People for the Ethical Treatment Animals v. Dep't of Health & Human Servs., Civil Action No. 17-cv-1395 (TSC)

• Decision Date: 01 June 2020
• Docket Number: Civil Action No. 17-cv-1395 (TSC)
• Citation: 464 F.Supp.3d 385
• Parties: PEOPLE FOR the ETHICAL TREATMENT OF ANIMALS, Plaintiff, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.
• Court: U.S. District Court — District of Columbia

464 F.Supp.3d 385

PEOPLE FOR the ETHICAL TREATMENT OF ANIMALS, Plaintiff,

v.DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.

Civil Action No. 17-cv-1395 (TSC)

United States District Court, District of Columbia.

Signed June 1, 2020

Gabriel Zane Walters, David Albert Schwartz, Pro Hac Vice, Peta Foundation, Washington, DC, for Plaintiff.

Paul Cirino, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

TANYA S. CHUTKAN, United States District Judge

Plaintiff People for the Ethical Treatment of Animals (PETA) has sued under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, et seq. , challenging certain responses to a FOIA request it submitted to the National Institutes of Health (NIH), a component of Defendant Department of Health and Human Services (HHS). Before the court is HHS's Motion for Summary Judgment. (ECF No. 16, MSJ.) For the following reasons, the court will grant in part and deny in part HHS's motion.

I. BACKGROUND

A. PETA's FOIA Request

PETA requested:

For the period covering May 1, 2014 to July 31, 2014, copies of all e-mails sent and/or received by Francis Collins and/or Kathy Hudson regarding maternal deprivation experiments conducted on rhesus macaques at the NIH's facility in Poolesville, Maryland.

(ECF. No. 16-1, Decl. of Garcia-Malene ¶ 4.) PETA also requested that the search include documents located in Collins’ and Hudson's Gmail accounts, as well as any other private e-mail accounts they used during the specified time period. (Id. )

NIH's Office of the Executive Secretariat (Exec Sec) searched Collins’ work email using three terms ("maternal deprivation", "Poolesville", and "rhesus macaque") and found no responsive documents. (Id. ¶ 6.) Exec Sec also searched the NIH Outlook repository using the same terms and found four items. (Id. ¶ 7.) Finally, Exec Sec searched Collins’ personal Gmail account using 17 terms, including the three used in the other searches, and found an unspecified number of items. (Id. ¶ 8.) It sent all the search results to the NIH FOIA office for review, and that office found 42 pages responsive. (Id. ¶ 9.) NIH produced this material to PETA, with redactions under Exemptions 5 and 6 on 31 of the pages. (Id. )

Hudson's assistant Kathy Abel searched Hudson's personal Gmail and NIH email accounts using six terms ("maternal deprivation", "Poolesville", "rhesus macaque", "monkeys", "Goodall", and "PETA") and located 200 pages, which Abel provided to the NIH FOIA Office for review. (Id. ¶ 12.) The FOIA Office found all 200 pages responsive, and on October 30, 2017 turned over 71 pages in full and 30 pages in part, withholding the remaining 99 in their entirety under Exemptions 5 and 6. (Id. ¶¶13, 16.)

On February 8, 2018, HHS changed course and notified PETA that "after further review of the previously released records ... [HHS has] concluded that 119 pages are not responsive to the request, and we have therefore pulled these pages from the group that remain contested in the litigation from which the request stems." (Id. ¶ 14.) HHS then filed its motion for summary judgment.

II. LEGAL STANDARDS

A. Summary Judgment

Summary judgment is appropriate if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see also Celotex Corp. v. Catrett , 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Waterhouse v. Dist. of Columbia , 298 F.3d 989, 991 (D.C. Cir. 2002). A court may enter summary judgment on a "claim or defense ... or [a] part of each claim or defense." Fed. R. Civ. P. 56(a). A dispute of fact is "genuine" only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is "material" only when it involves facts "that might affect the outcome of the suit under the governing law." Id. at 248, 106 S.Ct. 2505. "[F]actual disputes that are ‘irrelevant or unnecessary’ do not affect the summary judgment determination." Holcomb v. Powell , 433 F.3d 889, 895 (D.C. Cir. 2006) (quoting Liberty Lobby , 477 U.S. at 248, 106 S.Ct. 2505 ). The party seeking summary judgment "bears the heavy burden of establishing that the merits of his case are so clear that expedited action is justified." Taxpayers Watchdog, Inc., v. Stanley , 819 F.2d 294, 297 (D.C. Cir. 1987).

In considering a motion for summary judgment, the court must view all facts in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The moving party "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the ‘pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ...’ which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. , 477 U.S. at 323, 106 S.Ct. 2548. The nonmoving party's opposition must be supported by affidavits, declarations, or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e) ; Celotex Corp. , 477 U.S. at 324, 106 S.Ct. 2548.

B. FOIA

"FOIA provides a ‘statutory right of public access to documents and records’ held by federal government agencies.’ " Citizens for Responsibility & Ethics in Washington v. U.S. Dep't of Justice , 602 F. Supp. 2d 121, 123 (D.D.C. 2009) (quoting Pratt v. Webster , 673 F.2d 408, 413 (D.C. Cir. 1982) ). Federal agencies must comply with FOIA requests to make their records available to the public unless the requested "information is exempted under [one of nine] clearly delineated statutory [exemptions]." Id. (internal quotation marks omitted); see also 5 U.S.C. §§ 552(a) – (b).

Agencies have "an obligation under FOIA to conduct an adequate search for responsive records," Edelman v. S.E.C. , 172 F. Supp. 3d 133, 144 (D.D.C. 2016), and "[a]n inadequate search for records constitutes an improper withholding" under the statute. Schoenman v. F.B.I. , 764 F. Supp. 2d 40, 45 (D.D.C. 2011). When a FOIA requester challenges an agency's response, the agency "must show beyond material doubt ... that it has conducted a search reasonably calculated to uncover all relevant documents." Weisberg v. U.S. Dep't of Justice , 705 F.2d 1344, 1351 (D.C. Cir. 1983). The court employs a reasonableness test to determine whether an agency's search for responsive materials is adequate. Rodriguez v. Dep't of Defense , 236 F. Supp. 3d 26, 34 (D.D.C. 2017) (citing Campbell v. U.S. Dep't of Justice , 164 F.3d 20, 27 (D.C. Cir. 1998) ). "[T]he adequacy of a FOIA search is generally determined not by the fruits of the search, but by the appropriateness of the methods used to carry out the search." Iturralde v. Comptroller of the Currency , 315 F.3d 311, 315 (D.C. Cir. 2003). However, "evidence that relevant records have not been released may shed light on whether the agency's search was indeed inadequate." Weisberg , 705 F.2d at 1351.

"An agency may establish the adequacy of its search by submitting reasonably detailed, nonconclusory affidavits [or declarations] describing its efforts." Baker & Hostetler LLP v. U.S. Dep't of Commerce , 473 F.3d 312, 318 (D.C. Cir. 2006) (alteration in original). The court must accord agency affidavits "a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents." Safecard Servs., Inc. v. S.E.C. , 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks and citation omitted). However, "it is well-established that a conclusory affidavit that gives ‘no detail as to the scope of the examination ... is insufficient as a matter of law’ in demonstrating the adequacy of the search." Am.-Arab Anti-Discrimination Comm. v. U.S. Dep't of Homeland Sec. , 516 F. Supp. 2d 83, 87 (D.D.C. 2007) (quoting Weisberg v. U.S. DOJ , 627 F.2d 365, 370 (D.C. Cir. 1980) ).

The district court conducts a de novo review of the government's decision to withhold requested documents under any of FOIA's specific statutory exemptions. See 5 U.S.C. § 552(a)(4)(B). The agency bears the burden of showing that the responsive material withheld falls within a stated exemption, see Petroleum Info. Corp. v. U.S. Dep't of the Interior , 976 F.2d 1429, 1433 (D.C. Cir. 1992) (citing 5 U.S.C. § 552(a)(4)(B) ), and its "justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’ " Ayuda, Inc. v. FTC , 70 F. Supp. 3d 247, 261 (D.D.C. 2014) (quoting Wolf v. CIA , 473 F.3d 370, 374–75 (D.C. Cir. 2007) ). Summary judgment for the agency is only appropriate when it proves that it has fully discharged its FOIA obligations. Moore v. Aspin , 916 F. Supp. 32, 35 (D.D.C. 1996).

III. ANALYSIS

While "a motion for summary judgment cannot be ‘conceded’ for want of opposition," Winston & Strawn, LLP v. McLean , 843 F.3d 503, 505 (D.C. Cir. 2016), "[t]his does not mean ... that the Court must assess the legal sufficiency of each and every [claim] invoked by the government in a FOIA case." Shapiro v. United States Dep't of Justice , 239 F. Supp. 3d 100, 106 n.1 (D.D.C. 2017). In Shapiro , the court held:

Where the FOIA requester responds to the government's motion for summary judgment without taking issue with the government's decision to withhold or to redact documents, the Court can reasonably infer that the FOIA requester does not seek those specific records or information and that, as to those records or information, there is no case or controversy sufficient to sustain the Court's jurisdiction.

Id. ; see Lujan v. Defenders of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Accordingly, the court will address only the arguments PETA proffered in response to HHS's motion for summary judgment.

A. Vaughn...