Civil Beat Law Ctr. for the Pub. Interest, Inc. v. Ctrs. for Disease Control & Prevention

• Decision Date: 30 August 2016
• Docket Number: CIVIL NO. 16-00008 JMS/KSC
• Citation: 204 F.Supp.3d 1132
• Parties: CIVIL BEAT LAW CENTER FOR THE PUBLIC INTEREST, INC., Plaintiff, v. CENTERS FOR DISEASE CONTROL AND PREVENTION, Defendant.
• Court: U.S. District Court — District of Hawaii

204 F.Supp.3d 1132

CIVIL BEAT LAW CENTER FOR THE PUBLIC INTEREST, INC., Plaintiff,

v.CENTERS FOR DISEASE CONTROL AND PREVENTION, Defendant.

CIVIL NO. 16-00008 JMS/KSC

United States District Court, D. Hawai‘i.

Signed August 30, 2016

Robert B. Black, Civil Beat Law Center for the Public Interest, Honolulu, HI, for Plaintiff.

Rachel S. Moriyama, Office of the United States Attorney, Honolulu, HI, for Defendant.

ORDER: (1) GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; AND (2) GRANTING IN PART AND DENYING IN PART PLAINTIFF'S COUNTER-MOTION FOR SUMMARY JUDGMENT

J. Michael Seabright, Chief United States District Judge

I. INTRODUCTION

Plaintiff Civil Beat Law Center for the Public Interest, Inc. ("Plaintiff") brings this action against Defendant Centers for Disease Control and Prevention ("Defendant" or "CDC") pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, claiming that the CDC wrongly denied its FOIA request for two documents.

Currently before the court is Defendant's Motion for Summary Judgment (the "CDC's Motion"), Doc. No. 15, and Plaintiff's Counter-Motion for Summary Judgment ("Plaintiff's Motion"), Doc. No. 21. For the reasons that follow, the court GRANTS in part and DENIES in part both Defendant's Motion and Plaintiff's Motion.

II. BACKGROUND

A. Plaintiff's FOIA Request

"According to media reports, in May 2014, the CDC found " ‘widespread regulatory noncompliance’ " upon inspecting University of Hawaii ("UH") laboratories using biological select agents and toxins ("BSAT"). Doc. No. 1, Compl. ¶ 2.

On April 24, 2015, Plaintiff submitted a FOIA request to the CDC seeking release of the records relating to the CDC's inspection of the UH laboratories. Doc. No. 15-3, Def.'s Ex. A. Specifically, Plaintiff requested two documents: (1) a "May 12, 2014 ‘show cause’ letter from Robbin Weyant, Director, Division of Select Agents & Toxins, to John Galland, University of Hawaii" (the "Letter"); and (2) a "May 12, 2014 inspection report with attachment(s) for University of Hawaii from Robbin Weyant, Director, Division of Select Agents & Toxins, to John Galland, University of Hawaii" (the "Report") (collectively, the "Documents"). Doc. No. 15-3, Def.'s Ex. A.

On April 30, 2015, the CDC FOIA Office acknowledged receipt of Plaintiff's FOIA request by letter. Doc. No. 15-4, Def.'s Ex. B.

On May 5, 2015, the CDC notified Plaintiff it was "withholding all records (18 pages) in full under the authority of 5 U.S.C. § [552](b)(3) and the Department's implementing regulations at 45 CFR § 5.64 because the [Documents] are specifically exempted from disclosure by 42 U.S.C. § 262a(h)(1)(C) and (E)." Doc. No. 15-6, Def.'s Ex. D.

Plaintiff timely administratively appealed the CDC's decision on May 11, 2015. Doc. No. 15-7, Def.'s Ex. E. On November 24, 2015, the Department of Health and Human Services (the "DHHS")—which contains various federal governmental agencies, including the CDC—denied Plaintiff's administrative appeal. Doc. No. 15-8. The parties agree that Plaintiff properly exhausted its administrative remedies. Doc. No. 25, Def.'s Response to Pl.'s Concise Statement of Facts ¶ 2.

B. Plaintiff's Lawsuit

On January 7, 2016, Plaintiff filed the present lawsuit challenging the CDC's decision to withhold the Documents in full. Doc. No. 1.

1. The CDC's Motion

The CDC's Motion, filed on May 11, 2016, contains two declarations in support of the CDC's decision to withhold the documents. Doc. No. 15. First, Bruno Viana, the acting FOIA Officer for the CDC "explain[ed] the procedures that were followed in responding to Plaintiff's FOIA request and the statutory justifications for withholding ... the identified, responsive records." Doc. No. 15-2, Bruno Viana Decl. ("Viana Decl.") ¶ 5. According to Viana:

On April 30, 2015, the CDC FOIA [O]ffice sent a memorandum to the Office of Public Health and Preparedness Response ("OPHR"), Division of Select Agents and Toxins ("DSAT"), instructing OPHPR/DSAT to review the FOIA request and search for the responsive documents .... OPHPR/DSAT was the CDC area chosen for the search because it was the area within the CDC most likely to collect and/or maintain records that related to the subject matter. OPHPR/DSAT regulates the possession, use, and transfer of select agents and toxins and the importation of infectious biological agents, hosts, and vectors of human disease to protect the public health in the United States.

The [OPHPR/] DSAT search revealed a total of eighteen (18) pages of responsive documents, including the May 12, 2014 "show cause" letter comprised of four (4) pages and the May 12, 2014 inspection report comprised of fourteen (14) pages.

Specific categories of select agent records and information are protected under 5 U.S.C. § 552(b)(3) and the Public Health Security and Bioterrorism Preparedness and Response Act of 2002, 42 U.S.C. § 262a(h).

5 U.S.C. § 552(b)(3) provides that the FOIA does not apply to matters that are specifically exempted from disclosure by a statute other than 5 U.S.C. § 552(b), if that statute "(A)(i) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or (ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld." See 5 U.S.C. § 552(b)(3)(A)(i) and (ii).

The Public Health Security and Bioterrorism Preparedness and Response Act of 2002, 42 U.S.C. § 262a, specifically prohibits DHHS/CDC from disclosing under FOIA certain information set out in Section 262a(h)(1), including:

(C) Any portion of a record that discloses the site-specific or transfer-specific safeguard and security measures used by a registered person to prevent unauthorized access to listed agents and toxins.

...

(E) Any portion of an evaluation or report of an inspection of a specific registered person conducted under subsection (f) that identifies the listed agent or toxin possessed by a specific registered person or that discloses the identity or location of a specific registered person if the agency determines that public disclosures of the information would endanger public health or safety.

The practical application of the FOIA exemptions related to select agent records requires knowledge and understanding of the applicable select agent regulations and the workings of the Federal Select Agent Program. With regard to FOIA requests for records relating to select agents, the CDC FOIA Office often seeks assistance and clarification from Federal Select Agent Program Officials to obtain background information relating to the regulations and the Federal Select Agent Program to ensure that the CDC FOIA Office has a sufficient knowledge base to apply the exemptions properly. Redactions related to select agents are not discretionary.

The CDC FOIA Office, in consultation with [OPHPR/]DSAT and the CDC Branch of the DHHS Office of General Counsel, determined that the two records responsive to Plaintiff's FOIA Request constituted records that were exempt from disclosure under 5 U.S.C. § 552(b)(3) and 42 U.S.C. § 262a(h)(1)(C) and (E).

The CDC FOIA Office, in consultation with [OPHPR/]DSAT and the CDC Branch of the HHS Office of General Counsel, further determined that the responsive records were not reasonably segregable or amenable to partial redaction because the exempt information was so inextricably intertwined with the non-exempt information contained in the records. Moreover, because the requester (Plaintiff) already knew many specific details regarding the requested documents, including exempt information such as the specific site and identity of the registered person involved in the FOIA Request, the CDC FOIA Office concluded that the release of any further details contained in the responsive documents would hinder the prevention of unauthorized access to listed agents and toxins by exposing site specific or transfer specific safeguard and security measures used by the registered person. The CDC FOIA Office also determined that the release of any further details could identify the listed agents or toxins possessed by the specific registered person.

Id. ¶¶ 8-15.

Second, the CDC offered the Declaration of Dr. Daniel M. Sosin, the acting director for OPHPR/DSAT. Doc. No. 15-9, Declaration of Dr. Daniel M. Sosin ("Sosin Decl."). OPHPR/DSAT "administers the CDC's responsibilities in the Federal Select Agent Program ("FSAP")" for the CDC. Id. ¶¶ 3, 5. Dr. Sosin explained:

FSAP responsibilities include the inspection of entities registered with FSAP for the possession, use, and transfer of [biological select agents and toxins ("BSAT") ] to ensure that these entities are in compliance with the federal BSAT regulations. Regulated entities are provided with an inspection report that includes a list of departures from the BSAT regulations. When appropriate, a "show cause" letter is issued to an entity when an inspection of an entity identifies serious regulatory departures. The "show cause" letter lists specific applicable biosafety and security weaknesses; and gives the registered entity the opportunity to provide information as to why the entity's registration should not be suspended.

Id. ¶ 5. Put differently, the Report Plaintiff requested was an FSAP report detailing the University of Hawaii's "departures from the BSAT regulations" and the Letter was FSAP's "show cause" letter identifying "serious regulatory departures." Id. See also ¶¶ 6-9.

Dr. Sosin next discussed the implications of releasing the Documents to Plaintiff:

The possession, use, and transfer of BSAT is heavily regulated because they present a very real risk of being used as a bioweapon. I believe the potential for use of a listed BSAT as a bioweapon presents a serious danger to public health and safety. In order to obtain a listed BSAT for use as a bioweapon, a person (or persons) would be aided by the knowledge of the location of a listed BSAT, perhaps the names of individuals who have lawful access to a listed BSAT, and

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