McCutchen v. U.S. Dept. of Health and Human Services, Nos. 92-5372

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore EDWARDS, BUCKLEY, and SENTELLE; BUCKLEY
Citation30 F.3d 183
Decision Date05 August 1994
Docket NumberNos. 92-5372
PartiesDr. Charles W. McCUTCHEN, Appellee/Cross-Appellant, v. U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Appellant/Cross-Appellee. & 92-5389.

Page 183

30 F.3d 183
308 U.S.App.D.C. 121
Dr. Charles W. McCUTCHEN, Appellee/Cross-Appellant,
v.
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Appellant/Cross-Appellee.
Nos. 92-5372 & 92-5389.
United States Court of Appeals,
District of Columbia Circuit.
Argued Feb. 2, 1994.
Decided Aug. 5, 1994.

Page 184

Appeals from the United States District Court for the District of Columbia (D.D.C. No. 91cv00142).

Miriam McIntire Nisbet, Atty., U.S. Dept. of Justice, Washington, DC, argued the cause for the Dept. of Health and Human Services. With her on the briefs were John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., Washington, DC.

Ronald A. Lindsay, Washington, DC, argued the cause for Dr. Charles McCutchen. With him on the briefs was Joseph R. Damato, Washington, DC.

Robert P. Charrow, Tom Watson, and Joseph N. Onek, Washington, DC, were on the brief for amici curiae The American Counsel on Education, et al. Stuart H. Newberger, Washington, DC, entered an appearance for amici curiae.

Before EDWARDS, BUCKLEY, and SENTELLE, Circuit Judges.

Opinion for the court filed by Circuit Judge BUCKLEY.

BUCKLEY, Circuit Judge:

Dr. Charles McCutchen filed a request under the Freedom of Information Act for a list of all investigations of scientific misconduct undertaken by the Department of Health and Human Services' Office of Scientific Integrity. The Department released this list, but in all cases where there had been no finding of wrongdoing, it deleted the names of both the investigated scientists ("respondents") and the individuals who had made the allegations of misconduct ("complainants"). After Dr. McCutchen sued to compel disclosure of these names, the district court ordered the Department to disclose those of the respondents but permitted it to withhold those of the complainants. The Department appeals and Dr. McCutchen cross-appeals from this order. Because we find that the privacy interests of both the respondents and the complainants outweigh the public interest in disclosure, we reverse the ruling requiring disclosure of the respondents' names and affirm the ruling approving the withholding of the complainants' names.

I. BACKGROUND

A. Freedom of Information Act

We recently observed that "[t]he purpose of the Freedom of Information Act, 5 U.S.C. Sec. 552 (1988) ("FOIA"), is to facilitate public access to Government documents" and that "[FOIA] is meant to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Beck v. Dep't of Justice, 997 F.2d 1489, 1490 (D.C.Cir.1993) (internal quotation marks and citations omitted). Despite its goal of broad disclosure, FOIA allows agencies to withhold documents that fit within one of nine exemptions. See 5 U.S.C. Sec. 552(b). In the instant case, the Department of Health and Human Services ("HHS") invoked Exemptions 6, 7(C), and 7(D) to justify withholding the information requested by Dr. McCutchen. Exemption 6 protects "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." Id. Sec. 552(b)(6). Exemption 7(C) allows withholding of

records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ... could reasonably be expected to constitute an unwarranted invasion of personal privacy.

Id. Sec. 552(b)(7)(C).

Comparing the language of these two provisions, the Supreme Court has noted:

Page 185

[W]hereas Exemption 6 requires that the invasion of privacy be "clearly unwarranted," the adverb "clearly" is omitted from Exemption 7(C) ... [and] whereas Exemption 6 refers to disclosures that "would constitute" an invasion of privacy, Exemption 7(C) encompasses any disclosure that "could reasonably be expected to constitute" such an invasion.

Department of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 756, (1989). "Thus, the standard for evaluating a threatened invasion of privacy interests ... is somewhat broader" under Exemption 7(C) than under Exemption 6. Id.

Both Exemptions 6 and 7(C) call for a balancing of "the privacy interests that would be compromised by disclosure against the public interest in release of the requested information." Beck, 997 F.2d at 1491 (internal quotation marks and citations omitted). On the public interest side of the scale is "the citizens' right to be informed about what their government is up to." Id. (internal quotation marks and citations omitted).

Exemption 7(D), which HHS invoked only to justify withholding the complainants' names, shields "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ... could reasonably be expected to disclose the identity of a confidential source...." 5 U.S.C. Sec. 552(b)(7)(D).

Under FOIA, the burden is on the agency to justify withholding requested information and the agency's refusal to disclose it is subject to de novo review by the district court. Id. Sec. 552(a)(4)(B).

B. Office of Scientific Integrity

When this suit was filed in the district court, the Public Health Service Act ("PHSA"), 42 U.S.C. Secs. 201 et seq. (1988), required HHS to demand that all applicants for research funding establish "an administrative process to review reports of scientific fraud" and "report to the Secretary [of HHS] any investigation of alleged scientific fraud which appears substantial." Id. Sec. 289b(a). In addition, the Director of the National Institutes of Health ("NIH"), an HHS official, was required to "establish a process for the prompt and appropriate response to information ... respecting scientific fraud in connection with projects" funded by the PHSA. Id. Sec. 289b(b). In accordance with this mandate, HHS created the Office of Scientific Integrity ("OSI") to "oversee[ ] the implementation of all ... policies and procedures related to scientific misconduct." 42 C.F.R. Sec. 50.102. "Misconduct" includes "fabrication, falsification, plagiarism, or other practices that seriously deviate from those that are commonly accepted within the scientific community for proposing, conducting, or reporting research." Id.

After this suit was filed, Congress amended the PHSA, see National Institutes of Health Revitalization Act of 1993, Pub.L. No. 103-43 Sec. 161 (1993); and HHS abolished OSI, transferring its functions to the Office of the Assistant Secretary for Health, see 57 Fed.Reg. 24,262 (1992). While still extant, however, OSI investigated research performed within NIH as well as research performed at outside institutions that receive PHSA funds, such as universities. Allegations of misconduct involving research by a recipient institution could be investigated by that institution or by OSI. OSI supervised all investigations conducted by outside institutions, however, and could perform its own inquiry if not satisfied. If OSI found misconduct, it could recommend sanctions, including disciplinary action against government researchers and termination of funding and debarment from future grants for outside researchers.

C. Procedural History

On February 7, 1990, Dr. McCutchen, a scientist, submitted a FOIA request to HHS for "a list of all cases closed by the Office of Scientific Integrity." On March 6, 1990, HHS turned over final reports for the four investigations in which OSI had found misconduct. By letter dated July 5, 1990, HHS notified Dr. McCutchen that it was withholding information on investigations in which OSI had made no finding of misconduct because disclosure of such information would constitute "a clearly unwarranted invasion of

Page 186

the subject individual or individuals [sic] personal privacy" under FOIA Exemption 6.

After exhausting his administrative remedies, Dr. McCutchen filed suit in the district court on January 23, 1991. According to his complaint, he sought to compel disclosure of "information listing cases closed by OSI where there was no finding of scientific misconduct." On March 29, 1991, HHS released to Dr. McCutchen a list of OSI's closed cases consisting of six columns: (1) the case number, (2) the institution involved, (3) the complainant, (4) the respondent, (5) the OSI staff member assigned to the case, and (6) the date the case was closed. Deleted from this list, however, were the names of all non-institutional complainants, the names of all respondents other than those who had died or been found guilty of wrongdoing, and the name of any institution whose disclosure might have enabled Dr. McCutchen to discover the identity of a respondent. In an accompanying letter, HHS asserted that the deletions were based on FOIA Exemptions 6, 7(C), and 7(D).

Both Dr. McCutchen and HHS moved for summary judgment, and the district court granted each motion in part and denied each in part, McCutchen v. HHS, C.A. No. 91-142 (D.D.C. filed Aug. 24, 1992) ("Mem. op.") at 14-15, holding that Exemption 7(C) permitted HHS to withhold the names of the complainants but not those of the respondents. The court determined that the requested information had been "compiled for law enforcement purposes" and thus satisfied the threshold requirement of Exemption 7. Id. at 7. Turning to whether Exemption 7(C) protected the names of the respondents, the district court decided that...

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    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • January 30, 2009
    ...agency was engaged in illegal activity. 72 F.3d at 905. Similarly, in McCutchen v. United States Department of Health and Human Services, 30 F.3d 183, 188 (D.C.Cir.1994), we found no public interest because the "mere desire to review how an agency is doing its job, coupled with allegations ......
  • Nat'l Day Laborer Org. Network v. United States Immigration & Customs Enforcement Agency, No. 10 Civ. 3488(SAS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • August 8, 2011
    ...84. Aguirre, 551 F.Supp.2d at 53. 85. 5 U.S.C. § 552(b)(7)(C). 86. See McCutchen v. United States Dep't of Health and Human Servs., 30 F.3d 183, 185 (D.C.Cir.1994). 87. United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 756, 109 S.Ct. 1468, 103 L.Ed.2d......
  • Detroit Free Press Inc. v. U.S. Dep't of Justice, No. 14-1670
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • July 14, 2016
    ...(the fact of an individual's conviction and corresponding 829 F.3d 482 docket number); McCutchen v. U.S. Dep't of Health & Human Servs. , 30 F.3d 183, 187–88 (D.C. Cir. 1994) (a researcher's investigation and exoneration for academic-integrity concerns); Kiraly v. FBI , 728 F.2d 273, 277 (6......
  • Nat'l Whistleblower Ctr. v. Dep't of Health & Human Servs., Civil Action No. 10–2120 (JEB).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • March 28, 2012
    ...those individuals' personal privacy by causing embarrassment and reputational harm. See McCutchen v. Dep't of Health and Human Services, 30 F.3d 183, 187–88 (D.C.Cir.1994); Carter v. Dep't of Commerce, 830 F.2d 388 (D.C.Cir.1987). The subjects of these statements thus have a privacy interes......
  • Request a trial to view additional results
49 cases
  • Consumers' Checkbook Center v. U.S. Dept. Health, No. 07-5343.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • January 30, 2009
    ...agency was engaged in illegal activity. 72 F.3d at 905. Similarly, in McCutchen v. United States Department of Health and Human Services, 30 F.3d 183, 188 (D.C.Cir.1994), we found no public interest because the "mere desire to review how an agency is doing its job, coupled with allegations ......
  • Nat'l Day Laborer Org. Network v. United States Immigration & Customs Enforcement Agency, No. 10 Civ. 3488(SAS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • August 8, 2011
    ...84. Aguirre, 551 F.Supp.2d at 53. 85. 5 U.S.C. § 552(b)(7)(C). 86. See McCutchen v. United States Dep't of Health and Human Servs., 30 F.3d 183, 185 (D.C.Cir.1994). 87. United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 756, 109 S.Ct. 1468, 103 L.Ed.2d......
  • Detroit Free Press Inc. v. U.S. Dep't of Justice, No. 14-1670
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • July 14, 2016
    ...(the fact of an individual's conviction and corresponding 829 F.3d 482 docket number); McCutchen v. U.S. Dep't of Health & Human Servs. , 30 F.3d 183, 187–88 (D.C. Cir. 1994) (a researcher's investigation and exoneration for academic-integrity concerns); Kiraly v. FBI , 728 F.2d 273, 277 (6......
  • Nat'l Whistleblower Ctr. v. Dep't of Health & Human Servs., Civil Action No. 10–2120 (JEB).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • March 28, 2012
    ...those individuals' personal privacy by causing embarrassment and reputational harm. See McCutchen v. Dep't of Health and Human Services, 30 F.3d 183, 187–88 (D.C.Cir.1994); Carter v. Dep't of Commerce, 830 F.2d 388 (D.C.Cir.1987). The subjects of these statements thus have a privacy interes......
  • Request a trial to view additional results

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