Washington Post Co. v. U.S. Dept. of Health and Human Services, 80-2572

Decision Date24 September 1982
Docket NumberNo. 80-2572,80-2572
Citation690 F.2d 252,223 U.S.App.D.C. 139
PartiesThe WASHINGTON POST COMPANY, Appellant, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al.
CourtU.S. Court of Appeals — District of Columbia Circuit

Boisfeuillet Jones, Jr., with whom Carol D. Weisman, Washington, D. C., was on the brief, for appellant.

John C. Martin, Asst. U. S. Atty., with whom Charles F. C. Ruff, U. S. Atty. at the time the brief was filed, and Royce C. Lamberth, Kenneth M. Raisler, and Michael J. Ryan, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellees.

Before ROBINSON, Chief Judge, TAMM and WALD, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

Dissenting opinion filed by Circuit Judge TAMM.

WALD, Circuit Judge:

This appeal involves a request under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, by the Washington Post Company ("Post") for information concerning possible conflicts of interest of scientific consultants employed by the National Cancer Institute (NCI). The Post seeks to compel disclosure, for each consultant, of (1) a list of his non-federal employment and (2) a list of organizations in which the consultant has financial interests related to his consulting duties. The government claims that the information is exempt from disclosure under Exemptions 4 and 6 to FOIA, 5 U.S.C. § 552(b)(4), (6). The district court, on cross-motions for summary judgment, held that the information was not "commercial or financial information" within the meaning of Exemption 4, but that the information could be withheld under Exemption 6 because disclosure would constitute a "clearly unwarranted invasion of personal privacy."

The district court relied heavily on the reasoning of Association for Women in Science v. Califano, 566 F.2d 339 (D.C.Cir.1977) (Women in Science ), where we held that essentially identical information was privileged from discovery under the Federal Rules of Civil Procedure. We conclude, however, that its reliance on Women in Science was inappropriate because discovery of information under the Federal Rules and disclosure under FOIA Exemption 6 are independent questions involving different issues. We then perform the balancing of disclosure interests against privacy interests mandated by Exemption 6, and find that the conflict-of-interest information involved in this case is not exempt from disclosure. Finally, we hold that the requested list of consultants' financial interests is "financial" information within the meaning of Exemption 4 and remand for a factual determination of whether release of this information is likely to impair the government's ability to obtain similar information in the future.

I. Background

NCI is a division of the National Institutes of Health (NIH), which is in turn administered by appellee Department of Health and Human Services (HHS). 1 It annually disburses approximately $1 billion in grants and contracts for cancer research. In deciding which grant proposals to fund, NCI depends on the advice of scientific consultants who serve on various advisory boards and committees. These consultants are respected scientists, familiar with cancer research, who exercise "peer review" over grant applications. 2

Pursuant to Executive Order No. 11,222, 3 HHS, in order to monitor conflicts of interest that could affect consultants' judgment of the merits of grant proposals, requires them to complete Form HEW-474. That form, titled "Confidential Statement of Employment and Financial Interests," requires each consultant to list all other federal and non-federal employment and "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 consultancy duties." 4 HHS then reviews this statement to determine whether a conflict exists. 5 Consultants are told that the information on Form 474 will be used to determine whether their consulting duties will involve a conflict of interest, and are given a limited pledge of confidentiality-the information "will not be disclosed except as the Chairman of the Civil Service Commission or the head of the principal operating component or designee may determine for good cause shown." 6

On February 14, 1980, the Post requested copies of the statements of employment and financial interests filed by members (except ex officio members) of NCI's advisory boards and committees. HHS refused the request, relying on FOIA Exemption 6, 5 U.S.C. § 552(b)(6), which exempts from disclosure:

personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

The Post appealed the decision to the Assistant Secretary of HHS for Public Health and Surgeon General, who affirmed the refusal to disclose. Having exhausted its administrative remedies, the Post filed suit to compel disclosure on July 8, 1980.

After a status call, the district court ordered the parties to file cross-motions for summary judgment. The government, in its motion for summary judgment, again relied on Exemption 6 and added a claim that the requested data was confidential financial information within the meaning of Exemption 4, 5 U.S.C. § 552(b)(4), which permits withholding of:

trade secrets and commercial or financial information obtained from a person and privileged or confidential. 7 In support of its motion, the government, which has the burden of justifying nondisclosure, see 5 U.S.C. § 552(a)(4)(B), submitted no evidence except an affidavit by Robert Eaglesome, Director of Personnel Policy for HHS. That affidavit states Mr. Eaglesome's "professional opinion" that disclosure "would impair the Department's ability to obtain candid and accurate information in the future" and might deter "significant numbers of persons" from applying for advisory board or committee positions. 8

The Post argued with respect to Exemption 6 that the public interest in disclosure of conflicts of interest outweighs the consultants' privacy interests. 9 With respect to Exemption 4, it argued that a mere list of organizations in which one has financial interests, without dollar amounts, is not "financial" information within the meaning of Exemption 4, and that in any event the government had not made a factual showing that disclosure would impair its ability to obtain this information in the future. 10

The government agreed before decision to release the names of NCI consultants, their federal employment, the results of HHS's review of Form 474, and the name of the reviewing official. 11 Thus, the remaining disputed information was the consultants' non-federal employment and their list of financial interests related to their consulting duties.

The district court held that Exemption 4 did not apply because it was not designed to protect "personal financial information as distinguished from economic data relating to corporations or other business entities." 12 With regard to Exemption 6, the district court felt bound by the reasoning of Women in Science, where we held that information contained on Form 474 was privileged from discovery under Rule 26(b)(1) of the Federal Rules of Civil Procedure. In Women in Science, for purposes of the confidential report privilege, we balanced the litigants' need for information against the government's need to foster gathering of the information and found the government's need to be greater. 13 The district court recognized that under FOIA Exemption 6, a court must instead balance the public interest in disclosure against the privacy interests of individuals. However, it believed that the general public interest in disclosure was weaker than the specific need of the plaintiffs in Women in Science, 14 and that the consultants' personal privacy interests were "identical for purposes of practical analysis" to the government's interest in gathering information. 15 Therefore, the district court found the balance struck in Women in Science to be controlling for Exemption 6 purposes, and held that Form 474 was exempt from disclosure.

In this appeal, the Post argues that Women in Science is not controlling and that the balancing of interests required by Exemption 6 mandates disclosure. The government contests that proposition and also argues that the disputed information is both "financial" and "confidential," and hence is covered by Exemption 4.

II. Exemption 6
A. The Limited Relevance of Discovery Rules for Exemption 6

It is well established that information that is exempt from disclosure to the general public under FOIA may nevertheless be subject to discovery. 16 This case involves the converse question: whether information that is privileged against discovery can nonetheless be obtained under FOIA.

As an initial matter, neither the text nor the legislative history of FOIA suggests that the existence of a discovery privilege should control the determination of whether withholding is warranted under Exemption 6. Exemption 6 does not refer explicitly to evidentiary privileges. In contrast, Exemption 4 exempts "commercial or financial information obtained from a party and privileged or confidential." 5 U.S.C. § 552(b)(4) (emphasis added). Similarly, Exemption 5 permits withholding of "inter-agency or intra-agency memorandums or letters which would not be available by law to a party ... in litigation with the agency." 5 U.S.C. § 552(b)(5). That Congress expressly included evidentiary privileges in Exemptions 4 and 5 but not in Exemption 6 suggests that it did not intend privilege doctrine to control withholding of information under Exemption 6.

Moreover, even though Exemption 5 directly implicates discovery doctrine, the Supreme Court has stated that "discovery rules can only be applied under Exemption 5 by way of rough analogies." EPA v. Mink, 410 U.S. 73, 86, 93 S.Ct. 827, 835, 35 L.Ed.2d 119 ...

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