Civil Beat Law Ctr. for the Pub. Interest, Inc. v. Control

• Decision Date: 10 July 2019
• Docket Number: No. 16-16960,16-16960
• Citation: 929 F.3d 1079
• Parties: CIVIL BEAT LAW CENTER FOR THE PUBLIC INTEREST, INC., Plaintiff-Appellant, v. CENTERS FOR DISEASE CONTROL & PREVENTION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

929 F.3d 1079

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

v.CENTERS FOR DISEASE CONTROL & PREVENTION, Defendant-Appellee.

No. 16-16960

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 9, 2018 Honolulu, Hawai’i

Filed July 10, 2019

R. Brian Black (argued), Civil Beat Law Center for the Public Interest Inc., Honolulu, Hawaii, for Plaintiff-Appellant.

Anne Murphy (argued) and Matthew Collette, Appellate Staff; Kenji M. Price, United States Attorney; Civil Division, United States Department of Justice, Washington, D.C.; for Defendant-Appellee.

Before: Kim McLane Wardlaw, Marsha S. Berzon, and Johnnie B. Rawlinson, Circuit Judges.

BERZON, Circuit Judge:

Anonymous letters containing deadly anthrax spores were mailed to several media companies and congressional offices in September 2001. Five individuals were killed; seventeen others were sickened. U.S. Dep’t of Justice, Amerithrax Investigative Summary 1–3 (2010), https://www.justice.gov/archive/amerithrax/docs/amx-investigative-summary.pdf. In the wake of these attacks, Congress moved "to improve the ability of the United States to prevent, prepare for, and respond to bioterrorism and other public health emergencies." H.R. Rep. No. 107-481, at 1 (2002) (Conf. Rep.), reprinted at 2002 U.S.C.C.A.N. 464, 464. The resulting legislation is the Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (BPRA), Pub. L. No. 107-188, 116 Stat. 594 (codified as amended at scattered sections of 7, 18, 21, 29, 38, 42, and 47 U.S.C.).

Title II of BPRA is directed at improving the safety and security of dangerous biological agents and toxins located throughout the United States. Toward this goal, BPRA directed the federal Department of Health and Human Services (HHS) to "establish and maintain a list of each biological agent and each toxin that has the potential to pose a severe threat to public health and safety," 42 U.S.C. § 262a(a)(1)(A), and to create a system for "registration with [HHS] of the possession, use, and transfer of listed agents and toxins," id. § 262a(d)(1). Registered entities must comply with "appropriate safeguard[s] [established by HHS] ... for persons possessing, using, or transferring a listed agent or toxin." Id. § 262a(e)(1).

In addition to these safeguards, BPRA exempts certain federal agencies from disclosing specified types of information regarding biological agents and toxins in response to a Freedom of Information Act (FOIA) request. See id. § 262a(h)(1). Relying on this exemption, the Centers for Disease Control and Prevention (CDC) withheld information from a FOIA response pertaining to a biological research laboratory ("biolab") located at the University of Hawai’i. Much of the withheld information was already publicly available. The primary question before us is whether the CDC properly refused to disclose the requested information.

I

The University of Hawai’i at Manoa (UH) maintains a biolab that is "the only facility of its kind for researchers in the entire State." UH publicizes the biolab’s location at "the Biosciences Building" on "the Kaka‘ako campus, near downtown Honolulu." Facilities , Dep’t Tropical Med., Med. Microbiology & Pharmacology, http://manoa.hawaii.edu/tropicalmedicine/?page_id=925 (last updated June 20, 2014). According to the UH website, researchers at the UH biolab study a number of highly dangerous biotoxins, including botulinum neurotoxins, the Ebola

virus, Tetrodotoxin, Brucella abortus , Brucella melitensis , Brucella suis , Burkholderia pseudomallei , Burkholderia pseudomallei , the Nipah virus, Ralstonia solanacearum , and Xanthomonas oryzae .

News reports in 2014 revealed that the CDC had uncovered "widespread regulatory noncompliance" at the UH biolab, relating to UH’s failure to meet certain standards for biotoxin safety and security. In response to these reports, Civil Beat Law Center, a government watchdog group in Hawai’i, filed a FOIA request with the CDC seeking two documents: (1) a May 2014 CDC inspection report detailing the regulatory violations found at the UH biolab; and (2) a May 2014 letter from the CDC demanding that UH "show cause" for why the UH biolab’s registration to possess, use, and transfer biological agents and toxins should not be suspended or revoked. The CDC denied both requests, maintaining that the records sought were "specifically exempted from disclosure by 42 U.S.C. § 262a(h)(1)(C) and (E)." Civil Beat requested reconsideration, which the CDC also denied.

Seeking to compel disclosure of the two disputed documents, Civil Beat filed suit under FOIA. The parties filed cross-motions for summary judgment, with the CDC continuing to assert that no disclosure at all of the requested documents was required.

A few weeks later, the CDC changed positions. In response to Civil Beat’s motion for summary judgment, the CDC included redacted versions of the requested records. The redactions in the newly disclosed documents fell into three categories:

The first two categories of redactions were based on exemptions found in BPRA. First, the CDC redacted information concerning the specific regulatory violations found at UH, asserting that "public disclosure of the redacted information ... would endanger public health or safety because it could assist unauthorized individuals to obtain illegal access to listed agents." See 42 U.S.C. § 262a(h)(1)(E) ("No Federal agency ... shall disclose ... [a]ny portion of an evaluation or report of an inspection ... 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 disclosure of the information would endanger public health or safety."). Second, the CDC redacted all references to UH, its employees, and the laboratory, because revealing any of that information "would inform individuals with nefarious intentions of site-specific weaknesses in the safeguards and/or security measures employed by the particular registered entity at a particular location." See 42 U.S.C. § 262a(h)(1)(C) ("No Federal agency ... shall disclose ... [a]ny 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.").

Third, the CDC redacted "[t]he names and telephone numbers of individual [Division of Select Agents and Toxins] staff members" who conducted the UH inspection, based on "the sensitive nature of the select agent information that these staff members possess and process." These redactions were based on FOIA Exemption 6, covering "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6).

Unsatisfied, Civil Beat opposed all three categories of redactions. It also argued, in the alternative, that if the district court determined that the BPRA exemptions were possibly applicable, the district court should conduct in camera review of the unredacted documents to determine whether the redactions were in fact proper.

The district court granted the CDC’s summary judgment motion in nearly all respects. Civil Beat Law Ctr. for the Pub. Interest, Inc. v. CDC , 204 F. Supp. 3d 1132, 1134 (D. Haw. 2016). The court held the redactions justified under BPRA appropriate, and the withholding of the names and contact information of CDC employees proper under FOIA Exemption 6. Id. at 1144–48. Civil Beat timely appealed.

II

Congress enacted FOIA "to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." U.S. Dep’t of State v. Ray , 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991) (quoting Dep’t of Air Force v. Rose , 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) ). Providing information to the public under FOIA, it was hoped, would "ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co. , 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978).

Toward this goal, FOIA "requires federal agencies to make Government records available to the public, subject to nine exemptions for specific categories of material." Milner v. Dep’t of Navy , 562 U.S. 562, 564, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011). "These exemptions are ‘explicitly made exclusive,’ and must be ‘narrowly construed.’ " Id. at 565, 131 S.Ct. 1259 (citations omitted) (first quoting EPA v. Mink , 410 U.S. 73, 79, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973) ; then quoting FBI v. Abramson , 456 U.S. 615, 630, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982) ). Given FOIA’s overarching purpose, "the strong presumption in favor of disclosure places the burden on the agency to justify the withholding of any requested documents." Ray , 502 U.S. at 173, 112 S.Ct. 541.

This case concerns two FOIA exemptions, Exemption 3 and Exemption 6. Exemption 3 applies to any material that is "specifically exempted from disclosure by statute" if, as relevant here, the statute "establishes particular criteria for withholding or refers to particular types of matters to be withheld." 5 U.S.C. § 552(b)(3)(A)(ii). Exemption 6 allows agencies to withhold "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." Id. § 552(b)(6). We consider each exemption in turn.

A

Exemption 3 does not itself provide the standards for an exemption from disclosure but instead incorporates other applicable statutory exemptions. See id. § 552(b)(3)(A)(ii). We use a two-step inquiry in considering whether withholding under Exemption 3 is proper. "First, we determine whether the withholding statute meets the requirements of Exemption 3. Then, we determine whether the requested information...