Henke v. U.S. Dept. of Commerce

• Decision Date: 17 May 1996
• Docket Number: No. 95-5181,95-5181
• Citation: 83 F.3d 1445
• Parties: Wanda HENKE and Robert Henke, Appellants, v. UNITED STATES DEPARTMENT OF COMMERCE and National Science Foundation, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1445

83 F.3d 1445

317 U.S.App.D.C. 397

Wanda HENKE and Robert Henke, Appellants, v. UNITED STATES DEPARTMENT OF COMMERCE and National Science

Foundation, Appellees.

No. 95-5181.

United States Court of Appeals, District of Columbia Circuit.

Argued March 19, 1996.

Decided May 17, 1996.

Appeal from the United States District Court for the District of Columbia, (No. 94cv00189).

Eric R. Glitzenstein, Washington D.C., argued the cause, for appellants. Katherine A. Meyer was on brief.

Wendy M. Keats, Attorney, United States Department of Justice, Washington D.C., argued the cause, for appellees. Frank W. Hunger, Assistant Attorney General, Eric H. Holder, Jr., United States Attorney, and Leonard Schaitman, Attorney, United States Department of Justice, were on brief.

Before: WALD, GINSBURG and HENDERSON, Circuit Judges.

Opinion for the court filed by Circuit Judge HENDERSON.

KAREN LeCRAFT HENDERSON, Circuit Judge:

At issue in this Privacy Act case is the decision of the National Science Foundation (NSF) not to identify who among twelve peer reviewers prepared written evaluations of an ultimately unsuccessful research grant proposal. NSF withheld their names pursuant to Privacy Act exemption (k)(5) which protects the identity of a source who, under an express promise of confidentiality, provides an agency with information regarding, inter alia, the suitability or qualifications of an applicant for a federal contract. The district court granted NSF summary judgment and we affirm.

I.

NSF is an independent agency of the federal government charged with promoting scientific and engineering progress in the United States. 42 U.S.C. §§ 1861 et seq. NSF does not itself conduct research. Instead the agency operates a number of programs designed to initiate, support and promote basic research in the physical, natural and social sciences. NSF has traditionally used grant agreements to support scientific research projects. The agency receives grant proposals primarily from educational institutions but also from commercial firms (typically small businesses) and, less frequently, from individuals. Joint Appendix (JA) 17. Each proposal must name a principal investigator or "PI," the scientist responsible for conducting the research and publishing the results. JA 176. The PI is the key figure behind an NSF grant.

NSF is heavily dependent on an advisory "peer review" process to evaluate grant proposals. JA 152. That is, an NSF grant proposal is reviewed by outside experts knowledgeable in the particular scientific or engineering field represented by the proposal. Reviewers are asked to evaluate a proposal according to four general criteria, one of which assesses the applicant's research performance competence, including the capability of the investigator. JA 86. NSF either solicits peer reviews by mail or assembles a panel of peer reviewers to review grant proposals. JA 88.

Panel review typically works like this. A peer review panel convenes to consider a large number of proposals. In addition to full panel consideration, each proposal receives several written evaluations drafted by individual panel members. The full panel rates each proposal either "highly recommended," "recommended" or "not recommended." JA 145. An NSF Program Officer then considers the written reviews, the panel recommendation and other factors and makes a funding recommendation. Id. NSF supervisory personnel then review the Program Officer's recommendation and, after weighing various considerations, decide whether to fund the proposal. JA 143.

When NSF rejects a grant proposal the agency notifies the PI and furnishes a summary of the review panel's discussion (if any) as well as verbatim copies of written reviews but redacts the authors' names. JA 312. NSF's policy is to protect the confidentiality of all of the peer reviewers who draft written comments. See infra Part III. As the General Accounting Office (GAO) has observed, "Confidentiality ... helps ensure that peer reviewers will give candid comments on grant applications by protecting reviewers from possible reprisal by applicants." GAO Report, Peer Review: Compliance With the Privacy Act and Federal Advisory Committee Act (1991) ("GAO Report") at 4 (JA 226).

II.

Dynamic In Situ Geotechnical Testing, Incorporated (Dynamic) submitted a grant proposal to NSF in April 1993. Dynamic's application listed appellants Wanda and Robert Henke (Dynamic's co-owners) as the project's PI and co-PI, respectively, meaning that they were the scientists responsible for carrying out the research. A peer review panel consisting of twelve experts from universities and other government agencies convened in August 1993 to evaluate Dynamic's proposal and thirty-six others. Before the meeting four of the twelve panelists had each prepared written comments regarding Dynamic's proposal. The panel recommended against funding the proposal and NSF ultimately denied funding. Thereafter the agency, in accordance with its standard practice, notified Wanda Henke and provided her with a summary of the panel discussion and verbatim copies of the four written reviews with authors' names redacted.

Wanda Henke then filed with NSF a Privacy Act request seeking the names of the four peer reviewers who prepared the written comments as well as the names of the other eight panel members who evaluated Dynamic's proposal. ¹ In response NSF disclosed the names of the twelve panel members but refused to indicate which four authored the written comments. NSF relied on 45 C.F.R. § 613.6(a) which implements Privacy Act exemption (k)(5). ² Exemption (k)(5) provides that an agency may promulgate rules to exempt from the Privacy Act's access provisions a system of records that is

investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment, military service, Federal contracts, or access to classified information, but only to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence.

5 U.S.C. § 552a(k)(5) (emphasis added). NSF has construed "Federal contracts" in exemption (k)(5) to encompass NSF grant agreements. 45 C.F.R. § 613.6(a).

In February 1994 the Henkes filed this Privacy Act suit seeking the names of the four peer reviewers. See 5 U.S.C. § 552a(g)(1)(B), (g)(3)(A). On cross-motions for summary judgment the plaintiffs argued that exemption (k)(5) was inapplicable on the grounds that (1) the reviewers did not act under an express promise of confidentiality and (2) the reviewers provided information in connection with an application for a federal grant, not a federal contract. The district court granted NSF summary judgment on both issues and the plaintiffs appeal. Our review is de novo. Sellers v. Bureau of Prisons, 959 F.2d 307, 310 (D.C.Cir.1992). We address each issue in turn.

III.

Exemption (k)(5) protects the identity of a source only if he "furnished information to the Government under an express promise that the identity of the source would be held in confidence." The four peer reviewers who drafted comments in connection with Dynamic's proposal used an NSF evaluation form which informed them that "[i]t is the policy of the Foundation that reviews will not be disclosed to persons outside the Government except that verbatim copies without the name and affiliation of the reviewer will be sent to the principal investigator." JA 98. The form further states that "the identity of reviewers will be kept confidential to the maximum extent possible." Id. This of course constitutes an express promise of confidentiality. NSF has presumed that a peer reviewer asked to draft a review of an NSF grant proposal and assess the PI's capabilities not only desires an assurance of confidentiality but would not provide a candid review (i.e., a critical, thorough review) without it. Cf. Department of Justice v. Landano, 508 U.S. 165, 178-181, 113 S.Ct. 2014, 2023-24, 124 L.Ed.2d 84 (1993) (although presumption is not all encompassing, government entitled to presume FBI source is confidential where generic circumstances, such as use of paid informants, support inference of confidentiality in FOIA exemption 7(D) context). The record contains scientists' affidavits and refers to studies showing that absent reviewer anonymity the quality of reviews likely would suffer and, indeed, many (if not most) peer reviewers would decline to assist NSF or would do so less often. ³ Reviewers fear harassment and lawsuits from disgruntled PIs, Aff. of Dr. Aubrey M. Bush, NSF Program Manager at 2 (JA 153), and "quite naturally do not want to offend a colleague whom they may like as a person, or hope to work with in the future," Aff. of Dr. Constance A. Sancetta, NSF Associate Program Manager at 2 (JA 155), especially "senior researchers in positions of authority," Aff. of Daniel J. Madden, NSF Program Director at 2 (JA 166). Furthermore, because peer reviewers and PIs often switch hats--a peer reviewer may be the PI on a future grant application and vice versa--an identified peer reviewer might fear reprisal at the hands of a disgruntled PI. Sancetta Aff. at 2 (JA 155). It bears emphasizing that many specialized scientific communities are relatively small. Aff. of Dr. Stephen J. Mackwell, NSF Program Director at 1 (JA 163). In sum we hold that there is sufficient evidence on this record to show that each of the four peer reviewers asked to draft written comments on Dynamic's proposal furnished information to NSF under an express promise that NSF would hold in confidence his or her identity.

The plaintiffs contend that the requirement in subsection (k)(5) for an express promise of confidentiality is not satisfied unless the agency can demonstrate that the reviewers requested or desired non-disclosure. The district...