Knight First Amendment Inst. at Columbia Univ. v. Centers for Disease Control & Prevention

• Decision Date: 17 September 2021
• Docket Number: 20 Civ. 2761 (AT)
• Parties: KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY, Plaintiff, v. CENTERS FOR DISEASE CONTROL AND PREVENTION and U.S. Department of Health and Human Services, Defendants.
• Court: U.S. District Court — Southern District of New York

560 F.Supp.3d 810

KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY, Plaintiff,

v.CENTERS FOR DISEASE CONTROL AND PREVENTION and U.S. Department of Health and Human Services, Defendants.

20 Civ. 2761 (AT)

United States District Court, S.D. New York.

Signed September 17, 2021

Alexander Abraham Abdo, Jennifer Pinsof, Stephanie Krent, Knight First Amendement Institute at Columbia University, New York, NY, Anna Natalia Diakun, Knight First Amendment Institute at Columbia University, New York City, NY, for Plaintiff.

Natasha Waglow Teleanu, United States Attorney's Office, New York, NY, for Defendants Centers for Disease Control and Prevention, U.S. Department of Health and Human Services.

ORDER

ANALISA TORRES, District Judge:

Plaintiff, the Knight First Amendment Institute at Columbia University, brings this action challenging Defendants’, the Centers for Disease Control and Prevention (the "CDC") and the United States Department of Health and Human Services ("HHS"), nondisclosure of information requested by Plaintiff pursuant to the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"). The parties cross-move for summary judgment. For the reasons stated below, Defendants’ motion is DENIED, and Plaintiff's motion is GRANTED in part and DENIED in part.

BACKGROUND

On March 20, 2020, Plaintiff submitted a FOIA request to the CDC, requesting:

1. Any records relating to policies or procedures governing public communications by CDC employees or contractors about the coronavirus;

2. Any records relating to policies or procedures for the coordination of communications strategy between the CDC (or its employees) and the Coronavirus Task Force led by Vice President Pence:

3. Emails sent by CDC Public Affairs Officer Jeffrey Lancashire on or around August 31, 2017, that contain instructions for employees regarding communications with members of the news media or the public;

4. The CDC's policies on employee communications with news media and the public in effect from January 2017 to present; and

5. Any directives or guidance related to the policies on employee communications with news media and the public in effect from January 2017 to the present.

Andoh Decl. ¶ 5, ECF No. 34; Request at 4, ECF No. 1-1. Plaintiff also requested expedited processing of the documents. Request at 4–8. On March 24, 2020, the CDC acknowledged receipt, and informed Plaintiff that it was unable to comply with the statutory time limits of the expedited processing. Andoh Decl. ¶ 6; Am. Compl. ¶ 20, ECF No. 17. Two days later, the CDC informed Plaintiff by letter that requests one and two were overly broad, and asked for "additional information, such as: names and email addresses of persons within the agency in whose records you seek; a date range for records; recommended non-universal coronavirus pandemic search terms; office(s) likely to have records requested; and/or, the precise document you seek." Andoh Decl. ¶ 7. On March 27, 2020, Plaintiff replied, stating that the CDC "can limit its search" to records created after January 29, 2020, and identifying eleven custodians and three specific offices as "particular custodians who [it thinks] are likely to have responsive records." ECF No. 23-1.

On March 30 and April 8, 2020, based on enterprise¹ and manual searches, the CDC identified no documents responsive to request three, one document responsive to request four, and two documents responsive to request five. Andoh Decl. ¶¶ 10, 13.

On April 6, 2020, the CDC ran an enterprise search for documents responsive to requests one and two, which returned approximately 60,000 responsive documents. Id. ¶¶ 12, 14. After consulting with "agency subject matter experts," the CDC refined the search parameters to include the terms: media strategy, covid communication, centralized communications, social media and news media, and communication strategy. Id. ¶ 15. On May 6, 2020, the CDC used these terms to search the email inboxes of ten of Plaintiff's eleven suggested custodians, the locations which an agency subject matter expert "determined ... were the most likely to contain documents responsive to the terms of Plaintiff's request." Id. ; Supp. Andoh Decl. ¶ 11 n.1, ECF No. 42. This search uncovered a total of 525 electronically identified responsive documents and 196 manually identified responsive documents. Andoh Decl. ¶ 17.

On April 2, 2020, Plaintiff initiated this action, challenging the CDC's denial of expedited processing. ECF No. 1. On May 8, 2020, after the CDC had not responded to the requests within the statutory time period, Plaintiff amended its complaint to challenge that failure. Am. Compl.

On June 4, 2020, the Court ordered the CDC to produce, by June 9, 2020, "(i) the CDC's currently operative employee communications or speech policies and (ii) any policies or guidelines concerning the coordination of statements and/or public appearances with the Office of Vice President Mike Pence or the White House Coronavirus Task Force...." ECF No. 24. By July 6, 2020, the CDC was to produce the balance of the records. Id. The CDC produced documents on June 9 and July 6, 2020, totaling 629 pages of records, including 529 pages withheld in full or in part under FOIA Exemptions 5 and 6. Andoh Decl. ¶ 18. The CDC subsequently reviewed the documents and released certain of the previously withheld documents. Id.

On September 4, 2020, Defendants moved for summary judgment regarding Plaintiff's challenge to certain of the CDC's withholdings under Exemption 5, and on September 18, 2020, Plaintiff cross-moved for partial summary judgment.

ECF Nos. 32, 38. On December 10, 2020, the parties informed the Court that three of the challenged documents were no longer in dispute because the CDC had removed the Exemption 5 withholdings. ECF Nos. 47–48.

DISCUSSION

I. Legal Standard

A. Summary Judgment

A moving party is entitled to summary judgment when the record shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) ; Celotex Corp. v. Catrett , 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Feingold v. New York , 366 F.3d 138, 148 (2d Cir. 2004). A genuine dispute exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Material facts are those which, under the governing law, may affect the outcome of a case. Id. The moving party must establish the absence of a genuine dispute of material fact by citing to particulars in the record. Fed. R. Civ. P. 56(a), (c) ; Celotex , 477 U.S. at 322–25, 106 S.Ct. 2548 ; Koch v. Town of Brattleboro , 287 F.3d 162, 165 (2d Cir. 2002). If the movant satisfies this burden, the opposing party must then "come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting Fed. R. Civ. P. 56(e) ). When deciding the motion, the Court must view the record in the light most favorable to the non-moving party, O'Hara v. Weeks Marine, Inc. , 294 F.3d 55, 61 (2d Cir. 2002), although speculation and conclusory assertions are insufficient to defeat summary judgment, see Niagara Mohawk Power Corp. v. Jones Chem. Inc. , 315 F.3d 171, 175 (2d Cir. 2003).

B. FOIA

FOIA, enacted to promote honest and open government, "calls for broad disclosure of Government records." N.Y. Times Co. v. U.S. Dep't of Just. , 756 F.3d 100, 111 (2d Cir. 2014) (quotation marks and citation omitted). Under FOIA, the government must "disclose agency records upon request" unless the documents "fall within one of [the law's] enumerated exemptions." Amnesty Int'l USA v. C.I.A. , 728 F. Supp. 2d 479, 500 (S.D.N.Y. 2010) (citations omitted). The exemptions should be construed narrowly, but because "public disclosure is not always in the public interest," the exemptions nonetheless merit "meaningful reach and application." Human Rights Watch v. Dep't of Just. Fed. Bur. of Prisons , No. 13 Civ. 7360, 2015 WL 5459713, at *3 (S.D.N.Y. Sept. 16, 2015) (citations omitted).

Challenges to a government agency's FOIA response are generally resolved on a motion for summary judgment. See N.Y. Times Co. v. U.S. Dep't of Just. , 915 F. Supp. 2d 508, 531 (S.D.N.Y. 2013), aff'd in part, rev'd in part, and remanded , 756 F.3d 100 (2d Cir. 2014). "In order to prevail on a motion for summary judgment in a FOIA case, the defending agency has the burden of showing that its search was adequate and that any withheld documents fall within an exemption to the FOIA." Carney v. U.S. Dep't of Just. , 19 F.3d 807, 812 (2d Cir. 1994). This burden can be sustained through the use of "[a]ffidavits or declarations ... giving reasonably detailed explanations why any withheld documents fall within an exemption[.]" Wilner v. NSA , 592 F.3d 60, 69 (2d Cir. 2009). All doubts as to the applicability of an exemption must be resolved in favor of disclosure. N.Y. Times Co. , 756 F.3d at 112 (quotation marks and citation omitted); Wilner , 592 F.3d at 69. That said, Government affidavits are "accorded a presumption of good faith." Grand Cent. P'ship, Inc. v. Cuomo , 166 F.3d 473, 489 (2d Cir. 1999) (quoting Carney v. U.S. Dep't of Just. , 19 F.3d 807, 812 (2d Cir. 1994) ). "Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears logical or plausible." Wilner , 592 F.3d at 73 (citation omitted). On the other hand, "[s]ummary judgment in favor of the FOIA plaintiff is appropriate when an agency seeks to protect material which, even on the agency's version of the facts, falls outside the proffered exemption." Bloomberg L.P. v. Bd. of Governors of Fed. Rsrv. Sys. , 649 F. Supp. 2d 262, 271 (S.D.N.Y. 2009) (citations and alterations omitted).

II. Reasonable Search

The agency bears the burden to demonstrate "beyond material...