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

• Decision Date: 10 March 2020
• Docket Number: No. 17-cv-1155 (EGS),17-cv-1155 (EGS)
• Citation: 443 F.Supp.3d 176
• Parties: WHITE COAT WASTE PROJECT, Plaintiff, v. UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, Defendant.
• Court: U.S. District Court — District of Columbia

443 F.Supp.3d 176

WHITE COAT WASTE PROJECT, Plaintiff,

v.UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, Defendant.

No. 17-cv-1155 (EGS)

United States District Court, District of Columbia.

Signed March 10, 2020

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

Rhonda Lisa Campbell, 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

This case closely resembles White Coat Waste Project v. United States Department of Veterans Affairs ("WCW I "), 404 F. Supp. 3d 87 (D.D.C. 2019). Plaintiff White Coat Waste Project ("WCW") brought both actions under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, against the United States Department of Veterans Affairs ("VA"). The related cases concern WCW's separate FOIA requests for certain information about the publicly-funded canine experiments at the VA's facilities—namely, the names of the principal investigators on the animal research protocols. WCW I involved the experiments at Louis Stokes Cleveland Veterans Affairs Medical Center ("Stokes VAMC") in Ohio. This case involves experiments at the Hunter Holmes McGuire Veteran Affairs Medical Center ("McGuire VAMC") in Richmond, Virginia, which have captured the public's attention.

Invoking two of the same FOIA exemptions (Exemptions 5 and 6) in both actions, the VA withheld the requested information based on the nature of the research and the asserted privacy interests of the researchers. The VA claims that the names of the principal investigators must be shielded from disclosure based on the substantial privacy interests at stake in both cases, notwithstanding that the VA's own website lists the principal investigators, publications include the names of the researchers, and the VA will release the names after the completion of the animal research. Where the related actions part ways, however, is on the narrow issue in this case of whether the VA properly redacted the title of a single animal research protocol—Animal Component of Research Protocol numbered 02235 ("ACORP # 02235")—under Exemption 3.

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: (1) the VA improperly withheld the principal investigators' names under Exemptions 5 and 6; and (2) the VA properly withheld the title of ACORP # 02235 pursuant to Exemption 3. Therefore, the Court GRANTS IN PART and DENIES IN PART the VA's Motion for Summary Judgment and GRANTS IN PART and DENIES IN PART WCW's Cross-Motion for Summary Judgment.

II. Background

The following facts—drawn from the parties' submissions—are undisputed. See, e.g. , Def.'s Statement of Undisputed Material Facts ("Def.'s SOMF"), ECF No. 10-2 at 1-8; Pl.'s Counter-Statement of Material Facts ("Pl.'s SOMF"), ECF No. 13-2 at 1-16.¹ Because the VA does not dispute the facts in WCW's Counter-Statement of Material Facts, see Def.'s Reply, ECF No. 16 at 1-12, the Court assumes the facts identified by WCW are admitted, see LCvR 7(h)(1) ("In determining a motion for summary judgment, the Court may assume that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion.").

A. Factual Background

WCW, a non-profit organization, aims to "unite animal-lovers and liberty-lovers to expose and end wasteful taxpayer-funded animal experiments." Pl.'s SOMF, ECF No. 13-2 at 9 ¶ 17. McGuire VAMC is one of the facilities carrying out the federally-funded experiments on dogs. Id. at 10 ¶ 24. The VA's animal research protocols indicate that "some [of] McGuire VAMC's dog experiments involved the highest pain classification—Category E—where animals are subjected to intense pain with no access to pain relief." Id. at 10 ¶ 23. In response, WCW requested that the VA's Office of Inspector General open an investigation into the experiments. Id. at 10 ¶ 25. At some point, WCW asked its supporters on social media to contact McGuire VAMC's Public Affairs Officer to express their opposition to the experiments. Id. at 15 ¶ 51.

The experiments at McGuire VAMC garnered media attention. Decl. of Justin Goodman ("Goodman Decl."), ECF No. 13-3 at 5-10 ¶ 17 (stating that "more than fifty separate news stories detail[ ] the controversy over the McGuire VAMC's dog experiments"). Between 2016 and 2017, federal and state lawmakers took certain actions in response to the experiments. Pl.'s SOMF, ECF No. 13-2 at 11 ¶¶ 28-31. Members of Congress submitted a request to the Government Accountability Office to perform an audit of the federal agencies conducting the experiments, id. at 11 ¶ 28; state legislators sent a letter to the Governor of Virginia inquiring about the Commonwealth's role in the experiments, id. at 11 ¶ 31; and the United States House of Representatives unanimously passed an amendment to defund the experiments at the VA's facilities for fiscal year 2018, id. 11 ¶ 30. On July 12, 2017, two members of Congress introduced the "Preventing Unkind and Painful Procedures and Experiments on Respected Species Act of 2017" or the "PUPPERS Act of 2017" to "prohibit the Secretary of Veterans Affairs from conducting medical research causing significant pain or distress to dogs." H.R. 3197, 115th Cong. (2017); see also H.R. 1155, 116th Cong. (2019).

B. WCW's FOIA Request

On January 10, 2017, WCW submitted a request to McGuire VAMC seeking the following three categories of records:

[1] A current census of all dogs actively held and used in the McGuire VAMC laboratories (including each animal's ID number, breed, name, color and distinctive markings, date of birth, source, USDA pain category, and assigned protocol). Such records must be maintained and made available to the public per 9 CFR § 2.35 (Recordkeeping requirements of the Animal Welfare Act)[;]

[2] Photographs and videos of these dogs[; and]

[3] Active Institutional Animal Care and Use Committee (IACUC) approved protocol/s to which these dogs are assigned[.]

Pl.'s SOMF, ECF No. 13-2 at 1-2 ¶ 1 (quoting Decl. of Emily Fuemmeler ("Fuemmeler Decl."), ECF No. 10-5 at 2 ¶ 5).²

Thereafter, McGuire VAMC conducted a search for materials responsive to WCW's FOIA request. Id. at 8-9 ¶¶ 14-16 (citing Decl. of William Maragos ("Maragos Decl."), ECF No. 10-6 at 2 ¶¶ 5-6, 8-10). Following the VA's release of certain responsive materials to WCW on March 1, 2017, id. at 2 ¶ 3, WCW then administratively appealed certain redactions in the VA's initial production, id. at 2 ¶ 4. The VA redacted information, including the names of the principal investigators and the protocol titles, under claimed FOIA Exemptions. Id. at 2-5 ¶ 5.³

Before the VA responded to WCW's administrative appeal, WCW submitted a FOIA request to the National Institute of Health ("NIH") in April 2017 to obtain certain reports from five facilities, including McGuire VAMC, regarding the noncompliance with the AWA. Id. at 9 ¶ 19. In turn, NIH released documents showing that: (1) "McGuire VAMC researchers failed to comply with federal humane care regulations under the AWA, resulting in the deaths of three dogs during experiments in 2016," id. at 9 ¶ 19; and (2) "the McGuire VAMC IACUC warned the facility that future AWA violations could result in suspension or terminations of [Dr.] Tan's animal protocol," id. at 10 ¶ 21. One of the reports contained within NIH's production stated that a principal investigator at McGuire VAMC, Alex Tan, M.D. ("Dr. Tan"), "showed ‘reckless behavior’ and ‘lack of foresight’ after cutting open a dog's lung during a heart surgery." Id. at 9 ¶ 20 (quoting Goodman Decl., ECF No. 13-3 at 2 ¶ 6).

On August 25, 2017, the VA issued its "Final Agency Decision," concluding, inter alia , that: (1) its application of Exemption 6 allows withholding the personal information of the research personnel, including the principal investigators, because those individuals "have a privacy interest in being protected from annoyance and harassment," id. at 2-3 ¶ 5; (2) "[r]elease of their names, locations, or room numbers where they work may also open these individuals to potential attack, harassment or threatening behavior," id. at 3 ¶ 5; and (3) "[a]ny general public interest will be satisfied once the research protocols are released to the public on [the] VA's website, after the research is completed," id . Asserting Exemption 5, the VA also concluded that:

The release of certain portions of this research, such as the names of the principal investigators and research personnel would have a chilling effect on the ability of the agency official to discuss and evaluate issues raised in the research frankly and openly before the research is completed, because these individuals may fear for their safety and stop the research prematurely.

Id. at 4 ¶ 5.

Finally, the VA concluded that Exemption 3 justifies withholding the protocol title contained in ACORP # 02235 because "ACORP # 02235 contains information that is confidential and privileged, trade secret information, as well as information that is pending patent pursuant to 35 U.S.C. § 205, which protects the Confidentiality of Patents." Id. at 5 ¶ 5. The VA stated that "the Federal Technology Transfer Act (‘FTTA’), [which] allows federal agencies the discretion to protect any commercial and confidential information that results from a Cooperative Research And Development Agreement (‘CRADA’) with a nonfederal party, has been held to qualify as an Exemption 3 statute." Id. (citing 5 U.S.C. § 3710a).

C. Procedural Background

On June 14, 2017, WCW filed the present action. See generally Compl., ECF No. 1. After litigation had already begun, the VA released certain information in response to WCW's administrative appeal, but the VA stood by its initial conclusions to withhold the names of...