Washington Post Co. v. U.S. Dept. of Health and Human Services, No. 88-5094
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
| Writing for the Court | Before WALD, Chief Judge, and EDWARDS and D.H. GINSBURG; WALD |
| Citation | 865 F.2d 320 |
| Parties | WASHINGTON POST COMPANY, Appellant, v. U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Appellees. |
| Docket Number | No. 88-5094 |
| Decision Date | 06 January 1989 |
Page 320
v.
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Appellees.
District of Columbia Circuit.
Decided Jan. 6, 1989.
Page 321
Appeal from the United States District Court for the District of Columbia (Civil Action No. 80-01681).
Paul Mogin, with whom Kevin T. Baine and Boisfeuillet Jones, Jr., Washington, D.C., were on the brief, for appellant.
Mark E. Nagle, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellees.
Before WALD, Chief Judge, and EDWARDS and D.H. GINSBURG, Circuit Judges.
Opinion for the Court filed by Chief Judge WALD.
WALD, Chief Judge:
For nine years, The Washington Post Company ("the Post") has been seeking access under the Freedom of Information Act ("FOIA"), 5 U.S.C. Sec. 552, to certain financial disclosure forms filed by scientists who work as consultants for the National Cancer Institute ("NCI"). In the most recent chapter, the Post appeals the district court's grant of summary judgment to the Department of Health and Human Services ("HHS" or "the Department") pursuant to FOIA exemption 4, which authorizes the government to withhold financial information obtained from third parties that is "confidential." The Post claims that a genuine issue of material fact exists as to the effect of disclosure on impairment of the government's ability to obtain the information it needs from its scientist-consultants. We agree that such a dispute exists and that summary judgment was therefore inappropriate.
I. BACKGROUND
The NCI is a division of the National Institutes of Health ("NIH"), see 42 U.S.C. Sec. 281, which is itself a part of HHS. The
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NCI is responsible for overseeing the disbursement of hundreds of millions of dollars each year to support cancer research. Aiding the NCI in its duties are hundreds of part-time "consultants," prominent scientists who volunteer to serve on NCI advisory "peer review" committees to evaluate various grant and contract proposals.An invitation to serve as a consultant is contingent upon the scientist's completion of Form HHS-474 (formerly HEW-474), entitled "Confidential Statement of Employment and Financial Interests." First required by Executive Order No. 11,222, 1 the form is designed to elicit appointees' potential conflicts of interest. Appointees are asked, inter alia, to "[l]ist all organizations in which you, your spouse, minor child, partner, or an organization with which you are connected have financial interests which relate directly or indirectly to your consultant duties."
The Post first submitted a FOIA request for the Forms HHS-474 completed by NCI consultants on February 14, 1980. Despite the auspicious overtones of the date, however, this was destined to be no sweetheart deal. Initially spurned by HHS, the Post filed suit in the district court seeking to compel disclosure of the forms.
In its first pass on this case, the district court found that FOIA exemption 4, see 5 U.S.C. Sec. 552(b)(4) (covering commercial or financial materials that are "obtained from a person" and are "privileged or confidential"), did not exempt Form HHS-474 from disclosure, because the forms did not contain "financial" information. The court further held, however, that the forms were shielded by exemption 6, see 5 U.S.C. Sec. 552(b)(6) (permitting withholding of "personnel and medical files and similar files" whose disclosure would be "a clearly unwarranted invasion of personal privacy").
On appeal, the case was reversed and remanded to the district court. See Washington Post Co. v. HHS, 690 F.2d 252 (D.C.Cir.1982) (Post v. HHS I ). We held that the consultants' exemption 6 privacy interests were minimal in comparison to the public's "singularly strong interest in disclosure of consultants' conflicts of interest." Id. at 264. We went on to conclude, however, that Form HHS-474 did contain "financial" information as that term is used in exemption 4. Id. at 266. We also noted that HHS had not contended that the form should be withheld as "privileged," but that it was still an open question whether the information should be deemed "confidential." In particular, we cited "the possibility that part-time consultants may construe Form 474's disclosure requirement narrowly and thus may not disclose all possible conflicts of interest." Id. at 269. Were this a likely result, exemption 4 might come into play on the ground that disclosure would "impair the Government's ability to obtain necessary information in the future." National Parks & Conservation Ass'n v. Morton, 498 F.2d 765, 770 (D.C.Cir.1974) (footnote omitted) (National Parks I ). 2 However, the only evidence before the court on the first appeal was a single conclusory affidavit from Robert Eaglesome, Director of Personnel Policy for HHS, in which he stated his "professional opinion" that disclosure "would impair the Department's ability to obtain candid and accurate information in the future." 690 F.2d at 257. We therefore remanded the case to the district court "to give the government an opportunity to provide the detailed factual justification for withholding" that this court had earlier required in an exemption 4 inquiry. Post v. HHS I, 690 F.2d at 269 (citing Pacific Architects & Engineers, Inc. v. Renegotiation Board, 505 F.2d 383, 385 (D.C.Cir.1974)).
On the second round before the district court, the government pursued an argument that it had not previously raised before that court or in the first appeal: i.e., that because the Forms HHS-474 had been
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held privileged in the context of civil discovery, they could also be withheld under the "privileged" arm of exemption 4. The district court agreed, relying on United States v. Weber Aircraft Corp., 465 U.S. 792, 104 S.Ct. 1488, 79 L.Ed.2d 814 (1984), and again granted the government's motion for summary judgment. See Washington Post Co. v. HHS, 603 F.Supp. 235 (D.D.C.1985). On appeal, this court again reversed, finding unjustified "HHS's tardy assertion of its exemption 4 'privilege' defense." Washington Post Co. v. HHS, 795 F.2d 205, 208 (D.C.Cir.1986) (Post v. HHS II ). We again remanded the case, this time "with instructions to determine whether the Forms 474 contain information that is 'confidential' under exemption 4." Id. at 209.That detour over, we come at last to the decision now under review. Confronting the case on a second rebound, the district court agreed at the outset that "[t]he only issue left for discussion ... is whether disclosure is likely to impair the government's ability to obtain similar information in the future." Washington Post Co. v. HHS, Civ. No. 80-01681, mem. op. ("Mem. Op.") at 3 (D.D.C. Nov. 20, 1987) (Joint Appendix ("J.A.") at 59). The court explained (as we had observed in Post v. HHS I ) that conceivably
because Form 474 leaves room for interpretation of which financial interests "relate directly or indirectly to [the individual's] consultancy duties," part-time consultants might construe that instruction narrowly and thus fail to disclose all possible conflicts of interest. Should such selective reporting occur, the government's access to full and accurate information would be impaired.
Mem. Op. at 4 (J.A. at 60). The record before the district court contained affidavits from various officials at NCI, NIH, and HHS, see J.A. at 73-76, 79-149, expressing concern that this consequence might follow disclosure of the forms. 3 Noting that such a result was inevitably "speculative," the court nevertheless concluded that "the arguments advanced by the government are sufficient to support a finding of potential impairment." Mem. Op. at 6 (J.A. at 62).
Despite its observation that the impairment issue was the only question left in the case, the district court proceeded to entertain the government's separate contention that qualified individuals might forego participation in the peer review process altogether if their listing of financial interests were made publicly available. The government offered as proof of this recruitment aspect the results of an informal survey it had conducted suggesting that of the 49 NCI consultants (out of a total of 467) who had reported at least one financial interest on the relevant portion of Form HHS-474, five would decline to participate in the future if the forms were publicly disclosed, and an additional five had a "clear objection to disclosure," but would still accept future service. J.A. at 144-49 (Affidavit of William A. Walter, Deputy Director, NCI). The district court correctly recognized that this information was irrelevant to the question of "impairment"--that is, to whether those scientists who do become involved with NCI committees will narrowly construe the financial disclosure requests. However, citing language from Post v. HHS I, 4 the district court proceeded to reinject the potential risk of nonparticipation into the inquiry by considering it in the "balancing procedure" that it thought to be proper under the exemption 4 "confidentiality" analysis. Mem. Op. at 8 (J.A. at 64). 5
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On the basis of this reasoning, the district court settled what it termed the "close question" whether the information at issue qualifies under FOIA exemption 4 as confidential by deciding, again on a motion for summary judgment, that it does so qualify. The court expressly found "that the extent of the government's impairment and the importance of the information outweigh the public interest in disclosure." Mem. Op. at 10-11 (J.A. at 66-67). The court subsequently denied the Post's motion for reconsideration, further explaining its decision to grant the government's motion for summary judgment:
Resolution of this dispute involves an analysis of the potential, hypothetical impairment the government...
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