White Coat Waste Project v. U.S. Dep't of Veterans Affairs

• Citation: 404 F.Supp.3d 87
• Decision Date: 29 August 2019
• Docket Number: No. 17-cv-2264 (EGS),17-cv-2264 (EGS)
• Parties: WHITE COAT WASTE PROJECT, Plaintiff, v. UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, Defendant.
• Court: U.S. District Court — District of Columbia

404 F.Supp.3d 87

WHITE COAT WASTE PROJECT, Plaintiff,

v.UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, Defendant.

No. 17-cv-2264 (EGS)

United States District Court, District of Columbia.

Signed August 29, 2019

Matthew Strugar, Law Office of Matthew Strugar, Los Angeles, CA, for Plaintiff.

Kenneth A. Adebonojo, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

Emmet G. Sullivan, United States District Judge

I. Introduction

Plaintiff White Coat Waste Project ("WCW"), a non-profit organization that monitors federally-funded animal experiments, brings this Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, against the United States Department of Veterans Affairs ("VA"), seeking to obtain certain records about canine experiments at the Louis Stokes Cleveland Veterans Affairs Medical Center ("Stokes VAMC") in Ohio. The dog experiments have prompted speculation and resulted in protests. Stokes VAMC eventually released responsive documents, invoking certain FOIA exemptions based on the nature of the animal research and the privacy interests of its principal investigators and other research personnel. Following Stokes VAMC's productions, WCW's administrative appeals of certain withholdings, and the filing of this action, the remaining dispute is quite narrow. WCW solely seeks the name of the principal investigator on a research protocol for dog experiments at Stokes VAMC.

Pending before the Court are the parties' cross-motions for summary judgment. Upon careful consideration of the parties' submissions, the applicable law, and the entire record herein, the Court concludes that FOIA Exemption 5's deliberative process privilege does not justify withholding the principal investigator's name, and that the Court finds that the VA has failed to provide it with sufficient information to determine whether the principal investigator's name was properly withheld under Exemption 6. Therefore, the Court GRANTS IN PART and DENIES IN PART Defendant's Motion for Summary Judgment and GRANTS IN PART, DENIES IN PART , and HOLDS IN ABEYANCE Plaintiff's Cross-Motion for Summary Judgment. The Court DENIES WITHOUT PREJUDICE WCW's requests for in camera review and the production of the animal research protocol, and DEFERS ruling on the issue of whether the agency has "officially acknowledged" the principal investigator's name.

II. Background

WCW is a non-profit organization with a mission "to expose and end wasteful taxpayer-funded animal experiments." Def.'s Statement of Material Facts ("Def.'s SOMF"), ECF No. 20-1 at 1 ¶ 1 (quoting Compl., ECF No. 1 at 2 ¶ 4); see also Pl.'s Counter-Statement of Material Facts ("Pl.'s SOMF"), ECF No. 21-2 at 1 ¶ 1 (same).¹ As part of its investigation into the VA's dog experiments, WCW submitted a FOIA request to Stokes VAMC on April 3, 2017, seeking the following records:

(1) A current census of all dogs actively held and used in the Stokes VAMC laboratories (including each animal's ID number, breed, name, color and distinctive markings, date of birth, source, USDA pain category, and assigned protocol); (2) Photographs and videos of these or other dogs used in Stokes VAMC labs (from January 1, 2010 to the present); (3) Active [Institutional Animal Care and Use Committee]-approved protocols to which these dogs are assigned; and (4) Animal welfare incident reports association with the aforementioned projects (from January 1, 2010 to the present).²

Compl., ECF No. 1 at 2 ¶ 8; see also Def.'s SOMF, ECF No. 20-1 at 1-2 ¶ 2. Acknowledging receipt of WCW's request on April 5, 2017, Stokes VAMC responded to WCW on April 17, 2017, claiming that it did not have responsive records. Decl. of Tomica Jefferson ("Jefferson Decl."), ECF No. 20-3 at 3 ¶ 7, 4 ¶ 8.

On April 26, 2017, WCW administratively appealed that response. Id. at 4 ¶ 9. Stokes VAMC then conducted a "comprehensive search," Def.'s SOMF, ECF No. 20-1 at 2 ¶ 4, locating responsive records in a filing cabinet in a research area, id. at 2 ¶ 7. Stokes VAMC found sixty-seven responsive documents. Id. at 2 ¶ 4. Stokes VAMC produced fourteen pages in part and withheld fifty-two pages in full. Id. The VA withheld the census records under FOIA Exemptions 4, 5, and 6,³ id. at 2 ¶ 5, and the IACUC-approved protocols under Exemption 5, id. at 2 ¶ 6. According to Stokes VAMC, there were no responsive photographs, videos, and animal welfare reports. Id. WCW did not challenge those categories of documents. Jefferson Decl., ECF No. 20-3 at 7 ¶ 22.

On September 13, 2017, WCW filed a second administrative appeal, challenging the withholdings in the census records and the IACUC-approved protocols. Id. at 5 ¶¶ 18-19. Stokes VAMC stood by all of its initial conclusions, with the exception of a research protocol and certain census information. Id. at 5 ¶ 19. Stokes VAMC "continue[d] to withhold the principal investigators' names as well as other research personnel within the protocol and location of building rooms, pursuant to FOIA Exemptions (b)(5) and (b)(6)." Id. at 5 ¶ 19(b). Stokes VAMC explained that "[p]rincipal investigators as well as other research personnel have a privacy interest in being protected from annoyance and harassment" pursuant to Exemption 6, id. at 6 ¶ 20(a), and the census records and protocol "discuss unadopted opinions of the Principal Investigator and research personnel" pursuant to Exemption 5, id. at 7 ¶ 21(a).

On May 1, 2017, WCW submitted a second FOIA request to Stokes VAMC, seeking to obtain the following records:

(1) Invoices for all dogs purchased or otherwise procured by Stokes VAMC (from January 1, 2016-present); (2) Acquisition and disposition records for all dogs purchased or otherwise procured by Stokes VAMC (from January 1, 2016-present); (3) Complete animal use and veterinary records for all dogs used in Stokes VAMC experiments (from January 1, 2016-present); (4) Active IACUC-approved Stokes VAMC protocol/s for the use of dogs; (5) Animal welfare incident reports associated with the use of dogs at Stokes VAMC (from January 1, 2014-present); (6) All emails and other records associated with the adoption of any dogs from Stokes VAMC (January 1, 2016-present); (7) Inactive IACUC-approved protocol/s for the use of dogs (from January 1, 2015-present); and (8) Photographs and videos of dogs used in Stokes VAMC labs (from January 1, 2010-present).

Compl., ECF No. 1 at 4-5 ¶ 21. On August 3, 2017, Stokes VAMC released 169 pages of responsive documents, withholding in part certain information under Exemptions 4, 5, and 6. Jefferson Decl., ECF No. 20-3 at 8 ¶ 27; see also Def.'s SOMF, ECF No. 20-1 at 3 ¶ 9. Stokes VAMC redacted names under Exemption 6, withheld the protocols under Exemption 5, and withheld other information (i.e. "company names, addresses, invoice numbers and the like") under Exemption 4. Def.'s SOMF, ECF No. 20-1 at 3 ¶ 10. On September 20, 2017, after litigation had already begun, the VA's Office of General Counsel received WCW's administrative appeal regarding the August 3, 2017 production. Jefferson Decl., ECF No. 20-3 at 9 ¶ 31. After the VA's Office of General Counsel issued a remand to Stokes VAMC to process WCW's appeal, Stokes VAMC eventually released 217 pages of responsive documents on March 9, 2018. Id. at 9 ¶¶ 32, 34. Stokes VAMC partially withheld the majority of those records under Exemptions 5 and 6, including the names of principal investigators, and redacted some "invoice" information under Exemptions 4, 5, and 6. Def.'s SOMF, ECF No. 20-1 at 3 ¶ 12.

Stokes VAMC also turned over a redacted version of an animal research protocol, entitled "High Frequency Spinal Cord Stimulation

to Restore Cough." Pl.'s SOMF, ECF No. 21-2 at 8 ¶ 49; see also Pl.'s Mem., ECF No. 21-1 at 17 (asserting that "Stokes VAMC's experimenters cut the spinal cord[s] of mongrel dogs to paralyze them and then attempt to restore a cough in the paralyzed dogs."). The protocol is a forty-eight-page document, subject to redactions pursuant to Exemptions 5 and 6. Def.'s Ex. A, Jefferson Decl., ECF No. 20-3 at 18 (showing an excerpt of the Vaugh index).⁴ That redacted document—the protocol at issue—excludes the name of the principal investigator. See Pl.'s SOMF, ECF No. 21-2 at 8 ¶¶ 49-50. Over the course of this litigation, the parties have narrowed the scope of the dispute to the protocol at issue. See Decl. of Matthew Strugar ("Strugar Decl."), ECF No. 21-4 at 2 ¶ 10. WCW solely challenges the redactions of the principal investigator's name in the protocol in order to hold that person and the VA accountable. Id. at 8 ¶ 50; see also Pl.'s Mem., ECF No. 21-1 at 35.

Both parties moved for summary judgment. See, e.g. , Def.'s Mot. for Summ. J. ("Def.'s Mot."), ECF No. 20; Def.'s Mem. of P. & A. in Supp. of Def.'s Mot. ("Def.'s Mem."), ECF No. 20-2 at 1-19; Pl.'s Cross-Mot. for Summ. J. ("Pl.'s Mot."), ECF No. 21 at 1-3.⁵ The VA argues that it is entitled to summary judgment for the following five reasons: (1) it conducted adequate searches for the responsive records; (2) it properly withheld certain financial, tax and other information of vendors under Exemption 4; (3) it appropriately withheld census and protocol records under Exemption 5 because those "records are a deliberative prelude to a report that the VA typically makes publicly available[;]" (4) it properly invoked Exemption 6 to protect the privacy interests of its employees and shield them from harassment "[g]iven the nature of animal research work and antipathy towards [that research][;]" and (5) it released all reasonably segregable, non-exempt information, withholding exempt information under Exemptions 4, 5, and 6. Def.'s Mem., ECF No. 20-2 at 1-2. In moving for summary judgment, WCW argues that the VA has failed to demonstrate that the name of the principal investigator on the animal research protocol is exempt from disclosure. Pl.'s Mot., ECF No. 21 at 1. WCW contends that the VA waived all claimed exemptions to the principal...