburn University to enter into a ‘confidentiality agreement’ that purportedly bars the University from disclosing records to PETA under the Alabama Open Records Act.” Id. ¶ 27.

On March 10, 2011, NIH filed a motion to dismiss in part and for summary judgment. Defendant moved to dismiss Count II of the complaint in part, which concerns the Second Request made in July 2007, on the grounds that plaintiff failed to file a timely appeal and therefore did not exhaust administrative remedies. Def.'s Mem. in Supp. of Mot. to Dismiss in Part and for Summ. J. (“Def.'s Mem.”) at 3–8 [Dkt. # 13]. Defendant also moved to dismiss Count III of the complaint, the APA claim, on the grounds that APA review is “only available when there is no other remedy.” Id. at 2; accord id. at 30–35.

PETA cross-moved for partial summary judgment [Dkt. # 15] on April 29, 2011. In its memorandum, plaintiff informed the Court that it is now “challenging only the government's assertion of a ‘Glomar’ response and the withholding of the ‘confidentiality agreement’ it required from Auburn University, in refusing to process PETA's July 25, 2007 and August 21, 2008 requests.” Pl.'s Mem. in Supp. of Mot. for Partial Summ. J. and Opp. to Def.'s Mot. (“Pl.'s Mem.”) at 2 n. 1. [Dkt. # 15]. Plaintiff also did not respond to defendant's arguments with respect to Count I or Count III in its opposition to defendant's motion for summary judgment. As such, the Court will treat Count I and III as conceded and will dismiss these claims without prejudice. See Hopkins v. Women's Div., Gen. Bd. of Global Ministries, 284 F.Supp.2d 15, 25 (D.D.C.2003) (“It is well understood in this Circuit that when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded.”). Count II, which alleges that defendant violated FOIA by giving a Glomar response to the Second and Third FOIA requests, is the only claim still at issue.

II. STANDARD OF REVIEW

“FOIA cases are typically and appropriately decided on motions for summary judgment...