Seife v. Nat'l Inst. of Health

• Decision Date: 12 June 2012
• Docket Number: No. 11 Civ. 6646(GWG).,11 Civ. 6646(GWG).
• Citation: 874 F.Supp.2d 248
• Parties: Charles SEIFE, Plaintiff, v. NATIONAL INSTITUTES OF HEALTH, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

874 F.Supp.2d 248

Charles SEIFE, Plaintiff,

v.NATIONAL INSTITUTES OF HEALTH, et al., Defendants.

No. 11 Civ. 6646(GWG).

United States District Court,

S.D. New York.

June 12, 2012.

Charles Seife, New York, NY, pro se.

Alicia Marie Simmons, U.S. Attorney's Office, Southern District of New York, New York, NY, for defendants National Institutes of Health, et al.

OPINION AND ORDER

GABRIEL W. GORENSTEIN, United States Magistrate Judge.

Pro se plaintiff Charles Seife has sued under the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”), to obtain records relating to certain individuals who serve on advisory panels of the defendant National Institutes of Health (“NIH”). These individuals are considered “special governmental employees” (“SGEs”) of NIH. The parties have each moved for summary judgment ¹ and have consented to disposition of the case by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons stated below, Seife's motion is granted in part and denied in part, and the defendants' motion is granted in part and denied in part.

I. BACKGROUNDA. Seife's Request for Documents

On February 24, 2011, Seife requested documents from NIH pursuant to FOIA. Seife 56.1 Statement ¶ 1; Gov. 56.1 Statement ¶ 1. Among other documents, Seife requested copies of the documents contained in the ethics files of 44 NIH SGEs that “relate[ ] to managing real and/or apparent conflicts of interest.” Cornell Decl. ¶ 4; Letter from Charles Seife to FOIA Officer, dated Feb. 24, 2011 (annexed as Ex. 1 to Complaint, filed Sept. 22, 2011 (Docket # 1)).

NIH ultimately produced records relating to SGEs who served on NIH advisory committees. See Vaughn Index (annexed as Ex. G to Cornell Decl.); Cornell Decl. ¶¶ 10, 11, 19, 20, 22, 28, 30. NIH advisory committees “furnish [ ] expert advice, ideas, and diverse opinions to [NIH].” 5 U.S.C. App'x 2 § 2(a). The SGEs at issue in this case served on three types of advisory committees: (1) Boards of Scientific Counselors, which “review and evaluate the research programs and investigators in NIH's internal research laboratories;” (2) Program Advisory Committees, which “provide advice on specific research programs and future research needs and opportunities .... [and] identify and evaluate initiatives within NIH to support or fund research projects conducted by researchers and organizations outside of NIH;” and (3) National Advisory Councils and Boards, which “perform the second level of peer review for research grant applications[,] ... provide oversight on research programs executed [at NIH], and offer advice and recommendations on policy and program development, program implementation, evaluation and other matters of significance.” See Tabak Decl. ¶ 5. NIH advisory committees do not have the authority to make final decisions on behalf of NIH. See id. ¶¶ 4, 6.

The documents at issue in this lawsuit consist of documents the parties call “recusal lists” and “waiver determinations.” We next discuss each type of document.

B. Recusal Lists

Section 107(a) of the Ethics in Government Act (“EGA”), 5 U.S.C. App'x 4, allows NIH to require its SGEs to complete a “confidential financial disclosure report[ ],” and NIH in fact requires such reports. See Tabak Decl. ¶ 12. An SGE makes the report on a United States Office of Government Ethics (“OGE”) Form 450 and must provide an update prior to each advisory committee meeting. Id. The OGE Form 450 contains “a listing of information about all reported financial interests as well as business and personal interests that could potentially create a conflict of interest.” Id. ¶ 11. Before each advisory committee meeting, an NIH committee staff member uses the Form 450 submitted by each SGE to generate lists of the financial interests and relationships of the SGEs that could potentially pose a conflict of interest with their work on the advisory committee. Id. ¶ 13. These documents are the “recusal lists.” After a recusal list is generated, the staff member gives it to the Deputy Ethics Counselor of the particular institute at NIH that oversees the advisory committee on which the SGE serves. Id. The recusal lists are ultimately given to the members of the advisory committee so that they are aware of the SGEs' potential conflicts of interest and can avoid such conflicts. Id.

C. Waiver Determinations

Notwithstanding a potential conflict of interest, 18 U.S.C. § 208(b)(3) allows an SGE to serve on an agency advisory committee if the agency, after reviewing the SGE's financial disclosure report, “certifies in writing that the need for the individual's services outweighs the potential for a conflict of interest created by the financial interest involved.” At NIH, committee management staff uses the Form 450 to determine whether an employee should be allowed to participate in matters of “general applicability” despite any conflict reflected in the Form 450. Tabak Decl. ¶ 15. For NIH, matters of “general applicability” are those matters that affect a group or class of entities similarly but do not uniquely affect any single entity that might be listed. Id. In other words, a waiver determination does not allow the employee to work on a matter regarding interests specific to an entity on the Form 450. Id. In instances where the staff member finds that a waiver is appropriate, a waiver determination form is prepared, which includes a listing of the employee's financial interests as found in the Form 450. See id. ¶ 16. The Deputy Ethics Counselor of the particular NIH Institute involved reviews and signs the waiver determination. Id. ¶ 17.

D. Materials Released by NIH

NIH responded to Seife's request by eventually providing partially redacted recusal lists and waiver determinations. See Cornell Decl. ¶¶ 2225. NIH redacted all information from the recusal lists and waiver determinations that had been obtained from the OGE Form 450. See id. The redactions included all information relating to the employees' financial interests and personal or business relationships (which we sometimes refer to together as “financial information”) that NIH had obtainedfrom the OGE Form 450. Id. ¶¶ 23–24. The material redacted from the recusal lists and waiver determinations included the names of entities with which each employee had a financial interest, the nature of each interest, and, in some cases, labels (consisting of a single letter) indicating whether a financial interest belonged in whole or in part to a spouse or dependent child of the employee. See id. NIH also redacted from the recusal lists and waiver determinations any information identifying the employee's personal or business relationships—that is any relationships with any person or business for which the employee had, within the preceding year, served as an officer, director, trustee, general partner, agent, attorney, consultant, contractor, or employee. Id.

II. LAW GOVERNING FOIA ACTIONS

As we noted in Garcia v. United States Department of Justice, 181 F.Supp.2d 356 (S.D.N.Y.2002), FOIA's general purpose is to “ensure an informed citizenry which is needed to check against corruption and hold the governors accountable to the governed,” id. at 369 (quoting NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978)) (brackets and ellipsis omitted); accord Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 171, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004) (explaining that the purpose of FOIA is to allow the general public to learn “what their Government is up to”) (citation omitted); Associated Press v. U.S. Dep't of Defense, 554 F.3d 274, 283 (2d Cir.2009) (“[FOIA] was designed to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.”) (citation and internal quotation marks omitted). FOIA favors broad disclosure and “any member of the public is entitled to have access to any record maintained by a federal agency, unless that record is exempt from disclosure under one of the Act's nine exemptions.” A. Michael's Piano, Inc. v. FTC, 18 F.3d 138, 143 (2d Cir.), cert. denied,513 U.S. 1015, 115 S.Ct. 574, 130 L.Ed.2d 490 (1994); accord Bloomberg, L.P. v. Bd. of Governors of the Fed. Reserve Sys., 601 F.3d 143, 147 (2d Cir.2010), cert. denied,––– U.S. ––––, 131 S.Ct. 1674, 179 L.Ed.2d 644 (2011); Associated Press, 554 F.3d at 283. Federal courts are required to conduct a de novo review of an agency's decision to withhold records requested under FOIA, Bloomberg, 601 F.3d at 147;Associated Press, 554 F.3d at 283, and all statutory exemptions must be construed narrowly, Bloomberg, 601 F.3d at 147;Associated Press, 554 F.3d at 283. Agency information falling within the terms of a FOIA exemption, however, need not be disclosed. See, e.g., Associated Press, 554 F.3d at 283–84;Halpern v. FBI, 181 F.3d 279, 287 (2d Cir.1999).

To prevail on a motion for summary judgment in a FOIA action, the government has “the burden of showing that ... any withheld documents fall within an exemption to the FOIA.” Carney v. U.S. Dep't of Justice, 19 F.3d 807, 812 (2d Cir.), cert. denied,513 U.S. 823, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994); accord U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989); Bloomberg, 601 F.3d at 147;Associated Press, 554 F.3d at 283. Summary judgment may be granted on the basis of affidavits or declarations “supplying facts ... giving reasonably detailed explanations why any withheld documents fall within an exemption.” Carney, 19 F.3d at 812;accord Associated Press v. U.S. Dep't of Justice, 549 F.3d 62, 65 (2d Cir.2008).

III. DISCUSSION

At issue is NIH's withholding of two categories of information from the recusal lists and the waiver determinations: (1) information relating to the financial interests and business and personal relationships of the SGE, and (2) letter labels indicating whether a financial interest belonged in whole or in part to an SGE's...